EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
George Matthews
- claimant UD1088/2013
MN565/2013
Against
Charlie Shiels 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. T. Ryan
Members: Mr T. O'Grady
Mr D. Thomas
heard this claim at Dublin on 1 October 2014 and 12 November 2014
Representation:
Claimant(s) : Mr Tom O Dwyer, S.I.P.T.U., Liberty Hall, Dublin 1
Respondent(s) : Mr Fran Rooney B.L. instructed by Mr. Brendan Byrne,
B & P Byrne, Solicitors, 5 Tyrconnell Road, Inchicore, Dublin 8
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent company supplies and distributes household electrical appliances. The workplace is made up of a large warehouse and offices.
The claimant was employed by the respondent company for over sixteen years. At the time of the dismissal the claimant’s role was the returns manager. During busy periods he also worked in the role of stock picker and loading.
The Tribunal heard evidence from an employee (ER) who also worked as a stock picker in the warehouse. On the 10 April 2013 while carrying out his normal duty he noticed a box of electric carving knives amongst other empty boxes. It was unusual the knives were in that area as they are stored on a different aisle. The claimant shouted “what the fuck are you looking at” to ER. A few seconds later ER walking back noticed the box of knives was gone. The witness had also noticed a van at the loading doors which was no more than four yards away from where he had first noticed the box of knives. Although he did not see the claimant load the box of knives they were the only ones around at the time and he was of the opinion that the knives were loaded on to the van. The claimant shouted “I will knock you down you stupid bastard”. ER was nervous and walked away. He felt threatened and was concerned as to what the claimant might do to him. The following day he carried out a stock count on the knives and identified one box containing eight knives was missing. That day the claimant remarked “no proof no photographs”. A few days later ER reported the incident to the warehouse manager. ER accepted that he and the claimant had exchanged jokes and banter in the workplace but this occasion it was different. The witnesses concluded his evidence saying how he feared for his safety.
The warehouse manager (PO’B) gave evidence of ER reporting the incident to him. ER reluctantly reported the matter and was worried about reporting the matter to senior management. A stock take was undertaken approximately three weeks prior to the incident and stock numbers were recorded at that time. A further stock count confirmed that a box of knives was missing. PO’B reported this to the managing director.
The managing director (AS) met with ER to establish what had occurred. He then met with the claimant who said he did not know what he was talking about. A meeting was arranged on the 29 April 2013 and he asked them to re-enact what happened on the 10 April. Both employees co-operated fully with the re-enactment. The claimant later said he did not know what this was about. The witness knew from the demeanour of ER that this was not just normal banter. He could see how nervous and upset ER was when describing what had happened. In a letter to the claimant dated the 29 April 2013 the managing director set out the allegations of dishonesty, violent abusive and threatening behaviour, rudeness to a fellow employee, customer or suppliers and deliberate damage to or misappropriation of company property.
A disciplinary meeting was held on the 3 May 2013 and the claimant offered no explanation for his behaviour other than it was normal banter among employees. At a further meeting on the 8 May 2013 the claimant was asked what he meant by “no photographs” a comment he made to ER and he could not recall making the comment. The claimant was informed of his dismissal for gross misconduct due to his threatening and abusive behaviour. He was offered the right to appeal in his dismissal letter.
The appeal was heard by KS a director of the respondent company. At the appeal hearing the claimant offered no further evidence or explanation other than to say that he was an employee with sixteen years’ service with no previous disciplinary issues. KS interviewed those involved and upheld the dismissal. He told the Tribunal that he valued his employees and had the claimant not being dismissed ER would have left his employment.
The claimant was employed over sixteen years at the time of his dismissal. He worked in the role of returns manager with responsibility for all stock returns and the issuing of credit notes to customers. During busy periods he would pick and load stock. On the 10 April he was loading a courier van. The stock was scanned and loaded. He could not recall the knives and did not load any boxes of knives. The claimant admitted calling ER stupid which was normal banter in the workplace. He denied the allegation of any threatening and abusive behaviour towards ER. He described ER as a friend for many years saying they had always got on well and described having a good working relationship with his employer. The claimant had no recollection of making a comment “no photographs”.
Determination
The Tribunal is satisfied that proper procedures were followed by the respondent and this was acknowledged by the claimant’s representative. The claimant was aware of the serious nature of the allegations against him. The Tribunal noted the claimant was advised at all times to have a representative but choose not to do so until his appeal hearing. While the claimant states that the abusive language and words exchanged was normal workplace banter the Tribunal is satisfied that the alleged “banter” went far beyond this and ER felt justifiably threatened.
The Tribunal determines that such threatening behaviour is unacceptable and that the respondent acted reasonably in all the circumstances. The dismissal was fair and the claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 are dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)