EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Dawid Kowalczyk UD354/2013, MN196/2013
WT50/2013
against
Jerzy Kruszynski
t/a Pimp My Car
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Sligo on 1st September, 17th, 18th November 2014
Representation:
Claimant: Ms Laura Spellman, McGovern Walsh And Company, Solicitors,
33 Chapel Street, Sligo
Respondent : Seamus Monaghan & Co, Solicitors, Teeling Street, Sligo
The Tribunal was informed at the outset of this hearing that the appeal under the Organisation of Working Time Act, 1997 was being dealt with by another forum.
The determination of the Tribunal was as follows:
Respondent’s Case
The proprietor of this car valeting business told the Tribunal that the claimant commenced employment with the respondent in August 2011. A signed contract of employment was present to support that date. This witness maintained that the claimant contracted to work on a part time basis notwithstanding his stated hours of work on that contract. This witness denied that the claimant had been working for a previous linked entity prior to commencing with him. The respondent’s bookkeeper attended to payments made to the claimant.
At that commencement of the claimant’s employment the proprietor received assurances from him that he had a valid driving licence. However, he never sought physical evidence of that licence. The witness described the claimant as a good hard working employee whose work output was “ok” ninety percent of the time. The proprietor gave examples of the claimant’s alleged misbehaviour from October 2011 to January 2013. These included irregularities in pricing and receiving payments from customers, using a wrong solvent on a vehicle and subsequently dealing inappropriately with the customer and the witness about this.
Other incidents included driving at excessive and dangerous speeds within the premises, and treating a new employee with scorn. As a result of some of these incidents the respondent issued verbal warnings to the claimant. Those warnings were not confirmed in writing. As a result of another aggressive incident by the claimant on 18 January 2013 the witness issued him with what he called a final warning and told him to vacate the premises as he was now suspended. A week later these two gentlemen met again and the proprietor informed him that the respondent no longer had hours and work for aggressive people. His effective dismissal was on the grounds of gross misconduct. During the course of that meeting it was revealed that the claimant did not have nor ever had a valid drivers’ licence while in the employment of the respondent.
Witnesses for the respondent gave evidence to support the claims made by the proprietor.
Claimant’s case:
The claimant DK told the Tribunal that he began work in March 2010 for the proprietor’s brother. There was no contract and he was paid in cash. DK said he worked about 30 hours and when the proprietor’s brother got a fulltime job away from the business he worked on his own for a period of 3 months. He had the keys and customers booked valets through him. In September 2011 he was told he had a new boss but that he would continue to work in the business. His new boss (the proprietor) had another job and would come in for an hour or two. DK had keys and would open and close the business and if the proprietor was away (as he often was) DK had full run of the business. If it was very busy he had people on stand-by to come in and do a few hours and he had a decent relationship with his employer, they had trust and confidence in him to do the job.
DK denied allegations made by the proprietor’s family and friends. He said that he did curse/raise his voice on occasion but never received any warnings from anyone. The proprietor was fully aware from the beginning that he had been disqualified from driving because he had borrowed the money from his brother to pay for the fine.
The final incident with a member of staff led to him raising his voice and the person concerned reported the incident to the proprietor. He was told to apologise to her or he would be sacked. He went to say he was sorry but she wouldn’t talk to him. He went home that evening and was not contacted again by the respondent.
He went to the business after a few weeks to look for a reference, and get his P45. The proprietor told him that he could no longer afford to employ him legally but that he could do hours illegally. Social Welfare, had advised DK that he had not been registered for credits. Evidence of loss was given.
Determination:
The Tribunal carefully considered all the evidence adduced at the hearing and in the submissions made.
There was a complete conflict of evidence in this case. Some extraordinary allegations were made by the respondent in relation to the claimant’s conduct, which mainly arose in response to cross-examination rather than in his evidence in chief.. There was disconcerting evidence that none of the participants in the car valeting business appeared to have a valid driving license and there was no policy of insurance attached to the car valeting business. Cars had to be moved to carry out this work and were being driven without insurance. The respondent took no proper steps to verify the claimant’s entitlement to drive. When asked the respondent stated that the customers’ own insurance would cover any claim. Patrons of the business were left at risk of uninsured losses.
The evidence from both parties was contradictory and unsatisfactory, with little consistency shown by either the respondent or the claimant in their evidence. The standard of proof required by the Tribunal to reach a determination is the balance of probability. On the balance of probabilities the Tribunal finds that while the respondent would have been justified in bringing disciplinary action against the claimant for the incident involving a female employee, which may have led in a valid and reasonable dismissal of the claimant, the failure of the respondent to follow proper (or indeed any) fair procedures in dismissing the claimant has rendered the claimant’s dismissal unfair.
However, the Tribunal was satisfied that the claimant contributed to a very large extent to his own dismissal.
Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and taking into account the extent of the claimant’s contribution to his own dismissal, and the unsatisfactory evidence of mitigation of loss, awards the claimant €1,000 in compensation.
The Tribunal also award the claimant €500.00 being the equivalent to two week’s 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)