UD835/2012, MN608/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                            CASE NO.

Ruairi Heuston -claimant                                                                                          UD835/2012

                                                                                                                                    MN608/2012

against

Gregg Martin Crash Repair Limited -respondent

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:        Mr. C. Corcoran B.L.

Members:        Mr. M. Noone

                        Mr. F. Keoghan

heard this claim at Dublin on 30th August 2013

                                        and 12th March 2014

Representation:

Claimant: Mr. Owen Keany BL instructed by Barry Collins and Company,

               Solicitors, 36 Upper Fitzwilliam Street, Dublin 2

Respondent: Mr. David O’ Loughlin BL instructed by Mr. Sean Barrett solicitor

                   Maples & Calder, 75 St Stephens Green, Dublin 2

Background:

The respondent is an auto body repair shop and the claimant worked there as a panel beater.

The respondent contends that there was an incident on 7^th October 2011 in which the claimant was threatening and abusive towards the workshop manager (JD) and pointed a screwdriver at JD. The claimant was suspended and statements were obtained from witnesses. The employees did not feel safe with the claimant.   The claimant was dismissed.

The claimant contends that he was subjected to a campaign of isolation and bullying. He contends that you have to look at the background and look solely at the facts of an incident on 7^th October. The incident was the last incident in a long line of preceding events.

Respondent’s case:

The Tribunal heard evidence from a director (BM). He returned to work 7^th October and the workshop manager (JD) told him that the claimant had threatened him. He approached the claimant and the claimant was very aggressive and told him to “f*** *ff”. As this was a Friday he decided to let things cool off. On Monday 10^th October JD handed in a letter of complaint. He again approached the claimant and the claimant again told him to “f*** *ff”.

He suspended the claimant. He had to suspend the claimant because if he did not and the claimant stabbed someone then “where would I be today? ... can’t tolerate any violent behaviour.”

He met the other director and they decided to dismiss the claimant. He met the claimant and told him that he had no option but to let him go “because if someone was stabbed……”

The witness explained that there was no campaign of ill will against the claimant it was quite the opposite.   The claimant had been diagnosed with cancer and they gave him light duties.

At one point in time the claimant had no work and they asked the claimant to select a job from three different jobs but he declined and said he could not do any of them. The claimant told them the he was going to the citizens advice centre (CIC).

In cross-examination it was put to the witness that the claimant had not been offered overtime for some months. The witness explained that the claimant was slower than the other workers.

He further explained that they were very good to the claimant and gave him light duties because of his illness.

It was put to him that he never asked the claimant for his version of events and he disagreed that this was so; he had asked the claimant twice for his version of events. The claimant was allowed time off on Fridays for medical treatment and he was paid for the time off.

The Tribunal heard evidence from JD, the workshop manager. He supervised the workshop. On 7^th October the claimant was asked to do something. The claimant swore at him using very abusive and insulting language. The claimant told him that he had “ratted” on him to the director saying that he was going to go to the CIC. The claimant had an implement in his hand. The claimant told him that he would follow him home and that he was warning him. The witness went to TM and told him that he had been threatened.

He had told BM about the claimant mentioning the CIC because he felt that it was his duty to.

They had been informed that the claimant was not well and told to put the claimant on light duties only.

The Tribunal heard evidence from an employee (CB).   He was working in the parts shop and heard a commotion but took no notice. He heard a commotion again and he went to see what was happening. The claimant was using abusive language and was threatening. The claimant had what looked like a screwdriver or a similar implement in his hand. The following Tuesday he was called to the office and asked if he witnessed the incident and asked to write down a statement.

The Tribunal heard evidence from TM

Claimant’s case:

The Tribunal heard evidence from the claimant. He commenced working for the respondent in 2002. He worked as a panel beater. He did not receive a written contract of employment.

He explained that he had a very good relationship with BM and was a very good friend of JD.

He told the Tribunal that in December 2010 he was diagnosed with cancer. Later on in evidence the claimant explained that the cancer was cleared and he was in good health. He told BM about this and BM told him not to worry and that he had just to ask for time off. He had to undergo chemotherapy and when he had to undergo treatment he arranged to do so on a Friday. This was if he was not feeling well he could recover over the weekend. He also asked BM if he could use his annual leave for the times he had to go for treatment. BM told him to keep his annual leave for after the course of treatment and that he would pay him. However it transpired that BM did not pay him for the days he was out having treatment.

