UD1376/2011, RP1834/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath BL

Members:     Mr D. Peakin

                    Ms M. Maher

heard these claims at Dublin on 7 December 2012, 15 April 2013 and 29 January 2014

Representation:

Claimant:              

                     Ms Karen Nolan B.L. instructed by on the first two days

                     Mr David Hickey on the third day Mr Eoghan O’Reilly,      

                     both of F.H. O'Reilly & Company, Solicitors,

                     North Circular Road, Phibsborough, Dublin 7

Respondent:        

         Managing Director of the respondent

Determination:

The Tribunal has carefully considered the evidence in the course of the two days evidence heard. The claimant makes the case that the termination of his employment was unfair in all the circumstances and that the onus must therefore rest with the respondent company to demonstrate that it has acted fairly and reasonably in its making a decision to terminate. It is noted by the Tribunal that the claimant was paid a redundancy package at the end of his employment. The respondent company maintains that the redundancy is a genuine one and must be considered against a backdrop of a declining construction maintenance and repairs industry. In line with the legislation the claimant, who it is noted took his redundancy package, makes the case that the redundancy was not a genuine one and was in fact a tactical payment meant to soften the blow of losing a job of nine years duration and service.

The claimant is profoundly deaf and the Tribunal engaged the services of sign language interpreters and the Tribunal is satisfied that the claimant fully understood the nature of the evidence and the complexity of the issues before the Tribunal.

The claimant is a carpenter by trade and had been employed by the respondent company primarily to work the on-going maintenance, upkeep and repairs contract with the Dublin Fire Brigade (DFB).

It is generally accepted that the claimant was rostered to work each week to work in various different Fire Brigade stations around the cities. The claimant’s foreman a Mr MF had the job of directing the claimant on a day-to-day basis. The Tribunal was shown evidence of time sheets kept in the company which gave an overview of the claimant’s working week. Ultimately these time sheets were signed off by a Mr RW and then submitted to Dublin City Council for the purpose of billing for the claimant’s hours.

It is accepted by the respondent managing director a Mr WR that he would direct the claimant from time to time to work on sites other than those owned by DFB. As an employee of Mr WR the Tribunal can perceive no difficulty with this practice. The respondent company is perfectly entitled within reason, to request the claimant to use his expertise and skill in premises which might have been privately owned by the respondent employer. There does, however, appear to have been a bit of resentment built up in the course of this practice and the question of expenses and travel time had become an unresolved issue for the claimant over time.

Quite by accident, the claimant came across some irregularities in a number of the time sheets that were being submitted in respect of the hours he had purportedly worked in the DFB premises.

In essence, his evidence was that on a number of occasions the DFB had been wrongly billed for a few hours that the claimant was either working privately for Mr WR or was simply not in work at all. It is noted that the several incidents were never more than a few hours on each occasion.

It seems to the Tribunal that the claimant attributed wilful wrongdoing and not mistake to his employer. Mr WR robustly refuted this position in the course of the hearing.

The claimant opted not to take up this incorrect billing with his foreman and went instead to Mr RW who he perceived to be the appropriate person to deal with this matter within the Fire Brigade services.

The Tribunal had sight of the letter of 31 August 2010 written by the claimant to Mr RW and it is noted that the claimant believed this complaint would be treated confidentially. On the other hand the claimant clearly appreciated how the net result of any finding of wrongdoing on the part of his employer might result in the loss of the DFB contract to the employer. This contract was essential to the claimant’s employment.

Ultimately, Mr RW went to his superiors in the Dublin City Council, (DCC) and Mr WR of the respondent company was called in to explain the irregularities. Unfortunately for the claimant, no attempt was made to conceal the claimant’s identity.

In the aftermath of a meeting with DCC, Mr WR asked the claimant to immediately attend a meeting with Mr WR and to bring in the “Proof papers” that he intended to send to DCC, (Per the letter of 31 August 2010).

At the meeting held on 30 September 2010 the claimant was suspended without pay pending an investigation. The Tribunal fully accepts that the suspension without pay was a punitive measure and done in advance of any investigation being carried out and probably done as an angry reaction to the respondent belief that it had been somehow betrayed or let down by its employee of nine years. In evidence the respondent indicated that the decision was made in the course of the meeting and as a consequence of the lack of “Proof paper”.

On balance the Tribunal accept that this meeting of investigation deteriorated into a disciplinary meeting.

Of note to the Tribunal was the somewhat independent evidence of a Mr F, trade union representative acting in the claimant’s interest. The claimant had approached Mr F at a date in early to late August 2010 seeking assistance in relation to some issues that the claimant had with the respondent company. It seems to be generally accepted the Mr F had no part in the third-party complaint, involving DFB, raised in respect of the charging of remuneration and Mr F only came to know of the DFB issue when he attended the meeting of 30 September together with his member, the claimant.

Mr F stated quite clearly that he understood that the claimant had been unhappy in his workplace and had suggested that Mr F should raise the issue of a redundancy package for him and this request was raised well in advance of the DFB issue ever having been made known to Mr F at the 30 September meeting.

In light of the foregoing Mr F, in a pragmatic way, ultimately introduced the issue of a redundancy package and the respondent gave this some consideration. The Tribunal accepts that Mr F was acting in the best interests of his members in terms of creating an exit strategy.

So it was that between 30 September 2010 and 26 October 2010 no further investigation was entered into by the respondent company. Therefore the Tribunal’s only example of procedures that the respondent implemented in the workplace was the meeting of 30 September which utterly lacked fairness by reason of the decision to suspend without pay.

On 26 October 2010 the claimant took a Statutory redundancy payment of in and around €12,000.00, and the Tribunal notes that the employer had a 60% rebate on this sum.

Subsequently and having considered his position, the claimant believed that the redundancy was not a genuine one and that he was in fact unfairly dismissed.

The Tribunal accepts that there was not a genuine redundancy situation in October of 2010 and that had the claimant’s confidential status been retained, the claimant’s position would surely have been retained until at least June of 2011 at which time the DFB contract was lost to the respondent company. The Tribunal cannot know whether the loss of this contract was as a consequence of the claimant’s action or not. It is simply a matter of fact that the contract was lost and with it was presumably the loss of the claimant’s job.

On balance, the Tribunal accepts that the claimant was unfairly dismissed in that the employer’s reaction to the issue raised by the claimant lead to an over-reaction and unfair reaction on the part of the respondent. The respondent’s own evidence was that the claimant had made an obvious mistake which could have been demonstrated on a full examination of the facts. The employer opted not to go down this route and simply rid itself of this employee.

On assessing compensation the Tribunal is mindful of the fact that the claimant knew or ought to have known that the contract between DCC and his employer was being put at risk. The Tribunal appreciates the claimant did the right thing in highlighting the issue of incorrect billing. The Tribunal does not know what would have transpired had the claimant come to his foreman / employer with the information in the first instance.

The claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds and the Tribunal determines compensation to be the most appropriate remedy and awards the claimant the sum of €20,000-00, under that Act. This is in addition to the redundancy payment.

The claim under the Redundancy Payments Acts 1967 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)