UD759/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Cathal Crilly – claimant                                                                                UD759/2013

against

Vinmoe Traders Limited - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr T. Taaffe

Members:        Mr R. Murphy

                        Mr F. Keoghan

heard this claim at Dublin on 9th April 2014

Representation:

_______________

Claimant(s):                In person

Respondent(s):            Mr Padraig D. Lyons BL, instructed by:

Mr Fiach McHugh

                                    McKeever Taylor Solicitors

                                    31 Laurence Street, Drogheda, Co. Louth

The determination of the Tribunal was as follows:-

Summary of Respondent’s Evidence:

The respondent company operates a family entertainment centre which includes a fairground. The claimant was employed as a fairground operator. His role was to seat children on rides and supervise while the ride operated. He was dismissed for using his mobile phone while working. The claimant signed a sheet entitled ‘General Information’ on 15^th May 2011 which included the point ‘mobile phones are strictly prohibited while on duty’.

The Managing Director (MD) spoke to the claimant on 12^th August 2012 for having been late and for using his mobile phone while on duty. A verbal warning was put on his file. No appeal was offered. The MD gave evidence that he normally speaks to employees while he walks round the workplace. He makes a note of conversations had on post-its and leaves them for one of the managers, KM, to type out. He did not recall the claimant stating he had phoned to say he would be late.

A manager for the company, KM, gave evidence. She typed the claimant’s verbal warning and added it to his file. She informed the Floor Manager, TM, of the claimant’s absence on the morning of 12^th August 2012. The Floor Manager was not present to give evidence on the day of the Tribunal hearing. KM had not personally witnessed the claimant using a mobile phone whilst operating a ride. A written warning was issued to the claimant on 24^th January 2013 for use of mobile phone while operating a ride. This was based on what the Floor Manager had seen. The warning was co-signed by KM. The letter informed the claimant that the use of phones whilst operating a ride was considered gross misconduct which would lead to dismissal if it occurred again. The claimant signed the letter of warning. He did not dispute the allegation. KM deemed the incident as gross misconduct as he was operating a ride while using his phone.

A different manager, AM, gave evidence. On 2^nd February 2013 the claimant was suspended, with pay, pending an investigation into an allegation of misconduct for using his mobile phone whilst working. AM viewed CCTV footage of the claimant using his mobile phone during working hours and twice whilst operating a ride. She called the claimant to a disciplinary hearing on 15^th February 2013. The claimant was happy to proceed with the meeting unaccompanied. He did not deny that he had used his mobile phone; he said he needed the job as he was in college and needed the money. He was not shown the CCTV footage. She disputed that he asked to see it or to question the Floor Manager. She dismissed the claimant by letter of 19^th February 2013. She told the claimant that he could appeal to the MD.

Summary of Claimant’s Case:

The claimant disputed receiving the verbal warning for 12^th August 2012. He spoke with the MD on that day, but only in relation to being late. He was not informed of any warning. On 12^th August 2012 he phoned the floor manager, TM, to say he would be late. He did not dispute the written warning as he contended that many staff members received warnings that day. This was disputed by KM. The claimant accepted that he had used his mobile phone. He argued that there was no secure place to leave personal belongings and he was sometimes requested by management to phone colleagues for work purposes.

At the disciplinary meeting the claimant asked to see the CCTV footage, but was told it was not there, neither was the floor manager present so he could not question her, so all he could do was say he needed his job. He did not appeal the dismissal as he did not realise he had two weeks to appeal. AM had told him he could speak to the MD. The claimant gave evidence of his loss.

Determination:

The Tribunal carefully considered the evidence adduced both verbal and written. It is satisfied and determines that a procedural deficit was present in the process engaged in which resulted in the claimant’s dismissal. It further determines that this deficit was of sufficient consequence so as to render his dismissal invalid. The Tribunal therefore determines that the claimant was unfairly dismissed and awards him a sum of €4,000 (four thousand euro), under the Unfair Dismissals Acts, 1977 to 2007, in compensation in respect of this dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)