EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Paul Boland (claimant) UD171/2013 MN102/2013
Against
Protec Autospares Limited (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. D. Mac Carthy S C
Members: Mr. B. Kealy
Mr P. Trehy
heard this claim at Dublin on 12th March 2014 and 24th July 2014
Representation:
Claimant(s) : Business & Commercial Solicitors, Leeson Chambers, 32 Lr
Leeson St, Dublin 2
Respondent(s) : Colm Murphy & Co, Solicitors, Unit 13a, Main Street, Ongar,
Dublin 15
The determination of the Tribunal was as follows:
Preliminary issue
As the fact of dismissal was in dispute both the respondent and the claimant gave evidence
in relation to the day of the meeting whereby the claimant alleges that he was dismissed. After hearing evidence from both sides, the Tribunal determined that by majority, on balance, that the claimant was dismissed and accordingly it will be up to the respondent to prove the dismissal was fair.
In the circumstances where the Tribunal found a dismissal did take place it was agreed by the parties at the resumed hearing on the 24 July 2014 that the Tribunal hear evidence of the claimant’s contribution to his dismissal and evidence of loss.
The claimant worked in the position of parts manager with the respondent company and had fifteen years of experience in the motor trade and parts business. Since his dismissal he applied for many jobs in the motor trade business but was unsuccessful. His employment with the respondent had ended on the 7 January 2013. At a Rights Commissioner’s hearing in May 2014 the respondent approached him and offered him his job back. At that time he had just secured alternative employment however when the respondent had offered him his job back he turned down the alternative employment. Discussions took place with the respondent on the 23 and the 27 May 2013 and then suddenly communication from the responded ended causing him some distress.
The respondent’s main witness (FO’R) gave evidence to the Tribunal. He suggested mediation to the claimant at a separate Rights Commissioner’s hearing however the claimant rejected the offer. The witness denied that he offered the claimant his job back.
The respondent’s company administrator with responsibility for safety in the workplace gave evidence of the claimant’s lack of respect and failure to engage with him on safety matters. Issues which arose included the claimant continuing to smoke in areas not designated and adding parts to his account when it was already overdue.
Determination
Having heard the evidence in this case the Tribunal determine the claimant was dismissed but that the claimant’s unhelpful attitude during the final meeting in itself contributed to the dismissal
At the resumed hearing on the 24 July 2014 there was some debate as to whether or not the fairness of the dismissal was in dispute. The Unfair Dismissals Act places an onus on the employer to justify the dismissal, but since the employer had consistently denied a dismissal took place it seemed illogical to try to justify a dismissal that was denied. The dismissal is therefore deemed to be unfair.
The Tribunal heard evidence as to the contribution of the claimant towards the dismissal in the broader sense as well as his contribution during the final meeting. Taking all the evidence into consideration the Tribunal finds the claimant contributed 50% to the dismissal.
Section 7 (2)(b) as amended provides that in determining compensation regard shall be had to
“the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee”.
The Tribunal taking into account the claimant’s subsequent illness assessed loss at €28,000.00 and by deducting 50% award compensation to the claimant in the amount of €14,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal makes no award under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)