EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Colin Carrick UD831/13
- claimant
Against
Dublin Stevedores Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr C. Lucey
Ms M. Maher
heard this claim at Dublin on 24th June 2014, 8th October and 9th October 2014.
Representation:
Claimant: Ms Shelly Horan BL, instructed by Mr Joseph Burke, McCartan & Burke, Solicitors, Iceland House, Arran Court, Smithfield, Dublin 7
Respondent: Mr. Brian Kearney BL, instructed by Thomas Barry & Co, Solicitors, 11 St Stephens Green, Dublin 2
The determination of the Tribunal was as follows:-
Claimant’s Case:
The respondent operates cargo handling at Dublin Port. The claimant commenced employment in September 2001 in the role of Assistant to Operations Manager. He worked a thirty nine hour week with overtime. He was dependable, hard working and approachable. He never refused the offer of work. He never had issues with his timekeeping. His father set up the respondent company with JN in 1992. They were life long partners. JN had been part of his life.
That same year older employees who had worked for the respondent had difficulty manoeuvring cars. In order to assist them the claimant video taped himself in a customer’s Mercedes car doing hand-breakers. He was never disciplined for this.
In 2004 relations turned sour between JN and the claimant’s father which resulted in the claimant’s father being ousted out of the company. At that time the claimant realised he probably would not eventually become a Director of the business but he continued working in the company as he had a mortgage to pay. He enjoyed his work and worked with some nice people.
Court proceedings were initiated and the claimant was a witness for the defence in a Court case. Before the Court case the claimant had a great working relationship with TN, another family member of the respondent company.
On 31st August 2004 the claimant received a telephone call from JN surrounding allegations about the claimant’s father. After that the claimant was demoted in his employment. His health and safety role was removed without an explanation and the company stopped paying his telephone bill and his car insurance. The claimant was accused of viewing pornography on a computer. While he primarily used this computer other employees equally had access to it. He was never disciplined for this offence.
In February 2005 the claimant was told to come to Head Office and dismantle his father’s desk and dump it. He felt humiliated. He was subjected to a tirade of bullying and harassment by JN and his family members. He was repeatedly being told to stay at home and to go home. He felt there was a campaign to get rid of him.
His five day working week was reduced to a three day working week and further reduced to a two day working week. Casual workers were being offered more work that he was.
Company B hired staff from the respondent company during busy periods. The claimant worked long hours with this company. His weakness lay in the company’s radio controls but the claimant knew that this was something he needed to brush up on. Breaks were at the discretion of the foreman. He was never disciplined while working for company B.
He started eating his lunch in his car as he was afraid of his colleagues. He enjoyed his work and did not want to leave his employment.
On 21st November 2012 the claimant was rostered to work a 5 pm shift. At 4.40 pm, he telephoned N about his pay cheque. N told him he would need to collect it himself. He called into the office and was told JN would give him his pay cheque. When he went into JN’s office JN said ‘you are a f…… liar’. JN then used some unparliamentary language about his mother and his brothers. While the claimant found JN to be a very intimidating man, the claimant said nothing and just bit his lip. The claimant then said he needed to go back to work.
The claimant suffered an injury at work on 9th December 2012 and was certified unfit for work for several weeks. He was fit to resume work on Monday 7th January 2013. His union representative wrote to the company on a number of occasions seeking a return to work date for the claimant and the representative also attended meetings with the respondent. All efforts to obtain a return to work date proved unsuccessful.
In the thirteen years the claimant had worked in the company he had never been disciplined.
The claimant could not obtain a return to work date from the company and had no income. He felt he had no alternative but to treat himself as being dismissed from the company. He never received a reference from the company and neither did he receive a P45. He subsequently obtained a P45 from Revenue.
The claimant was initially in receipt of social welfare payments. He upskilled and secured a six month contract which commenced on 25th May 2014.
Respondent’s Case:
In around 6th December 2012 BW, a customer of the respondent company was sitting outside JN’s office. He had an appointment with him that evening. The witness saw the claimant leaving JN’s office and saying ‘you framed my father’. RR a company employee who worked close to JN’s office also witnessed the claimant making that statement as he exited JN’s office that evening.
