EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Marc McNally - appellant UD1553/2013
against the recommendation of the Rights Commissioner in the case of:
Brian Fallon T/A Fallon's Bar Kilcullen
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr G. Mc Auliffe
Ms. E. Brezina
heard this appeal at Dublin on 28th January 2015 and 13th April 2015
Representation:
Appellant: Mr. Lars Asmussen BL, instructed by Mr Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr Aidan Phelan, Peninsula Business Services (Ireland)
Limited, Unit 3 Ground Floor Block S, East Point Business
Park, Dublin 3
This case came before the Tribunal by way of the appellant (employee) appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference r-132051-ud-13/RG.
The determination of the Tribunal was as follows:-
Appellant’s Case:
The appellant was employed as a senior barman and commenced employment on 25th September 2007. He signed a contract of employment but never received a copy of the contract. During the course of his work on 30th September 2012 he noticed four people in the car park, one being his former employer. An altercation occurred between him and his former employer. Shortly afterwards TT, General Manager told him that a complaint had been lodged against him but could not tell him the nature of the complaint. He was told to go home. Later that evening he was told it was best that he not come into work for a few days.
On 4th October 2012 the appellant emailed MON, Manager, enquiring about his suspension from work and requested a copy of the complaint made against him. Also in that email he raised a grievance of being bullied and harassed by MON. He requested an independent person to conduct any hearing of the matter.
On 5th October 2012 the respondent replied to the appellant acknowledging receipt of the appellant’s email and requested the appellant to attend a grievance meeting on 10th October 2012. The appellant received this letter on 9th October 2012. By email dated 10th October 2012 the appellant regretted that he would be unable to attend the meeting as he had not received sufficient notice and required further documentation.
By letter dated 10th October 2012 the respondent notified the appellant in writing of his suspension on full pay which was enacted on 30th September 2012 to allow a full investigation to take place into the appellant’s alleged inappropriate behaviour towards a customer.
The appellant emailed the respondent on 17th October 2012 and still had not received a copy of the complaint made against him. The appellant asked for the grievance meeting to be rescheduled to 22nd October 2012.
The appellant attended a grievance hearing on 23rd October 2012 together with BF, owner of the business, TT, Restaurant Manager and VM, Chef. During the course of that meeting the appellant again said he was not provided with details of the complaint made against him on the day that he was sent home. TT strongly denied this and both disagreed on how events enfolded. TT had telephoned the appellant informing him that he was being suspended pending a full investigation of the incident. Once again TT disputed this saying that he had given ample reasons for his suspension. The appellant was notified of the outcome of that meeting by letter dated 25th October 2012. The appellant refused to sign a copy of the minutes. The meeting was rushed and the respondent concluded that sufficient grounds could not be found to substantiate his grievance.
By letter dated 5th November 2012 the respondent requested the attendance of the appellant at a disciplinary hearing on 8th November 2012. The respondent enclosed copies of three allegations against the appellant. By email dated 7th November 2012 the appellant notified the respondent that he would not be attending the hearing. The disciplinary hearing was rescheduled for 12th November 2012.
The appellant lodged an appeal to his grievance and this appeal hearing took place on 12th November 2012. The appellant did not attend. It was chaired by GB, company accountant. The appellant refused to attend that meeting because he wanted an independent adjudicator to hear the appeal and believed he would not get a fair hearing.
When the appellant received a copy of the disciplinary meeting minutes which was held on 12th November he was baffled and believed his career with the respondent was terminated. On 7th January 2013 the appellant was shocked to receive a letter dated 13th December 2012, from the respondent indicating that he was on a first and final written warning. Following that letter he requested his P45 from the respondent.
After 30th September 2012 the appellant suffered ill health for a period of time. When he recovered from his illness he began to seek alternative work. He was unsuccessful in obtaining new employment. On 2nd September 2013 he commenced a year long art course in a local college and was also in receipt of a students’ allowance. He was actively seeking part time employment during this time.
Respondent’s Case:
The respondent carries on the business of running a bar and restaurant, has 30 employees and in business 35 years.
Following an incident in which a customer made a complaint on 30th September 2012 BF wanted to hear the claimant’s version of what had occurred that day. He spoke to claimant but during the course of that telephone call there was a breakdown in communications.
