EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Mantas Noreika
- claimant
UD245/2013
against
The Printed Image Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr F. Cunneen
Mr T. Brady
heard this claim at Dublin on 1st May 2014 and 29th August 2014
Representation:
Claimant: Mr Damien Keogh, Independent Workers Union, Suite 6,
Fulcrum Offices, 86 Amiens Street, Dublin 1
Respondent: Mr John Barry, Management Support Services, The Courtyard,
Hill Street, Dublin 1
Respondent’ Case
The respondent is a print and design company employing 95 employees. The claimant worked as a general operative in a number of different areas of the respondent’s premises from 29 July 2011. He reported to his immediate supervisor in his area of work. The Tribunal heard evidence from the respondent’s operations manager that while the claimant’s initial work performance went very well issues began to arise in 2012 regarding his work performance and his attitude to co-workers, in particular towards female co-workers. The company initially attempted to deal with these issues on an informal basis through the claimant’s line manager and the claimant was accommodated in a number of different departments within the respondent’s workplace.
In June 2012 a formal complaint was made by a female work colleague in relation to the claimant’s behaviour in the canteen. This behaviour was witnessed by a number of employees and the claimant was given an opportunity to respond to the complaint. Following an investigation by the company the claimant was issued with a written warning in relation to his aggressive behaviour, foul language and rudeness to a co-worker. He was informed that there should be an immediate improvement in his attitude to work and colleagues and that any further infractions could lead to dismissal.
The Tribunal heard evidence that the claimant’s negative attitude continued and in September 2012 a further incident occurred when he refused to carry out a task when requested to do so by his supervisor. This supervisor who had 27 years experience with the company lodged a formal complaint and again the claimant was given an opportunity to respond to the complaint. An investigation was carried out and the claimant was subsequently issued with a final written warning for his actions in being rude and unhelpful to his supervisor when asked to carry out a task which was part of his duties. The Tribunal was told that the claimant did not seem to care when he was reprimanded. The claimant was subsequently involved in an altercation with a delivery driver in October 2012 and the company supported the claimant in relation to that incident and accepted that the driver was at fault for his part in the incident.
The claimant was absent on sick leave from mid November 2012 until mid December 2012. The Tribunal heard further evidence that on 8 January 2013 the claimant made a verbal attack on a co-worker who had attempted to assist him in his duties. On 10 January 2013 he refused to carry out a task when requested to do so by his supervisor. The witness called the claimant to a meeting and the production director was also present. The claimant was asked why he had refused to carry out the task of changing wheelie bins and he replied that it was too cold. He did not seem to care and had a very nonchalant attitude which was dismissive and negative. As he had already received a verbal warning and two written warnings he was dismissed with immediate effect and instructed to leave the premises immediately. He was paid his notice entitlements. The Tribunal was told that he did not leave the premises as instructed but went to the canteen and behaved in an intimidating manner towards the operations manager. He demanded to be issued with his paperwork and he was told that his paperwork would be posted to him.
The Tribunal also heard evidence that the claimant had approached the operations manager on two occasions during the tenure of his employment seeking to be let go from his employment as he wanted to claim Social Welfare benefits. The claimant was advised that the company would not consider this request. The Tribunal heard evidence that the claimant on occasions drove a forklift in his duties but he was not employed as a forklift driver. The company employed a regular driver and the claimant did not possess a license to drive a forklift and he was not requested to do so by the company. He was never given a warning for refusing to carry out overtime duties. The company accepted that the claimant was not offered the opportunity of having a colleague present with him at the meetings where he had received written warnings.
Claimant’s Case
The claimant gave evidence that he is married with two children. He received a reference from the production director when seeking a mortgage to purchase his new home in October/November 2011. He told the Tribunal that he received warnings from the company for no reasons. He was only giving his opinion to work colleagues/supervisors and received warnings for that. He denied that he was disrespectful towards his supervisor. He stated that his difficulties started when he refused to work overtime as the company only paid a flat rate for overtime. He had no license to drive a forklift. When he refused to drive the forklift he was put under pressure. When he sought to obtain a license to drive the forklift the company would not facilitate him. On 10 January 2013, the day of his dismissal he was breaking pallets when he was asked to change the wheelie bins. He stated that he would do so later which he did. He was not requested to change the bins immediately.
On the day of his dismissal he was writing an account of what had happened and he was told that he could not do so on company time. He told the Tribunal that his written account of events was taken from him and he was told it would be put on his file. He has not seen it since. He gave evidence that he suffered from a medical condition at the time of his dismissal which affected his liver. This was a big problem for him at the time and affected his mood. He has since recovered.
On the second day of hearing the claimant told the Tribunal that he had received one warning which he signed and another warning which he did not sign as he felt he did nothing wrong with regard to the second warning and had not shouted at the supervisor. The claimant did not receive notification of the meetings in relation to these warnings and was not given an opportunity to hear witnesses to the alleged incidents. It was put to the claimant that he had previously sought to be dismissed and the claimant denied this.
The claimant gave evidence in relation to his efforts to find alternative employment after his dismissal together with details of employment obtained since then and his current employment.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal is not satisfied that the respondent followed fair procedures in deciding to dismiss the claimant. There was no notice given to the claimant of disciplinary hearings and he was not given the opportunity to address his accusers. He was not afforded the opportunity to be represented at these meetings and was not informed of his right to appeal the decision to dismiss him. Therefore the Tribunal finds that the claimant was unfairly dismissed by the respondent.
However the Tribunal also finds that the claimant contributed to a large degree to his dismissal and that he did not make any effort to mitigate his loss for the first six months after being dismissed. Accordingly in all the circumstances the Tribunal awards the claimant €2,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)