Towards the end of his therapy circa January 2011 he was having difficulty with his breathing because his veins were becoming constricted because of therapy.   He collapsed whilst working on a car because he became dizzy because of breathing difficulties. An ambulance was called. Whilst waiting for the ambulance a young colleague who had trained in first aid assisted him. He was much better by the time the ambulance arrived. The ambulance crew took pulse and blood pressure. They then phoned the hospital and they were told that the symptoms occurred because his veins became harder and thinner because of chemotherapy.   The claimant did not go or declined to go to hospital.

The claimant was in work and talking to JD as they had been friendly. He did mention to JD that he was going to go to take legal advice. JD relayed this information to BM. It was not clear in evidence if he explained to JD the nature of the advice. However the claimant explained to the Tribunal that he was to take advice regarding making a will and that he actually did not go to a solicitor but to the citizens information centre.

The claimant had been on light duties such as removing and refitting body parts, but after mentioning the above advice matter to JD he was placed back on duties he had done such as body work on the cars i.e. filling / Isopan work.   Also JD spoke to him in a different tone that he had not before. He also was not asked to do overtime after the event.

Sometime later he was ill and was in hospital. He returned to work a week later. He was placed on the more physical work again and he explained to JD that he would struggle with the work and JD told him that if he could not do the job to go home.   He asked to speak to BM and he spoke to BM. He asked BM what was going on and was there a reason for the treatment he was being subjected to. BM told him whilst laughing that he should not have gone to a solicitor.   He told BM that he had gone to a solicitor to get advice about a will and it was not to do with the company.   He told BM that the company had been brilliant to him and BM told him that he had figured that out. The period of time after that he did not get overtime.

The claimant told the Tribunal that he had an argument with JD regarding ordering of parts and his version is that JD started shouting at him and he did not start shouting at JD. However the claimant did admit he said to JD, “f*** **f or I will break you f******* jaw”. The claimant maintains that he categorically did not have any weapon or otherwise in his hands.

He spoke to BM and BM told him that if he ever threatened any of his staff again he would sack him on the spot. About one hour later BM asked him to meet JD for a cup of tea in the canteen and speak to JD. He told BM that he would not speak to JD unless he had a witness or record the conversation.

The following Monday BM told him to go and sort out the problem with JD and he told BM “No there is nothing to sort out it is done and dusted”.  

The claimant continued to work for two weeks and there was a bad atmosphere in work. The claimant explained the about two and a half weeks after the incident he was given a task to do with Isopan work and he “struggled” with the work. JD called down to him after the work was done and he told the claimant that they were not happy with the work as it had taken him too long and also that there was marks in the paint work. The claimant apologised to JD and told him that he had tried his best.

Circa 02^nd or 03^rd November the claimant obtained a note from his doctor for three weeks sick leave. He went into work to give the note to BM. He handed the note to BM and BM just threw it on a trolley.  

He returned to work and JD told him that BM wanted to talk to him. He went to BM and BM told him that he would have to suspend him. He asked BM why and BM told him that it was for threatening JD. This was three and a half weeks after the incident/ alleged incident.

A letter dated 14^th November 2011 was opened to the Tribunal:

“It is with regret that I have to formally suspend you pending internal investigation due to your threatening behaviour towards other staff.”

The claimant was not paid during the period of suspension. He was not contacted about an investigation.

At some point in time after this the claimant phoned BM and BM said that it was not looking good and he would phone back on the following Monday.   BM phoned him back on Saturday and spoke with the claimant. The claimant asked BM if he was sacking him and BM said that he was. The claimant asked for his p45 and BM said to come in on Monday to collect it.

The claimant called in on Monday and the two women working in the office did not know about the situation. He went and spoke to BM and BM said we are looking for a way to keep you and get rid of JD. The claimant asked BM if he was going to sack him or not and BM said that yes they were going to sack him. The claimant got his tool box and left.

A Letter dated 25^th November 2011 was opened to the Tribunal:

“(the claimant) position was terminated on Friday the 25.11.2011 due to threatening behaviour towards a member of staff.”

The claimant explained to the Tribunal that he was never asked to give his version of events. He was not given a right of appeal.

Determination:

The Tribunal determines that the respondent did not discharge the onus of proof that the claimant was not unfairly dismissed. In particular the respondent did not correctly follow procedures. The dismissal was not a summary dismissal, the respondent took no action for 8.5 weeks. No procedures were adopted by the respondent whatsoever.

The Tribunal determines that compensation be the most appropriate remedy in this case. Accordingly having regard to the circumstance in this case the Tribunal awards the claimant the sum of €40,000.00, as compensation under the Unfair Dismissals Acts, 1977 To 2007.

Under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 the Tribunal awards the claimant €3,400.00, as compensation in lieu of four weeks notice.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)