EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Maurice Morrissey, - claimant UD1039/2012
against
Central Garage Clonmel Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Mr J. Hennessy
Mr P. Trehy
heard this claim at Thurles, County Tipperary on 13th February 2014
Representation:
Claimant : Eamonn Woods, Union of Motor Trade Technical & Industrial Employees,
59 Meadowpark Ave, Churchtown, Dublin 14
Respondent: John Goff Junior, Nolan Farrell & Goff, Solicitors, Newtown, Waterford
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent company trades as a car dealership and over the period of the claimant’s employment also operated a repairs and services business.
The service manager of the respondent company allocated a job to the claimant which involved the checking of a vehicle to establish the fault and estimate the repair costs. The claimant indicated that he could not identify the exact fault and suggested that it was possibly the cam shaft sensor. On her suggestion the claimant contacted a main dealer and a job card included the timing chain and camshaft sensor. Before ordering the parts the witness consulted the claimant on exactly what parts would be required. He indicated the timing chain was the only part required which she ordered and booked the car in for repair.
On the 14 March the claimant arrived for work and the witness told him the car was in for repair. His initial response was that maybe she should have ordered the cam shaft sensor which she interpreted as him attempting to put obstacles in the way of getting the repair job done.
The witness reported this to the managing director. At that stage the managing director (EO’B) took the decision to pass the repair job on to another garage to avoid any delay for the customer. The following day she attended a meeting with the claimant and the MD.
The owner of the garage who carried out the repair (EN) gave evidence on behalf of the respondent. The witness explained that his garage had three types of diagnostic testing equipment available to him. His evidence was that the diagnostic equipment is constantly updated and he could not comment on what type of equipment the claimant had available to him at the respondent company.
The managing director (EO’B) explained to the Tribunal that from June 2009 the business was suffering financially and due to the lack of work the claimant’s working hours were reduced. By October 2009 the claimant was on three days per week. Following the claimant’s dismissal he did not employ another mechanic but instead engaged a mechanic as and when required. The workshop remained open for a year and a half after the dismissal.
Following the report by the service manager of the claimant’s behaviour it appeared to him that the claimant did not want to do the job. He suspended the claimant with pay by letter dated the 14 March 2012. At an investigation meeting the witness asked the claimant to read carefully the allegations. The claimant highlighted the allegations which he disagreed with and there was a clear conflict between the facts given by the service manager and the claimant’s facts.
The MD was of the opinion that the claimant was unreliable and he believed the service manager’s account of what happened. The witness relied totally on the claimant for the mechanical side of the business and was concerned for the reputation of the business and the safety of customer vehicles. He took the decision to dismiss the claimant for gross misconduct. The witness denied ever receiving any communication from the claimant or his representative seeking an appeal against the dismissal. It was accepted that he referred the repair job in question to another garage without consulting the claimant and accepted that he suspended the claimant without hearing his side of the story.
The claimant was employed by the respondent for over forty years as a mechanic. His evidence to the Tribunal regarding the incident which led to his dismissal involved him carrying out a vehicle check which indicated the code for a fault with the cam shaft sensor. In the claimant’s opinion the code reader is a guide only.
As he was not entirely sure what the fault was he sought to carry out a full diagnostic check on the vehicle. On the suggestion of the service manager he spoke to a main dealer who was helpful and based on the code agreed the fault could possibly be the timing chain rather than the cam shaft sensor as the code reader was indicating. He did not accept the evidence of EN that examining the timing chain would have established if the fault was the chain as in modern chains there is no noise or evidence of wear and tear as with older models.
The following day the service manager informed him that the customer wished to go ahead with the repair. He asked if the cam shaft sensor was ordered. The previous day he had informed her it was not required and that a full diagnostic check was required. He did not have the authority to organise a full diagnostic check and in the meantime the service manager had gone ahead and booked the vehicle in for repair. He denied attempting to put obstacles in the way of carrying out the job and was given no opportunity to discuss the repair job with EO’B. He was handed a suspension letter on the 14 March 2012 and had no idea why he was suspended. At the meeting the service manager’s account of what happened was read out to him and he objected to points included in the statement. The respondent informed him of his dismissal for gross misconduct. The claimant was of the belief that his representative had sought to appeal the dismissal on his behalf.
Determination
The Tribunal having considered the evidence adduced at the hearing by the respondent that the allegations and findings against the claimant amounted to gross misconduct warranting the claimant’s dismissal. The Tribunal cannot accept this contention that there was any intention by the claimant to obstruct the respondent from carrying out the repair on the vehicle or that he was guilty of gross misconduct. It was noted that the claimant was attempting to establish the fault without having the aid of diagnostic equipment and admitted he was not familiar with the particular model.
The respondent failed to establish the claimant’s account of what occurred before taking the decision to suspend him. The respondent dismissed the claimant without giving him adequate time to consider the allegations put to him and did not afford the claimant the opportunity and time to explain how he viewed the proposed works to be carried out. After all he was the mechanic with the expertise in mechanical matters with limited equipment.
The Tribunal finds that the claim is entitled to succeed under the Unfair Dismissals Acts 1977 to 2007 and that the appropriate award to the claimant is compensation in the sum of €29,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)