EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1598/2013
MN783/2013
CLAIM(S) OF:
Eugene Young - claimant
Against
Towerbrook Limited T/A Castle Durrow Country House Hotel - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr P. Trehy
heard this claim at Portlaoise on 18th December 2014, 5th May 2015 and 6th May 2015
Representation:
Claimant(s) : Mr Gerard Groarke B.L. instructed by Sandra Mahon,
O'Donovan Mahon Cowen, Solicitors, William Street, Tullamore, Co. Offaly
Respondent(s) : Mr Kieran Kelly, Fanning and Kelly Solicitors,
Hatch Hall, Hatch Street, Dublin 2
Summary of Evidence
The respondent company operates a country house hotel with its principle business being weddings. The premises include a restaurant, function room, beauty salon and gardens. The claimant was employed by the respondent in 2000. Company director PS gave evidence of an incident which took place on the 4 June 2013. It was early morning approximately 9am following a wedding at the premises and the witness heard loud noise created by the claimant and another employee moving bottles and beer kegs. The claimant had previously been instructed not to engage in any work which would disturb guests before 10am. He asked the claimant to stop the work and the claimant became irate and came at him with a keg pushing him on to a flower bed. The witness described the claimant as acting in a threatening manner and he moved away from the claimant in order to defuse the situation. The witness denied losing his temper with the claimant. The claimant telephoned the witness demanding to meet him in the laundry room. PS asked NS to accompany him when meeting the claimant. The claimant continued with his aggression and pushed the witness with his chest. PC told the claimant to go home. The following day the claimant called to NS in the office demanding to see the witness. NS telephoned the witness saying she was frightened of the claimant as he was behaving very agitated. The claimant was suspended with pay by letter. Letters dated the 5th and 6th June 2013 exchanged between the parties was opened to the Tribunal. A meeting was arranged for the 10 June 2013 which the claimant failed to attend. The claimant was suspended with pay from that date. A second meeting was arranged for the 22 August 2013 which the claimant did not attend. The witness proceeded with the decision to dismiss the claimant in consultation with his wife (company director) and NS. The witness submitted that he never wanted to dismiss the claimant however when the claimant was confrontational with NS and frightened her dismissal was the only option.
The financial controller (NS) gave her account of the incident on the 4 June 2013 to the Tribunal. PS had informed her that he had a run in with the claimant that morning and asked she accompany him to meet the claimant. The claimant accused PS of hitting him. A heated exchange followed and the claimant threw the keys at PS while threatening his family. PS asked the claimant to calm down. The witness was contacted by telephone later that day by the claimant who asked if he was sacked. She was not in apposition to answer the claimant and it was arranged that he call the following day. On the 5 June 2013 the claimant came to her office. NS described the claimant as acting like a bull and beating his chest like a baboon. When PS returned to the office she told him she was afraid of the claimant.
On the 22 August 2013 the witness met with PS and another company director to discuss the incident of the 4th and 5th June 2013. NS submitted that the claimant failed to engage with the respondent and was a significant risk to employees and guests.
The claimant gave evidence of working as a general labourer on the grounds of the respondent company. On the 4 June 2013 he commenced work at 7:50am as he had lots to do following a wedding the previous day. Moving rubbish from the night before was a priority for him so as guests would not see it. He sought the help of another colleague to clear the rubbish. At 9:30am he started to load the van with kegs and bags of rubbish. He noted that the guest room close to where he was working was already vacated.
He had other work scheduled for 9:45am which involved delivering food to a café owned by the wife of PS. He had not been informed that he was not required for that job that day and proceeded accordingly. PS approached him pushing him into the chest and instructed him to stop working. Following a verbal exchange PS left. The claimant denied being told by PS to calm down. Later that morning the claimant telephoned PS asking him for an apology and arranged to meet him in the laundry room. PS with NS met him in the laundry area. The claimant submitted that PS was spitting into his face and asked him for the keys of the van. The claimant threw the keys to him. The claimant denied any physical contact with PS. Because he himself had been assaulted by PS he reported the matter to the Gardai and gave a statement of the incident. He later went to his solicitor and telephoned NS seeking an explanation to the events of the morning. NS advised him that he was not sacked. He telephoned PS later that night and a meeting was arranged for 8am the following morning. On the 5 June 2013 he returned to work at 7:50am and continued to carry out his duties until 9:50am. PS failed to turn up that morning as arranged and the claimant met NS in her office. He sought an apology and NS using abusive language asked him to leave her office. The claimant denied shouting at NS but accepted they both used colourful language. The claimant denied beating his chest and acting like a baboon. PS telephoned the claimant soon after advising him to get off the grounds and not to speak with anyone on the property. The claimant engaged a solicitor and letters were exchanged between the parties. The claimant did not attend the meetings after that date as PS was chairing the meetings and this was not fair procedure.
Determination
By letter of the 28th August 2013 the claimant’s employment was terminated for alleged aggressive behaviour towards the Managing Director and Financial Controller of the respondent company.
However, in evidence PS on behalf of the respondent company indicated that the claimant was dismissed primarily arising out of his failure to engage with the disciplinary process. NS, Financial Controller of the Company, who was involved in the discussion that led to the dismissal was unable to advise the Tribunal as to why the claimant was dismissed. The claimant did not participate in the disciplinary process conducted by the respondent as he considered it to be unfair and in breach of principles of natural justice.
For the purposes of its deliberations the Tribunal has considered the issue from the perspective of a dismissal for aggressive behaviour and for failure to engage in a disciplinary process initiated by the respondent company.
The Tribunal is satisfied that, procedurally, it was entirely inappropriate that the disciplinary process would be conducted by PS and NS the two complainants against the claimant and, in the case of PS, a principal participant in whatever engagement occurred on the 4th June 2013. In the circumstances, the Tribunal cannot fault the claimant for failing to engage with such a fundamentally flawed process. The claimant made it abundantly clear to the respondent company as to why he would not engage yet the company took no steps whatsoever to address his legitimate concerns.
Further, on the merits of the decision to dismiss itself, the Tribunal preferred the evidence of the claimant as to what occurred on the 4th June 2013 and 5th June 2013 and had issues with the credibility of some of the evidence given before the Tribunal on behalf of the respondent company. The Tribunal is of the opinion that, on balance, matters on the 4th June 2013 and 5th June 2013 unfolded as recounted by the claimant and that, accordingly, there were no grounds to dismiss the claimant as a result of what occurred on those dates.
The claimant’s allegation that he was unfairly dismissed is well founded. By way of compensation the Tribunal awards the claimant the sum of €30,000 under the Unfair Dismissals Acts 1977 to 2007. Further, the claimant is awarded the sum of €2,178 in lieu of six 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)