UD160/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. 

UD160/2014

CLAIM OF:                                                                                                       

Oliver McDonnell                                                                              

against

Concrete Protection & Repair Systems Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr C. Corcoran B.L.

Members:     Ms J. Winters

                     Mr P. Trehy

heard this claim at Dublin on 27th May 2015

Representation:

_______________

Claimant:             Ms Bernie Thornton, Assistant Industrial Organiser, SIPTU,

                           Membership Information Centre, Liberty Hall, Dublin 1

Respondent:       Ardagh Solicitors, 168 Walkinstown Road, Dublin 12

Respondent’s case:

The owner of the respondent business MrT told the Tribunal that it was a family business consisting of eight employees, three of which were family members. He gave evidence of business difficulties and pay cuts implemented during the recession. The respondent tried and successfully succeeded in keeping people in employment rather than make them redundant. He required his staff to ring into the office if a job finished early and this was confirmed in memo’s put in wage packets. Staff signed time-sheets and he asked that they not be falsified.

MrT said that he always respected the claimant but in June 2012 (while the company was losing money) the claimant had three different complaints made against him due to poor workmanship. On one occasion his time sheet stated that he left work at 4pm but the client said he was gone off site by 1pm. On another occasion the respondent received a fixed penalty notice for a speeding violation at a time when the claimant was obviously travelling home but should have been on site. A disciplinary meeting was held with the claimant on 4^th July 2012and he was given paid time off to resolve any issues he had, along with a final written warning.

Things went well for a year or so but in July 2013 an incident occurred when a major customer   asked for a site visit and the claimant said there was no way he could be there, the job he was on would not be finished before 5pm. MrT said he and his son drove to the location and they spotted the claimant in his van at 1.15pm, obviously on his way home. Memos went to all employees again reminding them of procedures regarding finish times but the final straw came in September when Mr T called to a site in Portlaoise at 12.45pm and was told by security that the claimant and his crew had left at 12.45pm “the same time as they left at yesterday”.

Mr T called the claimant to his office on 5^th September and asked him “why”? The claimant refused to answer. He asked for an assurance that it would not happen again and the claimant again refused to answer. He dismissed the claimant as he felt that hours claimed were not being worked and it was equivalent to theft from the company. The claimant continued to send medical certificates to the respondent after his dismissal but they were returned along with his P45 in October 2013.

Under cross examination Mr T agreed that others were abusing the system. He said it was probably weak of him not to have addressed the incident in July 2013 directly with the claimant and there was no written contract or grievance procedure in place.

Claimant’s case:  

The claimant told the Tribunal that he was always on site at 7am but 7.30am went on the time sheet. His return journey home was often 1hour 30mins so if he left early it was to cover his travelling time. He said that everybody was doing the same thing and it was common knowledge and common practice. He could not remember much of the conversation on the day he was dismissed but was not asked to promise not to leave early again. He gave evidence of loss.

Determination:

The Tribunal confirms that the dismissal was, in the circumstances, unfair but only insofar as the investigation process was inadequate and delayed, there was no contract of employment and no disciplinary code in place. Having regard to the bigger picture the Tribunal finds that the claimants contributed extensively to his dismissal and in those circumstances awards the claimant the sum of €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)