EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Michael Wilkinson, -claimant UD1770/2012
MN863/2012
WT451/2012
Against
Eddie Garry T/A Tyres Direct,
Eddie Garry T/A Eddie Garry Car Sales,
under
UNFAIR DISMISSALS ACTS, 1977 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 N. Russell
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Waterford on 29th July 2014
and 16th October 2014
Representation:
_______________
Claimant: In Person
Respondent: In Person
The claim under the Organisation of Working Time Act, 1997 was withdrawn.
Determination
The first issue to be determined by the Tribunal is whether the claimant was, in fact, dismissed.
It was agreed between the parties that the claimant’s employment came to an end at a brief meeting between the parties on the 5th October 2012. The respondent asserted that the claimant’s employment came to an end by mutual agreement. The claimant’s case was that his employment was terminated. Considering the totality of the evidence given, the Tribunal’s belief is that the Respondent terminated the claimant’s employment summarily on the 5th October 2012.
The Tribunal must then decide if the claimant’s dismissal was a fair one and, in doing so, must determine if the respondent has met the burden of proof.
The Respondent informed the Tribunal that he had a longstanding issue with the claimant smoking in the workplace. His evidence was that he also learned that the claimant was promoting his own personal services as a mechanic at the workplace while working for the respondent.
The smoking issue was accepted by the claimant though he denied that he was promoting his personal services in the workplace; he was, however, exploring the possibility of setting up his own business as he was dissatisfied with the changes in the terms of his employment with the respondent.
The Tribunal is of the view that the claimant was entitled to explore his options to work elsewhere provided that he did not seek to promote himself to the respondent’s customers, particularly in the respondent’s workplace. Self-promotion of that nature by an employee would constitute a fundamental breach of trust and would justify dismissal.
There was an air of credibility about the respondent’s evidence in that the Tribunal feels that the respondent had formed the view that the claimant was promoting his personal services to the respondent’s customers in the respondent’s workplace whether this was, in fact, occurring or not. Further, the Tribunal believes that this was the reason why the claimant was dismissed.
The respondent, however, failed to meet the burden of satisfying the Tribunal that he had made proper enquiry into the issue to establish whether or not the claimant was promoting his personal services in the workplace to customers of the respondent and had not given the claimant a proper opportunity to be fully heard on the issue before summarily dismissing him.
In the circumstances, the Tribunal considers the claimant to have been unfairly dismissed in the absence of a fair and transparent procedure. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €2,500 in compensation.
The claimant is awarded €480 under the Minimum Notice and terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)