UD852/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Kevin White,   -           claimant                                                                      UD852/2012

Against

Dawn Meats Group T/A Dawn Meats,           -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr N. Russell

Members:        Mr J. Browne

                        Mr F. Dorgan

heard this claim at Waterford on 4th April 2014

Representation:

_______________

Claimant:         Ms Claire Bruton B.L. instructed by,

Mark Walsh, Kenny Stephenson Chapman, Solicitors, Park House,

Park Road, Waterford

Respondent:    Mr. Tim O'Connell, IBEC, Confederation House,

84-86 Lower Baggot Street, Dublin 2

Preliminary Determination

The Tribunal has been asked to rule on two Preliminary Issues raised by Counsel for the claimant.

The first Preliminary issue raised relates to a collection of photographs which the respondent has sought to put before the Tribunal at the outset of the hearing. Having considered the respective positions of both parties, the Tribunal rules that only those photographs shown to the claimant during the course of the investigative and disciplinary processes will be admitted when introduced in evidence in the normal way. Should the claimant dispute that any of these photographs were shown to him, this dispute shall be a matter for cross-examination and submission

The Tribunal, however, reserves the right to admit any other photograph of the workplace electrical installations or otherwise that it considers would be of assistance to it in understanding any evidence given provided, however, that no such photograph will be viewed if the Tribunal is of the opinion that to do so could prejudice the claimant.

By way of a further Preliminary Issue Counsel for the claimant objected to the Tribunal hearing the evidence of LP,GOR,FT and FD on the following grounds:

• That none of the foregoing had any active part in the Investigative/ Disciplinary Processes

• That no evidence or statement from any of the foregoing was put to the claimant during the investigative/disciplinary processes so that he was denied the opportunity to challenge.

• That to allow such witnesses to give evidence to the Tribunal could be tantamount to the Tribunal holding a rehearing of the complaint against the claimant with new evidence introduced that was not given during the course of the investigative/disciplinary processes.

• That allegations could be made or information given by these witnesses that was never put to the claimant previously.

• That prejudicial evidence might be adduced before the Tribunal that was never put to the claimant during the investigative/disciplinary processes.

It appears to be agreed between the parties that the minutes of the disciplinary meeting dated 7/12/2011 and of the appeal dated 17/1/2012 are an accurate account of both meetings save that, at the appeal Meeting, Mr W, Solicitor for the claimant, sought a single amendment to the minutes of the disciplinary meeting. Both parties were in agreement that the Tribunal could consider those minutes and the contents of both booklets introduced to the Tribunal when considering the Preliminary Application for exclusion of witnesses.

To assist the Tribunal, the respondent’s representative gave a brief indication to the Tribunal of the purpose for which she wished to call each disputed witness:

• L.S would be called as one of the two supervisors on the night of the 29^th November 2011 to give evidence that he did not have a discussion on that night with the claimant. Counsel informed the Tribunal that this was not in dispute as a matter of fact. Accordingly, the Tribunal has noted on the record that it is common case that there was no discussion between these two parties. Accordingly, the Tribunal will not need to hear evidence from this witness.

• GOR was the second Supervisor on duty on the night of the 29^th November 2011. He would give evidence of his dealings with the claimant on the night of the 29^th November 2011.

It does appear that the information given by GOR to the respondent’s investigative team was relevant to and considered in the context of the decision to dismiss.

The claimant’s objection to this witness is by particular reference to the fact that he was not copied with the statement that appears to have been taken from this witness nor afforded an opportunity to challenge that statement.

The Tribunal will not prevent the respondent from calling evidence that may have probative value in the issues before the Tribunal on the basis of assertion by the claimant that some of the evidence might be prejudicial.

The Tribunal will hear the evidence of this witness as the issues raised by the claimant are relevant to the question of the fairness of the procedures adopted by the respondent a matter that can be explored in cross-examination and in the closing submission to the Tribunal by counsel for the claimant

In arriving at this decision the Tribunal has had due regard to the minutes of the disciplinary meeting on the 7/12/11 and preceding letter to the claimant of the 2/12/11. These would, on a preliminary reading only, appear to suggest that the issues were put to the claimant and that the claimant may have had an appreciation of the information with which the Respondent was working. However, this is a substantive issue in respect of which the Tribunal cannot arrive at a Determination without hearing the evidence.

It is a matter to be explored on cross-examination as to whether, as alleged, insufficient information and inadequate specifics were given to the claimant to enable him to challenge and respond to allegations made against him. The determination on this issue will ultimately be a matter for the Tribunal.

• FJ ,who is a qualified Electrician and has Health & Safety Training would give evidence of the state of repair in which he found a particular electrical panel.

The Tribunal will hear this evidence. The letter to the claimant of the 2/12/2011 and the minutes of the disciplinary meeting of the 7/12/2011 show that the claimant was informed that it was a panel issue and not simply a response to the weather that led to the power cuts. As the Tribunal understand it, this witness will give evidence on the condition of the panel as found by him.

The Claimant can test this evidence on cross-examination and, further, can test during the course of the hearing before the Tribunal, the extent to which these findings in respect of the state of repair of the panel were put to the claimant and the extent to which he was given an opportunity to challenge or comment on such findings. The claimant will have the opportunity to question the fairness of the procedures followed by the respondent in this regard

As one of the issues in this case is the fairness of the procedures adopted by the respondent, this Tribunal is of the view that this is an issue that can be determined only on a full hearing of the substantive case. The Tribunal will not be re-running the respondent’s case against the claimant; however, the Tribunal is entitled to hear the evidence relied upon by the respondent in reaching its decision.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)