UD80/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

Four Seasons Hotel Limited   -claimant                                                                 UD80/2012

against the recommendation of the Rights Commissioner in the case of:

Patrick O'Brien

            -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Ms N. O'Carroll-Kelly B.L.

Members:       Mr M. Carr

                        Mr O. Nulty

heard this appeal at Monaghan on 9th May 2014

Representation:

_______________

Appellant:       Ms Catherine Day, Peninsula Business Services (Ireland)

                        Limited, Unit 3, Ground Floor, Block S, East Point Business

                        Park, Dublin 3

Respondent:    Ms Geraldine Duffy, Monaghan Citizens Information Centre,

                        23 North Road, Monaghan, Co Monaghan

This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Recommendation ref: r-111844-ud-11/SR. Hereinafter the claimant will be known as the employer and the respondent the employee. As dismissal is in dispute in this case it is up to the employee to give evidence first.

Respondent (employee’s) Case

The employer is a family run hotel in which the employee worked as a porter from 2005 until his dismissal on the 17^th of June 2011. He was originally employed as a kitchen porter and became a general porter in his last year of service. On the 17^th of June 2011 the restaurant manager (PJ) approached the employee and asked him if he should put the employee’s name on the list to attend a meeting. The employee said he would revert to him. The employee attended this meeting.   The employee was then asked by the managing director (FmcK) why he was at the meeting as he should not be attending it, he was asked ‘what do you know about meet and greet’ and was asked to leave. FmcK said ‘you think you own the place’, the employee slammed the door and went into the kitchen to inform his colleague that he had been sacked. The employee then left the premises and went directly to the Citizens Information Service.

The accounts administrator (AH) contacted the employee by phone 10 minutes later and asked the employee to return saying that ‘it would be alright.’ The employee informed her that he had been sacked and asked if FmcK was there with her; she said that he was not, so the employee informed her that he could not go back. The employee had no previous disciplinary issues; he had had a few arguments in the past but they ‘had all been sorted out’.

Cross-Examination

The employee disputes that it was an incident/argument with the head chef that led him to becoming a general porter. He was treated fairly after all of the previous incidents/arguments.

The employee stayed for the full three hours at the meeting on the 17^th of June without informing anyone he was attending it and he was the only porter on duty that day; it was a staff meeting even though there were no other porters present. The employee was never told not to go to the meeting, until the restaurant manager (PJ) asked him if he was attending the meeting it had not occurred to him to attend. The employee has only recalled the conversation with the restaurant manager in the weeks leading up to this hearing and post the Rights Commissioner hearing. The restaurant manager had no authority over the employee and did not direct him to attend the meeting.

During the final heated argument with the managing director (FmcK) on Friday the 17^th of June, the employee disputes saying ‘well sack me then’, disputes waving his arms around and being close to hitting him, he accepts that he slammed the locker door but he did not pull it off the wall. The lockers are screwed to batons on the wall so it would not be possible to pull them off the wall. The employee disputes being angry that day and maintains that it was FmcK that was angry.   FmcK told the employee that he was sacked. The employee requested his wife to phone the respondent the following Monday to get his P45. The employee would have been happy to receive a phone call from FmcK over the weekend following the argument.

The employee had ‘a row’ with FmcK’s wife six months previously. As a result the employee felt that he was given inappropriate duties such as cleaning leaves from the car park; he did not raise a grievance as he was unaware of the grievance procedure.

A colleague of the employee (MK) gave evidence that on the 17^th of June 2011 the employee came into the kitchen and told her that ‘I’m away.’ She asked him what he meant, to which he replied that he had been sacked. FmcK was standing at the top of the kitchen and the employee walked by him and left. That evening MK observed the lockers to be intact and on the wall except that the contents of one were on the ground.

Claimant (employer’s) Case

The restaurant manager (PJ) gave evidence. He did not ask the employee to put his name down for the meeting on the 17^th of June 2011. PJ was not organising the meeting, he had been instructed to attend by the organiser. PJ was obliged to attend as it was a sales meeting; the meeting was only attended by the department managers.

The leisure club manager (MmcD) gave evidence. He was in attendance at the sales and marketing meeting of the 17^th of June 2011. As he left the meeting he walked through the kitchen and witnessed the altercation between FmcK and the employee. MmcD witnessed the employee being very annoyed and saying ‘sack me, sack me’ to FmcK. FmcK then asked the employee to leave; he did not mention ‘sacked’ at all.  The employee then went to his locker for his jacket and pulled the locker off the wall. The employee had his fists clenched; both parties were very aggressive. Other than to say ‘clam down’ the witness did not intervene in the argument.

The accounts administrator (AH) gave evidence. AH was instructed to ring the employee after consulting with FmcK’s wife who is co-owner of the company. She was specifically asked to get the employee to return to work but she did not tell the employee where the instruction had come from. AH asked the employee what had happened, she informed him that his job was here for him and to come back, that all will be forgotten.   AH and the employee had a good relationship so she though he would listen to her but he was extremely agitated. She cannot recall if he mentioned being at the Citizens Information or that he had been sacked when she called. This was not the first occasion that the employee had left work; he came back to work on the previous occasion. AH is senior management after being with the employer since 1986; the employee would know she had the authority to ask him back to work.

The payroll administrator (MoS) gave evidence that she received the request on Monday for the employee’s P45. She informed the employee’s wife that it could be posted or collected on Wednesday.

The Managing Director (FmcK) gave evidence. There were always issues with the employee but as FmcK liked him, he moved the employee when complaints were made against him. They shared interests outside of work so also had a personal relationship. The employee had literacy difficulties which led him to get frustrated and have a short temper. He was a highly valued employee as he had varied skills and was very versatile.

On the 17^th of June 2011 there was a sales and marketing meeting for senior management. The employee should not and would never normally be in attendance at such a meeting. In order not to embarrass the employee he was not asked to leave the meeting. After the meeting FmcK asked the employee who had instructed him to attend the meeting, the employee replied that ‘nobody told me not too’. FmcK told him not to be a ‘smart alec’, to which the employee said ‘why don’t you f***ing sack me’, FmcK stated that he was ‘too long in the tooth for this’ and the employee again said ‘the wages are a pittance the conditions are bad so sack me’. FmcK instructed the employee to go home as he was being very aggressive. The employee then proceeded down the corridor saying ‘I’m sacked, I’m sacked’ so FmcK followed him into the kitchen and asked him to leave. He was in such a temper and in the vicinity of knives etc in the kitchen FmcK had to make sure the employee went home.

FmcK did not contact the employee over the weekend as his behaviour had been too aggressive. FmcK decided to let him cool down and come back himself as he had left and returned on a previous occasion. On Monday FmcK was informed that the employee had requested his P45, he took this act as his resignation but he still believed the employee would return to work. There was no further contact from the employee.

FmcK gave his permission for AH to contact the employee and ask him to return to work. FmcK could not call or visit the employee as it would have inflamed the situation. If he had returned to work there would have to have been some repercussions for his behaviour. Cleaning up leaves in the car park is a normal duty not only for the employee but for FmcK.

Determination

The appeal of the Rights Commissioner Recommendation ref: r-111844-ud-11/SR under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal upsets the Rights Commissioner Recommendation finding that the employee was not unfairly dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)