EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
David Mulvey UD906/2013 - Claimant
against
Christopher O'Rourke T/A Crime Control
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. B. Kealy
Ms. E. Brezina
heard this claim at Dublin on 26th May 2014
and 5th September 2014
Representation:
Claimant(s) : Mr. Michael O'Brien, C/O Office of Joe Higgins TD, Dail Eireann,
Kildare Street, Dublin 2
Respondent(s) : In Person
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant commenced a second period of employment with the respondent in February 2009. In June 2012 he received a pay rise and was promoted to a position of management with additional responsibilities. His manager DMcC was described as a friend and the Tribunal heard that the claimant was godfather to one of DMcC’s children.
The employment relationship was relatively trouble free up to September 2012. Other employees approached the claimant in August 2012 regarding issues with the payments of out of pocket expenses. He met with CO’R the owner on the 9 September 2012 to discuss the issues. The owner agreed the matter would be investigated. The following week the respondent requested that he email the details of the complaints. The respondent later acknowledged a problem with the payments. The claimant was aware that the respondent confronted his manager DMcC about the payment issues. DMcC made the claimant’s life a misery with constant personal abuse directed at him. The respondent failed to engage and failed to address the actions of DMcC. The respondent failed to reply to his email of the 25 September 2012 which was opened to the Tribunal. The claimant offered to resign his management role in order to resolve the situation. The situation was allowed continue leading to illness and a visit to his GP who prescribed him medication.
In October 2012 the respondent took issue with him removing a motivational poster however the claimant had taken the action due to the inappropriate content. In November 2012 following a sick day the respondent contacted him advising him that he was not happy with the sick notice given and suggested that he was aware that he was out socialising over the weekend. In February 2013 he indicated that he wished to make a complaint regarding pay issues.
The claimant believed that because he had raised the payment issues he was targeted by DMcC and he was unable to defend himself. During a meeting with DMcC in March 2013 he was asked if he wished to resign. He had done nothing wrong and could not understand what prompted the question. The claimant denied that the relationship between himself and DMcC broke down in May 2012 when an issue arose between them concerning another business run by the claimant. He denied attempting to undermine the manager and tried to limit time spent working with the manager. The claimant accepted that he had not made any formal written complaint or invoked the grievance procedure about the manager’s behaviour. He had never intended leaving his employment however in circumstances where he was pushed out the claimant’s employment ended in May 2013.
Respondent’s Case:
On the second day of the hearing two former colleagues of the claimant gave evidence. They both stated that they had known the claimant well. The claimant and his Manager (DMcC) had a close relationship but this changed in August 2012. When asked they stated that they did not observe any bullying by DMcC towards the claimant but there had been negative behaviour by the claimant towards DMcC. One colleague said he had been surprised the claimant had resigned; the other said he was not.
The owner of the business gave evidence. In early September 2012 the claimant met with the witness to discuss issues regarding payments to other staff which had not been made by DMC. He discussed the matter with DMcC at a meeting some 11 days later. The claimant later told the witness that DMcC was bullying him regarding the issues he had raised in September.
He spoke to DMcC and told him there was to be no bullying or harassment of staff in any way or there would be disciplinary action. He then spoke to the claimant and asked him to report any further issues with DMcC. The witness told the Tribunal that he set up a system where weekly meetings were set up between DMcC and the claimant and he attended. He also made numerous extra visits to the sites were the claimant and DMcC were working.
In December 2012 he, the witness, set up a “company going forward” document and asked the claimant to make an input into the document.
The witness told the Tribunal that he had given a “lot of latitude” to the claimant concerning a fuel issue and his tardiness to arrive to work. He was not disciplined for a fuel issue and was given a written warning for his late attendances to work after numerous occasions.
The witness told the Tribunal that he had dealt with any issues the claimant had raised with him during his employment.
Determination:
The Tribunal having considered the evidence in this case note that the procedure as outlined in the company handbook and given to the employees where not used by the claimant. In addition the situation in which the claimant found himself in appeared to be a more personal dispute between himself and his Manager. The respondent sought to ameliorate the situation by attending meetings between the parties.
The Tribunal also note that a witness summons was issued in relation to this and that the party summonsed failed to attend. The Tribunal will take the usual action in relation to this as required by the legalisation.
The claimant failed to establish the required onus of proof in respect of his claim for constructive dismissal and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)