EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sergiy Safronov - claimant UD343/2013
Against
M2C Wireless Machine Limited - Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr M. Noone
Mr N. Dowling
heard this claim at Dublin on 31st March 2014, 10th September 2014, 11th September 2014, 13th November 2014 and 27th January 2015
Representation:
Claimant: Mr Peter Downey
Eagleton Downey Solicitors
Suite 1155, Fitzwilliam Business Centre, 77 Sir John Rogerson's Quay, Dublin 2
Respondent: Mr. Brian Collins BL on first day
Mr Mark O’Connell BL on the remaining days
Instructed by Mr John Tarpey
Roundtree Tarpey Solicitors
25 Upper Mount Street, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Evidence:
Dismissal was in dispute in this case. The claimant submitted a letter of resignation via email on 1st October 2012. On 25th September 2012 the Managing Director, MB, of the respondent company had instructed is accountant to prepare, but not issue, the claimant’s P45 as he wanted to ‘have it in his back pocket’. The accountant however issued the P45 on that day, but only sent a copy to the Revenue Commissioners. The claimant only became aware of the P45 when he made enquiries to Revenue later in the year. In his letter of resignation he requested his P45 to be issued. Both parties gave evidence that there was a breakdown in the employment relationship with both attributing blame to the other side. NJ, a former director of the respondent company, established a rival company in October 2012 which employed the claimant from January 2013.
MB gave evidence. The company is a start-up business involved in the design and production of charging units for electric cars. It has yet to make a profit. He used personal funds to set up the business and maintain it going forward. Some outside investment was secured later. He knew the claimant from a previous employment and hired him to design the units. The claimant was the only employee of the company. As a Ukrainian national he required employment to maintain his work permit. Other people became involved in the company in the hope that it would one day become profitable. They became director and shareholders including the claimant who held a 5% share.
During the course of 2012 relations became strained between MB and the claimant and NJ. MB found that the claimant began reporting to NJ and he felt isolated by both of them.
From mid-July to the beginning of September he could not contact the claimant. Neither NJ nor the claimant were available to him. The claimant continued to be paid as NJ had control of the chequebook for a time and continued to issue cheques to him.
The claimant had a good relationship with his employer until a board meeting in June 2012. This was the first board meeting after the shareholders’ agreement.
The claimant had concerns regarding the corporate governance of the company. He had disagreed with a van being purchased as the company could not afford it. He agreed that he discovered in July that MB had personally guaranteed the van loan and company overdraft. MB was removed as a signatory on the company chequebook at that time. NJ was then made a signatory.
He contended that MB told him to give a code to students in the University where the respondent’s office was based. MB later accused him of giving this out without permission. The claimant contended that there was value to this code but this was disputed by the respondent. He felt he could not trust MB after this incident and that others would not trust the claimant as a result of the board meeting accusation.
The claimant, NJ and MB carried out tests on the charger in August 2012. He contended that they discovered that in some sequences the protection in the box did not work and created a charge in the ground of 110 volts which could shock people or animals. MB said to leave it with him but nothing happened. The claimant felt he could be blamed later as he was the Chief Technology Officer. NJ raised the issue at a board meeting on 13th September 2012, which the claimant did not attend as he was on sick leave, and the Board produced a report which stated that the charger did not have any problems. The report had names but no signatures and the claimant was not satisfied with it. He went to a solicitor who advised him that the largest customer should be informed. He attended a meeting on 26th September 2012, while he was on sick leave, with the company’s largest customer without notifying the Board. The respondent refuted that there was any safety issue with the box or that it posed any risk to people or animals. The box had passed a safety compliance test.
The claimant accused MB of instructing him to use illegal software to write code. The company had no license for any software at the end of his employment having expired on 2nd September 2012. Again he was concerned that as CTO he would be held responsible. MB told him to use free software to avoid the licence. The respondent contended that the claimant was told to use free software.
The claimant contended that he was not absent from mid-July to early September. He contended that approximately 10 chargers in the Republic and Northern Ireland had faults and he drove with NJ to repair them. He also assembled boxes in the manufacturer’s premises in Tallaght. He worked under the instruction of NJ. He believed MB knew where he was. He contended that he also worked in the respondent’s office for a few days per week during this period while he tested boxes.
In September 2012 he submitted two illness certificates; one for the period 10th to 15th September and one for 14th to 21st September. The second certificate cited depression as the reason for the absence. The company did not contact him about this. The company contacted him for the return of company property. He gave his company laptop to NJ after wiping the software off it which resulted in the source code he had written being wiped also. He contended that he did this to delete the illegal software. MB backed up the computer every three months.
He discovered when he tried to claim illness benefit that the company had issued his P45 on 25th September 2012 and that his tax and PRSI had been paid until that date. He did not return to the office after his period of sick leave. He emailed on 1st October 2012 to resign as he had not been paid and no one had contacted him. There was no grievance procedure. In response to the Tribunal the claimant said he would have stayed and tried to resolve his issues if the company had continued to pay him while on sick leave and if they contacted him to discuss all the issues.
The claimant gave evidence in relation to his loss and mitigation of loss. He began working for NJ’s new company on 1st January 2013. The company was registered on 26th October 2012. He did not apply for any other work in the intervening period.
Determination:
The Tribunal is satisfied that in issuing the P45 on the 25th September 2012 the respondent formed the view that they intended terminating the claimant’s employment without any regard for proper procedures and in these circumstances the dismissal was unfair.
The Tribunal is also satisfied that the claimant contributed significantly to this termination by virtue of his conduct in the months preceding the termination.
Notwithstanding all of this, the claimant failed to provide any evidence of attempts to mitigate his loss between the termination and subsequent re-employment in January 2013. Therefore the Tribunal makes no award in the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)