EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF:
CASE NO.
Sorin Gabriel Onose
- claimant UD1029/2013
RP707/2013 MN505/2013
WT180/2013
Against
Boynton Properties Limited
- respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr J. Horan
Mr P. Trehy
heard this claim at Dublin on 23rd September 2014 and 11th November 2014
Representation:
Claimant(s) : Mr Andrew Murnaghan B.L. instructed by Mr. Roman Shortall,
Nahoi & Co. Law Firm, 334 North Circular Road, Phibsboro, Dublin 7
Respondent(s) : Mr Colm Hickey, Arthur McLean, Solicitors, 31 Parliament Street, Dublin 2
The determination of the Tribunal was as follows:-
Preliminary Issue
The respondent’s representative submitted that the claimant had lodged his claim with the Tribunal outside the statutory six months. The claim form was date stamped the 18 July 2013 and the date of dismissal was the 18 January 2013. The respondent further submitted that no exceptional circumstances existed which could allow an extension of time in the case as the claimant was legally represented during the relevant period. The claimant’s representative submitted that the claim was faxed to the Work Place Relations offices in Carlow on the 17 July 2013 thereby filed within the statutory time limit.
The Tribunal noted that the claim was received by the Work Place Relations office by fax on the 17 July 2013. The Tribunal further noted that the claimant’s minimum notice period of one week brought the date of dismissal to the 25 July 2013 and was therefore lodged within the statutory time period allowing the Tribunal jurisdiction to hear the claim.
The claimant’s representative withdrew the claims under the Redundancy Payments Acts, 1967 to 2007 and the Organisation of Working Time Act, 1997.
Summary of Evidence
Dismissal was in dispute in this case. The claimant was employed from the 31 January 2011. The claimant told the Tribunal that while working at the premises of a client of the respondent on the 18 January 2013 the contracts manager (LD) informed him of night work for the following week involving the painting of windows and using a cherry picker to carry out the work. He explained that he was not experienced enough to operate a cherry picker at night and was concerned as it was a job which required two people. A spotter was required to remain at ground level while using a cherry picker to provide guidance while in operation. He refused to do the job on health and safety grounds. LD telephoned BO’B a director of the respondent company. He spoke with BO’B on the telephone and he was asked why he would not do the job. The claimant explained why he was refusing and BO’B said “either you do the job or fuck off and go home”. The claimant understood that to mean that he was sacked from his job. He went to collect his personal items and was followed by LD. BO’B was on the telephone on speaker. On the 22 January the claimant requested his P45 which he received the following day. The claimant denied refusing to do the job due to illness and only refused on health and safety grounds. He accepted that he had received training but the issue was lack of experience operating the cherry picker at night. He also denied walking off the job saying he was sick and going home.
BO’B director of the respondent company gave evidence of employing the claimant for a second time in 2011. Previously the claimant was employed by the respondent and he left to set up his own business. On the failure of the new business he re-hired the claimant. The claimant’s wife also works for the respondent in a separate business. The respondent was sub contracted to carry out paint work in a city centre hotel. The project had strict deadlines build in to the contract. The job was to be completed in seven days. The claimant told him he was sick and unable to do the job however he did not believe the claimant was unwell but rather that he just did not want to do the job. The witness denied telling the claimant to “fuck off and go home”. He agreed he used the word “fuck” and that the conversation was heated. He was under enormous pressure to complete the project within the timeline. He was annoyed but begged the claimant to continue working. He estimated the conversation lasted five minutes and only had one telephone conversation with the claimant on the issue. He dictated an email which was sent to the claimant however the claimant never received the email as it was sent to an incorrect email address. The email was sent in an attempt to persuade the claimant to come back. BO’B did not accept that he did not have enough staff employed to carry out such a task. The job he needed the claimant to carry out was to take place the following Monday and Tuesday and by then he would have had a spotter in place and health and safety issues would be dealt with appropriately.
The contracts manager LD was the claimant’s manager. She met with the claimant on the morning of the 18 January and advised him of the job painting the windows outside. In order to complete the job the contractor had obtained a permit from Dublin City Council to carry out the work between 9pm and 3am as it involved obstructing a city centre bus lane. The claimant said it was very cold and that he had a cold and could not work outside. She requested a medical certificate as he had said he was unwell. She attempted to coax him to do the work and said he was the only ticketed or licensed employee to operate the cherry picker and carry out the work. She denied any conversation around the claimant having health and safety concerns took place at the time. The method statement was not complete for the job as it was to take place the following week. No decision was made on who would provide the spotter for the job i.e. the main contractor or the respondent. She telephoned BO’B and put the claimant on the telephone. When the claimant got off the telephone he said “fuck this I am out of here” and left the site.
Determination
As the dismissal was in dispute in this case the Tribunal had first to consider if a dismissal took place. There was a complete conflict of evidence in the case with credibility gaps on both sides. In all the circumstances the Tribunal find that a dismissal did take place.
Having decided there was a dismissal the Tribunal then considered if the dismissal was fair or unfair. The respondent’s evidence was that he had not explained to the claimant that a second man/spotter would be assigned to the job with him on the Monday and Tuesday night.
The claimant had no previous disciplinary matters over the course of his employment with the respondent however there was a high degree of contribution by him which led to his dismissal.
The Tribunal determines that the claimant was unfairly dismissed. In awarding compensation in the amount of €4,000.00 under the Unfair Dismissals Acts, 1977 to 2007 the Tribunal took into account the claimant’s failure to mitigate his loss.
The Tribunal further awards the claimant the sum of €454.00 in lieu of one weeks’ minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)