OM is General Operations Manager of company B. On occasion when his company is quite busy he hires 10/12 employees from the respondent. The claimant had worked for company B. In 2010/2011 OM often had cause to speak to the claimant about his punctuality. He flagged these concerns with JN.
JN1 is a director of the respondent company and a daughter of JN. Both she and JN run the company. She liked the claimant and got on ok with him.
The claimant had his own office and also had a computer. Some time in 2004 while maintenance work was being out on the claimant’s computer JN1 witnessed pornographic images on the pc. She felt quite embarrassed and sick.
As there were ongoing court proceedings the witness was warned to leave well enough alone. She believed it warranted disciplinary action but on advice from the Gardaí she did not take action at the time.
In around 2009 it came to her attention that a video had been located. On viewing the video footage she witnessed the claimant doing hand breakers in a customer’s Mercedes car worth €130,000.00. She deemed this to be gross misconduct but again on advice from the Gardaí she did nothing at the time. She felt sorry for the claimant.
The company has a Health and Safety Officer. The claimant often engaged with this officer. He did not hold the position of Health and Safety Officer. The claimant had a company mobile and the company paid the bills. The claimant refused to hand over his phone bills and the company requested he return the phone. While the claimant’s car insurance had been paid by the company JN said it should not have been paid by the company.
In early 2013 JNI was on maternity leave and JN was hospitalised. While the claimant’s trade union representative had written to the company several times JN1 did want to engage with the representatives on her own.
However, a meeting took place with the Union representatives on 14th February 2013 regarding the claimant’s return to work. Both JN1 and JN attended this meeting. JN was awaiting transcripts of the trial before the claimant could return to work.
On receipt of a letter from the claimant’s solicitor on 23rd April 2013 JNI sent the claimant his P45.
JN is owner and operations director of the respondent company. He formed the company with JC in the 1980s. JC who is father of the claimant employed the claimant in 2001.
JN’s role in the company entailed dealing with customers, unions and securing business for the company. In the early years he had no dealings with the claimant.
JN was a very powerful man and engaged in voluntary work. He never spoke badly about the claimant’s mother or her children. The witness denied treating the claimant badly during his tenure.
On 21st November 2012 he attended a court hearing and was ill for a week after that.
On 6th December 2012 he asked that the claimant call to his office to collect his wages. When the claimant arrived into his office the witness asked him ‘why did you lie about me (JN) in the criminal trials’. The claimant replied ‘you framed my father’. JC was in shock. In the following few days JN was admitted to hospital as he was very ill. A customer BW had been sitting outside his office and enquired from JN what that was all about. BW had been a good customer of the respondent company.
Since that incident JN had lost interest in the claimant. He believed the claimant had tried to blacken his name.
JN was aware the claimant had suffered an injury at work on 9th December 2012. In or around mid January 2013 the claimant’s union representative telephoned him and an arrangement was made to meet with the union representative. Because of JN’s illness the meeting was not scheduled until 14th February 2013. The union representatives wanted a return to work date for the claimant as he was fit to return to work since 7th January 2013. JN wanted a copy of the transcripts of the court hearings before the claimant could return to work. He was informed that the transcripts could be only accessed through a solicitor.
JN did not dismiss the claimant. The claimant’s solicitor wrote to the company on 23rd April 2013 seeking the claimant’s P45. This was subsequently furnished to the company.
Determination:
Having considered all of the evidence the Tribunal finds that the claimant was unfairly dismissed.
The claimant’s father and JN set up the respondent company in the late 1980s. Following a dispute between the families the claimant’s father sold his share to the respondent in the mid 2000s. The claimant remained working there as an employee notwithstanding the fact that there was clear animus between the parties. A number of incidents occurred over the claimant’s employment but no action was taken against the claimant regarding these.
However, following a period of absences on sick leave the claimant indicated by medical certificate his availability to return to work. However, the respondent required the claimant to give an explanation over a comment he made (which he denied making). The claimant’s return to work was contingent on his giving this explanation. The Tribunal feels this was not relevant to his employment and it related to a personal issue unconnected to his employment. However, the respondent refused to engage on this issue and despite numerous letters from the claimant’s union the respondent did not proffer a date for the claimant’s return to work. The claimant thereafter sought his P45 after four months without a valid response from his employer.
The Tribunal awards the claimant €50,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)