EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Cruz Lagbas -claimant UD143/2013
Against
Murray Design & Engineering Limited
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr M. Carr
Mr J. Moore
heard this claim at Monaghan on 14th January 2014
and 6th May 2014
Representation:
_______________
Claimant: Mr Dara Murtagh, Dara Murtagh, Solicitors, Main Street,
Kingscourt, Co Cavan
Respondent: Mr. Eamonn Carolan, Patrick J. Carolan & Co., Solicitors,
Market Square, Kingscourt, Co. Cavan
Dismissal is not in dispute in this case. The claimant was dismissed after a number of incidents that occurred on the respondent premises, a design and engineering firm.
Respondent’s Case
The claimant was a machine operator. RZ, another machine operator, gave evidence of incidents that led to the claimant’s dismissal. RZ became a supervisor after working for the respondent for 6 months, after a period of lay-off RZ returned as a normal employee. RZ worked alongside the claimant and 2 others in the machine shed. The employees were all of various nationalities. The machine shed held large machines for cutting steel.
RZ gave evidence of the claimant’s aggressive and violent behaviour and in particular and incident where he threw a heavy steel bolt at another employee. The bolt did not hit the other employee. This incident occurred and was reported to a Director in 2008.
In March 2011 RZ felt threatened when he turned around to discover the claimant standing behind him holding a large piece of steel. RZ asked what the claimant was doing, RZ stood still and eventually the claimant put the steel down. RZ reported the incident and attended a meeting on the 11th of March 2011 to outline his complaint. The claimant was issued a written warning.
PV, another machine operator gave evidence regarding the claimant’s behaviour. PV and the claimant had numerous arguments; the claimant always wanted to fight. PV witnessed the incident where the claimant held the steel to RZ.
On the 7th of December 2012 PV was waiting for the claimant to finish using the forklift. The forklift was shared between the employees. When the claimant removed his steel from the forklift PV got into use it. PV felt something hit the forklift so stopped and turned the engine off. PV did not notice that there had been a piece of the claimant’s steel left on the forklift; the claimant lifted the steel up and threatened PV with it. The piece of steel touched PV’s head but did not hurt him; the claimant was very angry. The claimant then threw his tool that is used to clean the plasma machine. PV reported the incident to the production manager.
A meeting was held where PV outlined his complaint. When asked if he wanted the Gardaí, PV said yes. There was no further action taken by the Gardaí.
PV did not write a note and leave it in the claimant’s tool box. Everybody helped each other out if they were not too busy. PV would ask someone else first for help before the claimant due to his bad manner.
JR, a supervisor, witnessed the incident that occurred between the claimant and PV in December 2012. JR heard steel strike steel, when he looked he saw the claimant jabbing a piece of steel at PV. JR reported the incident later as his managers were in a meeting at the time.
On the 14th of June 2012 JR, instructed the claimant to carry out a task. Later the claimant started shouting, using bad language and gesturing at JR. JR did not know what was wrong with the claimant only that he was annoyed. JR reported the incident. Bad language and hand gestures were not normal in the respondent.
LM, Director of the respondent gave evidence. The claimant signed his contact of employment which included the grievance and disciplinary procedure. The claimant never made any complaints about his colleagues.
The claimant was very reasonable up to the first incident. As a result of that first incident the claimant was given a week’s paid suspension in order to calm down and reflect on his behaviour. Following an investigation into the March 2011 incident concerning RZ the claimant was issued a final written warning. The claimant refused to sign this final written warning until he received legal advice.
LM was not present until the evening of the final incident in December 2012. He instructed PK to investigate the incident on his behalf. PK interviewed everyone and carried out a thorough investigation. Having reviewed all versions of events and being satisfied that all parties had their fair say, LM was left with no option but to dismiss the claimant. The evidence was 100% clear; LM feels very lucky that the steel did not “split PV’s head” he had no alternative but to dismiss the claimant. Regardless of the previous incidents, the final incident qualified as Gross Misconduct meriting summary dismissal.
LM did not interview the claimant; he met him to dismiss him. The claimant did not deny throwing the steel or holding the steel to PV’s head; he only denied jabbing the steel at PV. The claimant’s representative sought redundancy on his behalf; this request was denied as it was not a redundancy situation, the claimant was replaced. The claimant did not appeal the decision to dismiss him, an independent appeal officer would have been appointed to hear the appeal.
PV reported the incident to PK in December 2012. PK immediately spoke with both PV and the claimant to get both versions of the incident. PK then spoke to other staff members that were in the vicinity. All of the witnesses corroborated PV’s version of events.
The claimant did not make any complaints about his work colleagues.
Claimant’s Case
The claimant commenced working with the respondent in 2008. The claimant denies throwing anything at another employee. He does not recall any incidents; he did not threaten any staff member and was not aggressive or abusive. The time off was not a suspension but forced annual leave as business was quiet. The claimant denies ever having sight of or receiving the written warning. On cross examination the claimant accepts that he refused to sign the letter of warning as he disputes the incident and wanted to seek advice. Although the claimant accepts his signature is on the letter he does not recall receiving it.
The claimant began having problems in work when he was moved to an area to work with PV, RZ and another. They called him names and wrote bad words at his work station. The claimant complained to both PK and LM. The claimant ‘rolled’ the steel at RZ, he did not hold it up in the air.
The claimant has recalled on the second day of hearing that a supervisor attempted to ‘head butt’ him.
The claimant was using the forklift, he had removed only 2 metal bars from the forklift when PV came and took it. The claimant told PV that he was not finished yet and then removed the final metal bar; he did not poke or hit PV with the metal bar, he did not go near PV.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Determination
Having carefully considered all of the evidence adduced by both parties, on the balance of probability the Tribunal prefers the evidence of the respondent. The Tribunal finds that the claim Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)