EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD638/2014
MN298/2014
CLAIMS OF:
Edward Kelly -Claimant
against
Kelco Services 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: Ms P. Mc Grath B.L.
Members: Mr. L. Tobin
Mr. C. Ryan
heard this claim at Dublin on 1st July 2015
Representation:
Claimant: Mr. Eugene Smartt, Solicitor, Newlands Retail Centre, Newlands Cross, Clondalkin, Dublin 22
Respondent: Colm O'Cochlain & Company, Solicitors, First Active House, Old Blessington Road, Tallaght Village, Dublin 24
Background:
The Claimant was employed by the Respondent as a plumber from January 2000 to January 2014. The Respondent had a contract with a medical institution and the Claimant worked there for the Respondent three days per week. The Tribunal heard evidence from the owner of the Respondent and from the Claimant.
The Respondent explained that there was a complaint from a female because of an incident that occurred on or about 11th November 2013. The institution wrote to him to say that the Claimant was not to return to the premises because of the complaint. The Claimant who was a male plumber working for the Respondent in the institution. The Claimant had been tasked with repairing a water tap in a female washroom facility. The Claimant explained that he had called out through the door that he was going to access the female washroom and that he did hear someone call back but that he thought that because of the acoustics in that corridor or stairwell that the call did not emanate from the washroom. So he entered the washroom. He was about to commence repairing the tap when the complainant exited the cubicle.
Regarding the event the owner of the Respondent gave evidence to the Tribunal and the Claimant gave evidence to the Tribunal. The complainant in her letter of complaint which was opened to the Tribunal expressed inter-alia, “horror” and “embarrassment”.
Determination:
The Tribunal has carefully considered the facts adduced-
There was a serious error of judgement on the part of the Claimant. He should know that this behaviour was inappropriate and ill-advised. He should not have behaved in the manner that he did. Once it became apparent that there was someone using the washroom facility the onus was on him to extricate himself from the situation; all his training and his experience as well as a self-evident sense of decorum would have pointed to this.
Given that the event caused a co-worker to feel belittled and vulnerable the fact that the institution where this event occurred opted not to let the employee return to the workplace left the employer in a difficult position.
The employer went about conducting an investigation and disciplinary process. The Tribunal requires that a sincere attempt was made at this, albeit this was a small business. It has to be noted however that the complainant was never talked to or interviewed and the statement provided was written well after the event in question and the Tribunal acknowledges the complainant’s last comments went well beyond the complaint she was making and were beyond her remit.
Whilst there was a conflict in the evidence of exactly what had happened and was said by the Claimant and the complainer, the Tribunal does accept that the Claimant’s actions lacked sensitivity and once a complaint was made his position in the institution became precarious as he was only ever on a contract-for service basis and therefore his services were dispensable.
The Tribunal finds that the employer could not reasonably have concluded, on the basis on the evidence shown to this Tribunal, that the behaviour constituted gross misconduct and to this extent the decision to dismiss on this basis was Unfair Dismissals Acts, 1977 to 2007.
The Tribunal finds that it is possible that a less draconian disciplinary measure could have been imposed but must further accept that the employer may not have had the alternative employment opportunities for the Claimant which would have allowed him retain his salary and hours per week.
The Tribunal finds therefore that the Claimant’s position had he been retained would have been on a remuneration far below that which he had enjoyed before the incident. The Claimant himself would have contributed greatly to this scenario.
In making an award for Unfair Dismissals the Tribunal also takes into account of the fact that a plumber with 43 years’ experience was not in a position to find work on a casual or other basis and awards €6,000.00, under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms Of Employment Acts, 1973 To 2005, succeeds and the Tribunal awards the Claimant the sum of €3,702, this being six weeks gross pay in lieu of notice.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)