EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1322/2013
APPEAL(S) OF:
John Dunne
(appellant)
against the recommendation of the Rights Commissioner in the case of:
Kildare Times 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. B. Kealy
Ms M. Maher
heard this appeal at Dublin on 14th November 2014 and 19th March 2015
Representation:
_______________
Appellant(s) : Ms. Sarah Lee B.L instructed by Mr Sean Ormonde, Sean Ormonde &
Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent(s) : Mary Paula Guinness B.L., instructed by Benville & Robinson Solicitors,
Seapoint Road, Bray, Co. Wicklow
The determination of the Tribunal was as follows:
This case came before the Tribunal by way of an employee appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference r-127367-ud-12/JT.
Summary of evidence
The Tribunal noted that there was no appearance by or on behalf of the respondent at the initial hearing on 14th November 2014. The appellant was instructed by the Tribunal to obtain a correcting order from the Rights Commissioner to show the correct name of the respondent. This case was heard in full with both parties present on 19th March 2015.
Giving evidence, SF, Director, told the Tribunal that the appellant, having worked with the respondent as a Sales Rep from 14th February 2011, was dismissed on 4th October, 2012 for general poor performance. The appellant worked in the Naas office and this office was subsequently located to Bray.
On 10th January 2012 SF spoke to the appellant about his poor performance regarding sales figures and overall attitude in that he would not return telephone calls re daily sales figures nor return phone calls from the office. SF indicated that each time he cautioned the appellant his sales figures would improve but subsequently deteriorate again. The appellant was cautioned on a number of occasions. On 4th October 2012 SF instructed the appellant to come to the office and the appellant refused stating that he did not have enough petrol in his car. The appellant was issued with €100 expenses for petrol on a weekly basis. SF told the appellant that he was left with no option but to dismiss him. SF accepted that he did not follow proper procedures.
In cross-examination, SF explained that employees with contracts received company policies but that the appellant did not have a contract of employment. He confirmed a conversation took place with the appellant on 16th August 2011 refering to notice of termination. Termination did not take place at that time as the appellant’s sales figures improved. SF did not accept that the appellant had to work the worst area in Kildare and SF denied that he needed to cut back in staffing numbers at the time. The witness confirmed that no formal investigation took place and there was no opportunity for the appellant to appeal his dismissal.
In reply to the Tribunal, SF indicated that the appellant was not provided with training as the appellant had stated that he was an experienced sales rep.
Giving evidence, MD, who was part of the sales team told the Tribunal that sales reps were expected to ring in every day with sales figures. Every Friday adverts had to be checked and closed off – the cut-off point was 7pm. The appellant was not present every Friday. If he was there, he would leave early, about 3pm and when MD would ring him to check an issue, she would not usually be able to reach him and would have to ring the client with the query. MD previously worked the area the appellant worked and reached her targets.
Giving evidence, MMcH for the respondent stated that he collated the sales figures and would e-mail them to SF at about 17.20 each day. He would ring the appellant at about 16.45 but would not usually be able to contact him. He would leave a voice message for the appellant.
Giving evidence the appellant stated that targets were written on a board and staff were told to “do your best”. The appellant was not made aware of any disciplinary procedures and only remembered being asked to one meeting with the respondent which was on 11th August 2011.
On 4th October, 2014 the appellant received a telephone call from the respondent and was told “get to Bray now”. The appellant told the respondent he could not go to Bray as he did not have enough petrol in his car. He was working in Newbridge at the time. The respondent told the appellant “your gone, your fired”. The appellant subsequently received an e-mail to say he was dismissed. The appellant was not given a right to appeal.
Under cross-examination, the appellant denied that the respondent had mentioned difficulties contacting him or that he had an attitude.
The appellant gave evidence of his efforts to mitigate his loss.
Determination
The respondent accepts and the Tribunal find that it didn’t follow any procedures in relation to the appellant’s dismissal and therefore the Tribunal must conclude the claimant was technically unfairly dimissed.
However, the claimant contributed wholly to his dismissal and completely failed to mitigate his loss.
In all the circumstances, the Tribunal make a nil award and therefore overturns the Rights Commissioners decision.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)