UD105/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                CASE NO.

Patrick Holden                                    -claimant

                                                                                                                        UD105/2015

against

Holden Plant Rentals Limited                        -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                    Ms S. Kelly

heard this claim at Kilkenny on 25th June 2015

Representation:

Claimant:        Mr. Eoghan O’Sullivan B.L. instructed by Mr Chris Hogan,

Poe Kiely Hogan Lanigan Solicitors, 21 Patrick Street, Kilkenny

Respondent:    Mr. Thomas Walsh, Thomas A Walsh & Co, 23 James Street, Kilkenny

Summary of evidence:

Dismissal as a fact was in dispute. The claimant was employed as a cleaner in the respondent’s yard and his main duty entailed washing plant machinery. The claimant was employed from January 2013 and his hours of work were 8am to 6pm.

There was a dispute between the parties as to when the claimant was provided with a contract of employment. It was the respondent’s case that he was provided with this document on the commencement of his employment but he had failed to sign and return it until October 2014. It was the claimant’s case that he was not provided with the contract of employment until October 2014 and he signed it at that time. The contract of employment document was opened to the Tribunal. It states that hours of work will be allocated as and when available. It was the claimant’s case that this differed from what was agreed at the commencement of his employment.

It was the evidence of the Managing Director that the company secured a significant new contract in the latter part of 2014 and that staff were informed of this in a meeting held during November 2014. Following this meeting he informed the claimant on 18 November 2014 that his hours of work would change, the claimant became aggressive and was given a verbal warning.

It was the claimant’s case that he did not recall any such staff meeting in November 2014 and that the first time he became aware of the proposed changes to his working hours was in December 2014 when the Managing Director approached him on a Thursday and informed him that his working hours would change from the following Monday to 10am to 8pm. He protested that he could not work the new hours as he had a very young child. It was the Managing Director’s evidence that the claimant did not state his child was the reason until closer to the termination of the employment but that he had raised transport to work as an issue. He could not understand this as he believed that the claimant lived 100 yards from work and he was unaware that the claimant had moved address.

It was common case between the parties that the claimant attended for work the following Monday at 8am. It was the claimant’s case that he was sent home and placed on suspension without pay for the week. It was the company’s case that the claimant attended at its premises each day on 1,2,3,4 December and that he became abusive on 4 December 2014. The claimant refuted this stating he only attended the workplace on 1 and 8 December 2014. When he attended on 8 December 2014 he was told once again to go home. He enquired if he was being dismissed and the Managing Director told him he was not being dismissed but was being “let go.”   The claimant gave evidence of his financial loss and his efforts to mitigate it.

It was the Managing Director’s evidence that staff are generally flexible in terms of working hours and the claimant was the only one who refused to change his hours. He had cautioned the claimant a number of times during his employment for the health and safety issue of wearing earphones at work. The Managing Director stated he was very surprised at the claimant’s reaction on those occasions and as a result of how the claimant reacted a policy was adopted that only the Managing Director addressed the claimant on issues or accompanied other staff members if they had to address him on an issue.

It was the claimant’s evidence that he was warned on only one occasion about wearing earphones while working in the yard. He was surprised that the company had file notes of three such cautions. The claimant had not seen these file notes prior to the Tribunal hearing nor had they been signed by him. He also refuted in cross-examination that he became aggressive and defensive when cautioned.

It was the Managing Director’s case that the claimant continued to attend for work at 8am and that he became extremely aggressive and abusive towards everyone and he described the claimant as “borderline violent” by the end of employment. It was the Managing Director's evidence that the claimant departed the employment of his own accord and was not dismissed. The human resources department tried to make contact with the claimant. The claimant disputed this in his evidence stating that it was he who had attempted to make contact but had not received a response.

In reply to questions from the Tribunal in relation to the fact that the claimant’s behaviour as described was not noted in the various cautions, the Managing Director stated that the claimant’s behaviour was initially confrontational but latterly became aggressive.

Determination:

The Tribunal having considered the entirety of the evidence adduced before it and documentation submitted has concluded that the claimant was not presented with a written contract of employment until October 2014 in circumstances where he was not given the appropriate opportunity to consider the terms of the document. The Tribunal has not found the evidence of the respondent’s witness to be credible around this particular issue. The Tribunal does not believe that the claimant saw this document before October 2014.

Further, the Tribunal is satisfied that it was a term of the claimant’s unwritten contract of employment from 24 January 2013 that he work for the hours 8am to 6pm Monday – Friday each week. The claimant’s “time sheets” are supportive of this view.

The respondent sought to unilaterally change a fundamental terms of the claimant’s contract, namely, his working hours, without any consultative process or effort to secure agreement on the part of the claimant. The respondent acted unilaterally and without any regard for the position of its employee.

The Tribunal further rejects the respondent’s evidence that the claimant was aggressive, threatening and, on one occasion, guilty of conduct that bordered on violence on at least one occasion. The Tribunal found the respondent’s evidence to lack any credibility on this issue. Indeed, of four employee performance and disciplinary report forms presented to the Tribunal (none of which had previously been seen by the claimant) not one made any mention of aggression or threatening behaviour on the part of the claimant.

It is the opinion of the Tribunal that the claimant was dismissed when he objected to a fundamental change in his terms of employment being foisted on him. The employer’s legitimate need to change work practices to enable it to meet specific requirements of a new client did not entitle it to arbitrarily change the claimant’s terms of employment and to dismiss him when he refused to accept this unilateral change. The claimant was unfairly dismissed and has established his entitlement to be compensated.

Having considered the totality of the evidence, having reviewed all documents submitted and considered what was urged by the parties’ representatives, the Tribunal is awarding the claimant €30,000 in respect of his unfair dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)