EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD155/14
EMPLOYEE -claimant RP681/13
Against
EMPLOYER
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. L. Tobin
Mr N. Dowling
heard this claim at Dublin on 27th January 2014.
At the outset of the hearing, the respondent was in agreement to have the respondent’s name amended to read the correct legal entity. Also the claim under the Redundancy Payments Acts, 1967 to 2007 was withdrawn.
Representation:
Claimant: Mr. Ciaran MacLoughlin BL instructed by Mr. Luke Hanahoe, Hanahoe & Hanahoe, Solicitors, 16 North Main Street, Naas, Co. Kildare
Respondent: In person
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant had worked for the respondent for over a year in the period 2006/2007. Subsequently he worked as a freelance consultant and in April 2010 recommenced working for the respondent in a full time capacity. He was not furnished with a contract of employment or a job description.
He attended meetings with the Managing Director (SF) on a regular basis. At these meetings he was constantly told to get out and sell or he would be let go. JD a co employee attended the group meetings. The claimant was constantly being picked on and was told his figures were bad. SF was constantly threatening the claimant.
In July 2012 the claimant suffered ill health and was hospitalised for nine days. He was subsequently absent from work on sick leave for approximately two months. He returned to work in September 2012. His area of work had been delegated to three other staff members. He had lost clients.
Following a family bereavement he tried to talk to SF. SF did not want to hear excuses and at this time he felt bullied by SF. On one occasion he was blamed for the loss of an advertisement he had secured. He had passed this to the typesetter and it was he who had lost the advertisement.
During a conversation with SF on 6th December 2012 he was constantly told that by SF ‘I will have to fire you’ and the claimant’s response was ‘fire me’ but he did not mean it.
The claimant’s employment was terminated on 12th December 2012.
The claimant has not secured alternative work since the termination of his employment.
Respondent’s Case:
The respondent (SF) is Managing Director and has been working in the newspaper industry for seventeen years. A decision was taken in the company on 30th September 2012 to relocate from Kildare to Wicklow following the discovery of fraud in the company. This cost the company a considerable amount of money. The Sales Manager and the Assistant Manager were let go. JF called the remaining staff together and was prepared to give the business a go. He injected substantial savings into the business.
Staff were asked to car pool once a week and motor expenses were paid.
The claimant had worked for a period from April 2006 to June 2007 and later that year acted as a freelance sales consultant. He recommenced employment in April 2010. He was an experienced Sales Manager. An action plan was in place and reviewed weekly. Meetings were held with staff either on a one to one or in a group situation. The claimant had performed well in the past under direction but for the best part of a year he was not meeting his targets even though they had been lowered. At a meeting held with the claimant on 6th December 2012 SF discussed the claimant’s sales figures being consistently below par for several weeks and his failure to attend sales meetings. The claimant had both health and domestic issues. When SF asked the claimant what he should do the claimant's response was ‘fire me’.
With effect from 12 December 2012 the claimant’s employment ceased. In a letter to the claimant of even date SF stated that he would be happy to discuss the claimant’s return to work when he was feeling better and able to the commit to the job.
The claimant was not made redundant or unfairly dismissed by the respondent. SF was sorry to see him leaving the company. The claimant was subsequently furnished with his P45 and any monies owing to him.
Determination:
The Tribunal carefully considered the evidence adduced during the course of the hearing. The Tribunal noted with concern that the claimant did not have a contract of employment. Clearly, there was a lack of procedures in the company.
The Tribunal determines that the claimant was unfairly dismissed, however, it is considered that the contributed significantly to his own dismissal. In the circumstances, the Tribunal awards him €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)