EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Patrick Kavanagh UD1412/2012
MN813/2012
against
Advance Tyre Company Limited T/A Advance Pitstop
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. P. Hurley
Members: Mr. W. O'Carroll
Mr. F. Dorgan
heard this claim in Limerick on 19th June 2014
and 13th April 2015
Listed Representation:
_______________
Claimant(s):
Mr. John Kane for Mr Gerard Kennedy, SIPTU,
Liberty Hall, Eden Quay, Dublin 1
and
Mr. Philip Moloney BL instructed by
Mr Cathal Mooney, John Battles & Co., Solicitors,
3 New Wellington Terrace, O'Connell Avenue, Limerick
Respondent(s):
Mr. Joe McCormack, Advance Pitstop,
Advance House, John F. Kennedy Drive, Dublin 12
and
Ms. Karen Killalea instructed by Ms Bríd nic Suibhne,
A&L Goodbody Solicitors,
IFSC, North Wall Quay, Dublin 1
The determination of the Tribunal was as follows:-
The claimant claimed unfair dismissal but the respondent contended that he had been fairly dismissed after failing to explain promptly and adequately how he had been seen carrying items that he was not expected to carry.
Determination:
It was contended at the Tribunal hearing that there was a legal and factual distinction between “taking” and “taking out” stock. After hearing all witness testimony proffered, the Tribunal gave consideration to all aspects of the case including the delay before the respondent was informed that the batteries at issue, at the centre of the case, were the property of a third party and the claimant’s offer to pay the respondent financial compensation if there had been any misunderstanding. It was concluded by Tribunal members that the claimant had not been stealing or intended to steal the batteries. Although the claimant had been seen with the batteries, it was concluded by the Tribunal that dismissal was a precipitative, inappropriate and disproportionate response by the respondent. In arriving at this determination the Tribunal was unanimously of the view that the claimant was an honest witness.
In the circumstances the Tribunal finds that the claimant was unfairly dismissed.
The Tribunal, in allowing the unfair dismissal claim has considered ancillary aspects such as contribution and mitigation of loss. In all the circumstances of the case including the fact that the claimant went into business for himself, the Tribunal unanimously deems it just and equitable to award the claimant the sum of €7,000.00 (seven thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
In addition, allowing the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, the Tribunal awards the claimant the sum of €3,600.00 (this amount being equivalent to six weeks’ gross pay at €600.00 per week).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)