EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Krzysztof Jurek UD461/2013
-claimant MN251/2013
against
George Tutty Footwear Limited
-respondent
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 D. Hayes B.L.
Members: Mr. L. Tobin
Mr C. Ryan
heard this claim at Dublin on 27th February 2014
and 10th July 2014
Representation:
_______________
Claimant: Mr. Michael O'Neill, Solicitor, Kingscourt, 33 South Main Street,
Naas, Co. Kildare
Respondent: Mr John Barry, Management Support Services, The Courtyard,
Hill Street, Dublin 1
Summary of Evidence
The respondent company operates a specialist footwear business that makes orthopaedic footwear and made to measure riding boots. The claimant was employed as a shoemaker from the 15th of November 2006 until his employment was terminated on the 13th of July 2012.
Due to the downturn in business the claimant’s working week fluctuated between full-time and a 3-day week. It came to the respondent’s attention that the claimant was making handmade boots in competition to the respondent. The respondent investigated further and discovered that the competitors business card and website listed the claimant’s phone number as the contact.
The respondent called the claimant to a meeting on the 13th of July 2012. At this meeting he asked the claimant about the business. The claimant accepted that it was his business but did not see what the problem was; he was indifferent to the conflict. The respondent informed the claimant that he was not permitted to operate a business in competition to the respondent and remain in employment and that he would know that if he had read his contract. (A contract was not produced to the Tribunal). The respondent decided to summarily dismiss the claimant as he had lost trust in him. The claimant left the meeting stating ‘I’ll see you in Court’; this statement led the respondent to believe that there was ‘no other option but to part ways.’
The claimant accepts that the business card and website was his but that he had only received 2 orders and no boots had been made. The website and business card had been created in 2011 on impulse when the claimant was off work for a week. The claimant was in receipt of a contract a few years previous but did not sign it.
At a meeting on the 13th of July 2012 the claimant was summarily dismissed without any fair procedures, he was given 10 minutes to pack his tools and leave the premises. The claimant was employed in his wife’s shoe/boot business that started in September 2012.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The Tribunal is satisfied that the claimant had entered into business on his own account and that his business was in competition with that of the respondent. The Tribunal is satisfied that the behaviour of the claimant in this regard provided grounds for his dismissal. However, the Tribunal is equally satisfied that the respondent did not use any fair procedures in the manner with which the claimant was dismissed. The Tribunal is satisfied that the nature of the unfairness of the procedures used is sufficient to render the dismissal unfair. Accordingly the Tribunal is satisfied that the dismissal was unfair within the meaning of the Unfair Dismissals Acts, 1977 to 2007 and the claim under these Acts succeeds. However, in assessing the appropriate award, the Tribunal must take account of the extent to which the conduct of the claimant contributed to his dismissal. The Tribunal is satisfied that the appropriate remedy in this case is compensation and awards the sum of €3,000.00 as being just and equitable in the circumstances.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)