On 4th October 2012 the appellant emailed MON requesting a copy of the complaint made against him and also lodged a grievance in which he felt he was bullied and harassed during the course of his employment and that MON had orchestrated a vendetta against him to have him removed from his employment on a number of occasions. In the previous summer the appellant had raised his grievance with BF and BF subsequently spoke to MON about the matter. MON denied the allegation of bullying. BF did not take the matter any further.
In around 8th October 2012 BF invited the appellant to a grievance meeting on 10th October 2012.
The appellant emailed BF on 9th October 2012 outlining his version of what had occurred on 30th September 2012 and his bullying complaint and on 10th October 2012 the appellant emailed BF advising him that he would not be attending the grievance meeting until he received certain documentation including a copy of his contract of employment, a copy of the respondent’s policies and procedures, a copy of the alleged complaint, a copy of the complaint made against him and confirmation who would be attending the meeting.
BF nominated TT to hear the appellant’s grievance and rescheduled the grievance meeting for 17th October 2012 and told the appellant that he could be accompanied by a fellow employee or trade union official.
The grievance meeting took place on 23 October 2012. During the course of that hearing the appellant deviated from his grievance during the course of the hearing. BF believed that the appellant had adequate time to prepare for that meeting.
On 25th October 2012 BF wrote to the appellant enclosing minutes of that meeting and indicated that he could not find sufficient grounds to substantiate his grievance and offered the appellant a right of appeal.
BF invited the appellant to a disciplinary meeting on 8th November 2012 and attached a copy of the customer complaint dated 30th September 2012 together with other documents. BF outlined that the appellant’s non attendance at the meeting may be deemed to be gross misconduct, the penalty for which could lead to the summary termination of his employment.
On at least ten occasions BF had tried to bring the parties together. He had exhausted every avenue. BF agreed that the appellant had raised on at least four or five occasions a request for an independent adjudicator.
The disciplinary hearing was heard on 12th November 2012 in the appellant’s absence. As the appellant had failed to follow a reasonable management instruction to attend the hearing BF made the decision to terminate the appellant’s employment by reason of gross misconduct.
BF had become frustrated with the appellant. He had a wonderful working relationship with the appellant during his tenure.
In hindsight BF believed the appellant deserved a second chance and wrote to him on 13th December 2012 and offered him re-engagement. He revoked his decision to dismiss the appellant and instead decided to issue him with a First and Final Warning.
The appellant emailed BF on 8th January 2013 and requested his P45. BF responded on both 9th January 2013 and 12th February indicating that there was no reason to issue the appellant with his P45 as he was still an employee of the company and his employment had not been terminated. The appellant did not reply.
On 17th May 2013 BF again wrote to the appellant saying he was surprised to receive papers from the LRC claiming he was pursuing a claim for unfair dismissal. Again BF indicated that the appellant’s employment had not been terminated and asked him to make contact if he was still interested in holding his position within the company.
Determination:
The Tribunal has carefully considered the evidence adduced both verbal and written.
The hearing conducted by the Rights Commissioner was totally confined to the hearing of a preliminary issue. This issue related solely to the question of whether or not the appellant was dismissed. The Tribunal acceded to the application of the parties to considering the hearing of the appeal not only this issue but also the entire unfair dismissal application to the Rights Commissioner.
In respect of this preliminary issue it is found and determined that the appellant was dismissed by the respondent and that therefore the only remaining issue to be addressed was whether or not the dismissal was unfair.
It is common case that the appellant was suspended by the respondent following an alleged incident. While the interaction between the parties following this incident in respect of the appellant’s contribution to it left much to be desired, the respondent nevertheless succeeded in conducting a grievance meeting with the appellant in attendance. The Tribunal does therefore not accept that the respondent was unable to conduct a full and proper investigation into this incident.
It is found and determined that the respondent failed to conduct a full and proper investigation into the incident referred to and since it failed to do so it is clear that the disciplinary meeting conducted by the respondent, and which resulted in the dismissal of the appellant, was invalid and that the dismissal of the appellant was therefore unfair.
The Tribunal finally considered the evidence of the appellant in respect of his efforts to mitigate his loss, and determined that he did not make a sustained attempt to obtain suitable alternative employment.
The Tribunal upsets the recommendation of the Rights Commissioner and taking all the circumstances into account awards the appellant the sum of €7,500.00 under the Unfair Dismissals Acts, 1977 to 2007 in damages in respect of his dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)