UD1066/2012, MN688/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Jacek Przesmycki – claimant                                                                         UD1066/2012

                                                                                                                        MN688/2012

against

Thomas Farrell & Sons (Garage) Limited T/a Tramore Service Station – 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 N. Russell

Members:     Mr J. Browne

                    Mr F. Dorgan

heard this case in Waterford on 9^th September 2014

Representation:

Claimant:        Mr Derry O’Carroll of Derry O’Carroll & Co Solicitors,

                        4 Ballybricken, Waterford

Respondent:    In person

The determination of the Tribunal was as follows:-

Determination

The claimant was employed on a succession of Fixed Term Contracts. No objective grounds were presented to the Tribunal for this arrangement; however, this is not relevant to the issue of dismissal before the Tribunal for consideration. What is clear, however, is that all contract documents contained a Disciplinary Process.

While there may have been some issues with the claimant’s performance and in particular, his time management, there appear to have been no real issues until Christmas week in December 2011 when the claimant was asked to work Christmas Day. He did not wish to do so as it came at the end of a long working week, however, he reluctantly agreed that he would do so if it was worth his while financially.

There was a conflict in evidence between the parties as to what precisely the claimant was seeking; however, his employer concluded that the claimant wanted a cash payment.

Whether led to believe so or not, the claimant was clearly under the impression that he was to enjoy favourable financial terms for working Christmas Day when he agreed to be rostered accordingly. It was only on the day before Christmas Eve that he was informed that he would not be getting anything other than normal double time payment which would be subject to PAYE/PRSI in the normal way. The claimant worked Christmas Day but advised the Tribunal that he felt that he had been “cheated”. He readily volunteered to the Tribunal that this impacted upon his attitude at work though he remained conscientious in fulfilling his duties.

The details of how this change in attitude was reflected in the claimant’s performance are not entirely clear, however, the Tribunal has little doubt but that the Respondent would have been aware of the shift in attitude.

The respondent issued a First Written Warning on 9^th March 2012. A meeting followed on either 13^th or 15^th March which appeared to go some considerable way towards addressing the issues that had arisen. TF for the respondent believed that matters could move forward in a positive way after that meeting, however, at the Tribunal, the claimant indicated that he really felt that he had simply “bought some time” and that TF still had it in mind to dismiss him.

The subsequent 3 month contract which issued to the claimant with its attempt to exclude the provisions of the Unfair Dismissals Acts from the parties contractual relationship only served to reinforce the claimant’s belief that his future with the respondent was extremely uncertain. The Tribunal is of the opinion that any bond of trust that had existed between the parties was very fragile at this point.

A letter of dismissal issued on 20^th March 2012. There was an evidential conflict as to the background against which this letter issued. TF for the respondent advised that, notwithstanding what he saw as the claimant’s commitment given at the meeting of 13^th/15^th March to do better, the claimant had continued as before and seemed to be essentially “putting it up” to TF, leaving him no option but to issue the letter of 20^th March 2012.

The claimant’s evidence is that he was dismissed for refusing to sign the 3 month contract presented to him.

Following a heated exchange between the claimant and TF on the 21^st March 2012 surrounding an issue with the operation of the till system (fuel payment) by the claimant, he was asked to leave the premises immediately.

The manner in which the disciplinary issue with the claimant was addressed by the respondent was procedurally defective and did not comply with the respondent’s own Disciplinary Procedure. The claimant was denied natural justice and a fair opportunity to challenge the complaints against him, to make representations and to be heard in his own defence. While there may well have been issues with the claimant that needed to be addressed, the dismissal of the claimant was a disproportionate response.

The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €9,500.00.

The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 succeeds and the claimant is awarded the sum of €950.00 being two weeks’ pay.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)