HSD152

The Respondent wrote a letter dated 21 July 2014 by means of which he attempted to alert management at the Appellant’s Keeper Road premises about certain unspecified “health and safety issues” which he perceived to be impacting on the performance of his job. The letter itself states that it “ is not a letter of notice but a letter of refusal to work in conditions that can only be described as extremely dangerous for all staff involved in that area.” It is not disputed that the aforementioned letter is a protected action within the meaning of section 27(3) of the Act. It is also not disputed that the Respondent’s employment with the Appellant terminated on 21 July 2014 after the Respondent had written and submitted the letter of that date.

There is a substantial conflict between the Parties’ evidence in relation to the circumstances in which the Respondent’s employment terminated. The Respondent’s case is that he submitted a copy of the letter to each of three managers sometime in the late morning or early afternoon of 21 July 2014. He named two of the managers in question: Mr Flanagan (an interim general manager) and Mr Johnston (the Head of Commercial Logistics and the most senior manager on site); he could not recall the name of the third manager to whom he says he gave a copy of the letter. Mr Johnston’s evidence is that he didn’t see the letter as submitted until much later that day, certainly until after the Respondent’s employment had ceased. Mr Johnston does, however, accept that he witnessed the Respondent writing something earlier that day in an office at which time he instructed him to return to his work station.

The Respondent’s evidence to the Court is that, some two hours after submitting the copies of the letter, he was summoned to a meeting with Mr Flanagan, at the behest of Mr Johnston. The Respondent and Mr Flanagan were alone in an office for the duration of the meeting at which the Respondent alleges Mr Flanagan acknowledged receipt of the letter and then proceeded to dismiss the Respondent with immediate effect. The Respondent informed the Court that he did not question Mr Flanagan about his decision and did not attempt to get him to reconsider his decision. Instead, the Respondent left the premises having informed one or two of his colleagues on the way that he had been dismissed. The Respondent could not recollect at what time of day the aforementioned events took place.

Mr Flanagan was not called as a witness by the Appellant. The Court was informed that he is no longer employed by the Appellant.

The Court heard evidence from Mr Johnston. His version of events is as follows. At some stage during the course of the afternoon on 21 July 2014, he was informed by the Respondent’s Team Leader that the Respondent was not at his workstation and had gone missing. As the site was extremely busy on that day, Mr Johnston took it upon himself to try and locate the Respondent with a view to encouraging him to return to his workstation and to play his part in dealing with the considerable workload that the business had on hands that day. Mr Johnston claims that he spent 40 to 45 minutes trying to locate the Respondent and that he eventually met him walking on the entrance ramp to the Keeper Road premises. (At one point in his evidence, the witness stated he may, in fact, have spent up to a full hour looking for the Respondent that afternoon.) Mr Johnston gave evidence that he asked the Respondent what he was doing, to which the Respondent allegedly replied that he was ‘leaving the site.’ Mr Johnston told the Court that he proceeded to tell the Respondent that he wouldn’t hold him to his notice period and that he (Mr Johnston) would inform the HR department that the Respondent’s employment had ceased and he would instruct them to arrange payment in lieu of one week’s notice. Mr. Johnston further told the Court that he had a discussion about the Respondent – probably later that afternoon - with Mr Flanagan but that Mr Flanagan did not inform him that he had dismissed the Respondent earlier that day.

When pressed by the Court, Mr Johnston accepted that a meeting could have taken place between the Respondent and Mr Flanagan, as stated by the Respondent in his evidence. However, Mr Johnston was certain that Mr Flanagan would not have assumed the authority to dismiss an employee as Mr Johnston was the senior manager on site. Nevertheless, as Mr Johnston was not present at the meeting at which the Respondent claims he was dismissed by Mr Flanagan and in circumstances where the Appellant did not call Mr Flanagan to give his version of events, the Court is bound to accept the Respondent’s evidence in this regard.

The Court therefore finds that, on the balance of probabilities, Mr Flanagan received a copy of the Respondent’s letter on 21 July 2014 and, having read that letter, summoned the Respondent to a meeting at which he proceeded to dismiss him with immediate effect from his employment without any regard to fair procedures or natural justice. In this context, the Court also notes the wording of the final paragraph of the Respondent’s letter which is referred to above and in which the Respondent stated that the purpose of the letter was not to give notice i.e. notice of resignation.

Having carefully considered the written submissions of the Parties and their oral evidence in relation to the events of 21 July 2014, the Court further determines that there was a causal link between the Respondent’s submission of the letter of 21 July 2014 to the Appellant’s managers and the termination of his employment some two hours later on that date. The Court therefore finds that the Respondent’s dismissal in the circumstances amounts to penalisation within the meaning of section 27 of the Act.

The Appeal is dismissed. The Court sees no reason to disturb the award of compensation made by the Rights Commissioner which stands.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
30th September, 2015.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.