EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Ray O'Leary -appellant UD1238/2014
against the recommendation of the Rights Commissioner in the case of:
Carlow Graphics Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Carlow on 9th September 2015
Representation:
Appellant: Mr Tom O Dwyer, S.I.P.T.U., Liberty Hall, Dublin 1
Respondent: The directors of the company who were accompanied by Mr. John Slattery
Background:
This claim came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner’s Recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-139187-ud-13/JT.
Determination:
The Tribunal has carefully considered the evidence adduced in the course of this hearing. The appellant was taken on by the respondent company in and around the end of 2010. The respondent company is engaged in making signs and fitting kitchens and the appellant came from a construction background and was obliged to learn a range of skills on the job.
It is common case that the appellant made mistakes on the job and whilst the appellant said he was not the only employee to make costly mistakes he also clarified that he had none of the qualifications and experience of colleagues whose work was not coming up to scratch.
An incident in May of 2012 seems to have marked a turning point in the relationship between the appellant and his employer. An officer of a major client of the respondent company (C. Limited) had reason to communicate with the appellant’s Managing Director on foot of a purported conversation between one of his fitters and the appellant herein. The Tribunal cannot possibly know which version of this conversation between two workers from different companies is correct, the Tribunal has to note that there was no loss to either company and no accusation of bad workmanship nor did any financial repercussions arise and an idle conversation between two workers should never have been given the weight and import that it was given. The issuing of a final written warning on foot of this conversation was an onerous sanction and the Tribunal recognises that the appellant may well have felt that his days were numbered from this point on.
The Tribunal in fact went on to hear evidence to the effect that the working relationship continued for another year albeit the working relationship was less than satisfactory.
Neither party offered corroborative witnesses to verify or confirm their version of events. On the one hand the Tribunal was told by the employer that every effort was given to the appellant to come up to an acceptable standard of work and yet mistakes continued to be made. The evidence tendered was that the appellant was “hot-headed” and resented discipline that the appellant was malevolent and intimidating in the workplace and the situation was getting out of hand.
The appellant described a workplace operating at full throttle on the other hand, where people were given little chance to prepare themselves and expected to pull off exemplary craftsmanship under highly pressurised circumstances. The appellant says that he was being bullied and was stressed but his employer never whole-heartedly addressed these issues. The appellant, on his own admission, accepted he was somewhat of a “loud mouth” and coming as he did from a unionised workplace had no issue with highlighting matters which he felt were unfair. For example the appellant believed it was unfair that overtime would be worked at a flat rate.
The Tribunal cannot favour one version over the other but must accept that both the Managing Director for the company and the appellant believed their version to be true and accurate and, in fact, the versions are not irreconcilable and the Tribunal accepts a pressurised workplace employing up to 20 people can be a difficult environment in which to perform well and management has to be entitled to look for improvement and to prevent employees from going off script.
Things came to an unexpected heard on Wednesday, the 10th of July 2013. On that date the appellant came into work early and commenced the task of cutting a Foamex sheet as directed. It seems the task was carried out in an unsatisfactory way and the appellant was taken to task over his workmanship by his line manager (BMcD).
At this point the appellant says he became unwell and told his line manager he would have to go home which he eventually did do. The Tribunal accepts that the appellant’s response to his having been chastised is unfortunate in its timing but the fact is that any employee can fall sick at any time and have to go home and the timing and convenience of the employer cannot always be a consideration. BMcD confirmed the appellant left by reason of feeling unwell as did MK the receptionist contacted by the appellant to confirm a Monday return date.
Despite this and with undue haste, a letter terminating the appellant’s employment issued on the same Wednesday the 10th of July citing his wilful “walking off the job” coupled with continuous unsatisfactory standards of work giving rise to gross misconduct.
The Tribunal does not accept the appellant walked off the job in the manner described and does not therefore recognise a gross misconduct as having been committed. The respondent may well ultimately have been well within its rights to terminate his contract of employment on the grounds of under-performance but this is conjecture and the Tribunal can only find that the termination for gross misconduct that the respondent sought to effect on 10th of July 2013 unreasonable and unfair. Taking into account the fact that the appellant went to college and upskilled himself and has returned to the workplace in happier circumstances and with greater remuneration the Tribunal finds the appropriate sum of compensation to be €10,000. Thus, the Tribunal upsets the Rights Commissioner’s Recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-139187-ud-13/JT.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)