EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Stephen Kavanagh UD1043/2012
MN672/2012
against
Ray O'Brien Group Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O'Carroll-Kelly BL
Members: Mr. J. Horan
heard this case in Dublin on 15 November 2013
and 15 May 2014
Representation:
_______________
Claimant(s):
Lalloo & Co, Solicitors,
Dublin 7
Respondent(s):
Main Street,
Newbridge,
The determination of the Tribunal was as follows:-
It was claimed on behalf of the claimant that he had been unfairly dismissed after an inadequate investigation into the circumstances of his driving an articulated lorry on a date in April 2012. It was alleged that he had not been guilty of gross misconduct warranting dismissal. Compensation was sought.
On behalf of the respondent it was contended that the claimant had not been an employee of the respondent but that, without prejudice to that point, the claimant had been fairly dismissed for gross misconduct after a thorough investigation.
Determination:
Having carefully considered the issues in this case, the Tribunal was satisfied that the claimant’s unfair dismissal claim and minimum notice claim were properly before the Tribunal. The claim under the Unfair Dismissals Acts, 1977 to 2007, and under the Minimum notice and Terms of Employment Acts, 1973 to 2005, proceeded.
The claimant was employed as a transport manager for the respondent. On 20 May 2011the claimant took a phone-call from a member of An Gárda Síochána in relation to the removal of a vehicle from the M9 motorway. There is a conflict in the evidence in relation to the authority he was given by An Gárda Síochána to remove the vehicle without the appropriate licence. However, when questioned by theTribunal, Gárda Scully stated that the claimant would not be prosecuted by the gárdaí in the circumstances of this case.
Following the event the claimant was suspended with pay and, the following Monday, was called into a meeting on his understanding it was about an “insurance” issue. He was not given a copy of the investigation prior to the meeting. He was not told that it was a disciplinary meeting. He was not told under what stage of the disciplinary process the meeting was being called. He was not advised prior to the meeting that he could have a representative at the meeting. He was asked to take his licence into the meeting with him. He was dismissed at the conclusion of that meeting and was not advised he had the right of appeal. These breaches were not contested by the respondent.
There were very substantial breaches of respondent disciplinary procedures which said breaches did seriously prejudice the claimant. The fact that the claimant was asked to bring his licence into the meeting could only be indicative of the respondent’s frame of mind prior to the disciplinary meeting.
In relation to the claimant’s obligation to mitigate his loss he gave evidence that over a 92-week period he made 160 applications for jobs. For months after his dismissal he went back to college and up-skilled in several areas. He set up his own business in February 2014. He is not making much money yet but he is hopeful. He is earning approximately €1,500.00 per month since February 2014. The Tribunal is satisfied that the claimant has satisfied his legal obligation to mitigate his loss.
In all of the circumstances the Tribunal finds the claimant’s dismissal was unfair and accordingly awards him €31,000.00 as compensation in allowing his claim under the Unfair Dismissals Acts, 1977 to 2007.
In addition to the above unfair dismissal award the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, is allowed and the Tribunal orders that the claimant receive the sum of €700.00 (this amount being equivalent to one week’s gross pay) under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)