UD1133/2014, TE94/2014, PW129/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                      CASE NO.

Bowman Associates Limited T/A Recall Security Service   -employer              UD1133/2014                                                                                                                                                                             TE94/2014

                                                                                                                      PW129/2014

against the recommendation of the Rights Commissioner in the case of:

David Harris   -employee

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

PAYMENT OF WAGES ACT 1991

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012

and a direct claim by the employee (MN751/2013) under

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACTS, 1973 to 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                    Ms S. Kelly

heard this appeal at Thurles on 20th July 2015

Representation:

Employer:       Ms. Caroline Latham B.L. instructed by Mr. Brendan Looby,

McCarthy Looby & Co, Solicitors, Church Street, Cahir, Co Tipperary

Employee:      Mr. Gareth Hayden B.L. instructed by Mr John Joy, John M. Joy & Co,

38 O'Connell Street, Clonmel, Co. Tipperary

Background:

The appeal came before the Tribunal by way of the employer appealing against a Rights Commissioner Recommendation (references: r-141118-ud-13/GC, r-139854-pw-13/GC and r-139852-te-13/GC). During the course of the hearing the employer confirmed it was not pursuing the appeal under the Payment of Wages Act, 1991 and the Terms of Employment Information Act, 1994 to 2012.

The employee also brought a direct claim to the Tribunal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 (MN751/2013).

Summary of evidence:      

Dismissal as a fact was in dispute between the parties.

The employee was employed as a security officer with the company from August 2012. It was common case between the parties that the employee worked at many locations during the course of his employment including a number of store locations for a retail chain and a hospital in Clonmel. It was the employee’s evidence that usually one week's notice of the working schedule is provided to employees. It was the employer’s case that occasionally a shift would need to be filled at short notice. Two supervisors in the company gave evidence to this effect to the Tribunal.

On Sunday, 1^st September 2013 the employee reported for duty at 6.45am at the hospital site. KB was also working at the site. He was senior to the employee in question and carried out mobile patrol duties while the employee was based in the office. The Managing Director of the company received a telephone call at 8.20am from the retail client. It transpired that due to a misunderstanding the company had not provided a security officer to the Thurles store as was required from 8am. As there were two members of staff at the hospital site he made a decision to send the more junior staff member to the store in Thurles.

Mr. D, a supervisor with the company, conveyed the Managing Director’s instruction to the employee in question shortly after 8.30am. The employee raised the issue that he did not have sufficient fuel in his vehicle to travel to Thurles and later back to his home in Carrick on Suir. In addition he did not have any money with him to purchase fuel.

Mr. D subsequently presented at the hospital site at 9.40am with a ten euro note from the Managing Director for the employee. The employee stated in evidence that he thought this was an insult as it was not enough to make the journeys asked of him and he said this to the supervisor. Mr. D’s evidence was that the employee seemed somewhat annoyed by the sum of money being offered to him but more annoyed about being asked to report to Thurles. 

The Managing Director telephoned the employee to enquire if he had left for the Thurles site. Both the employee and the Managing Director gave an account of this conversation in their evidence to the Tribunal. It was the employee’s evidence that the Managing Director swore at him and told him to get off the site. It was the Managing Director’s evidence that the employee did not raise with him that he needed additional money for fuel. He asked the employee if he was going to Thurles or not, to which the employee responded by threatening him and telling him to “f**k his job.” The Managing Director told the employee to get off the site as he could not have an employee speaking in such a way on any site but particularly at the hospital site. It was his evidence that he did not tell the employee to get off the site because he was dismissed. He reiterated that asking the employee to leave the site was due to his conduct on site during the telephone call.

During cross-examination the employee refuted that he threatened the Managing Director and stated that the Managing Director had become abusive towards him first on the telephone call. He refuted that he had used language during the telephone call which could have placed the hospital contract in jeopardy.

A supervisor (Mr. S) gave evidence of receiving a telephone call from the employee on the morning in question. The employee told him he had been asked to report to Thurles. The employee sounded irate and his voice was raised. Mr. S told him there was no point becoming upset that “these things happen, you know that.” It was Mr. S’ evidence that the employee said he had no petrol and that the Managing Director had only come up with ten euro for him. Mr. S received a second telephone call from the employee thirty minutes later wherein the employee said he had ”..told that b*****d I’m sick of that f*****g s**t” and that he had also told the Managing Director that he was “..going to box the f*****g head off him.” During cross-examination the employee refuted that he had made these statements or that he was unhappy about going to Thurles. His only issue was that he did not have enough fuel. The employee outlined that he was also concerned at being such a distance from home at short notice as his wife had suffered health problems during that year and had been unwell on the morning in question.

It was the employee’s evidence that after he had left the site he received a voicemail from the Managing Director enquiring as to his whereabouts. It was apparent to the employee from the message that the Managing Director had come to the hospital site looking for him and the employee believed it was to attack him. It was the Managing Director’s evidence that he attended at the site to find out what was happening and he found that the employee had left. He left a voicemail asking the employee where he was as he was concerned about him and because they had had known one another for a long time preceding the employment. He telephoned the next employee on the list to cover the Thurles site.

The employee contacted Mr. S to collect his uniforms the following evening. Mr. S stated that he tried talking to the employee a few times in an effort to have him return to work. It was the Managing Director’s evidence that the company would have investigated the matter but this did not arise as the employee had told him “to shove” his job and returned his uniforms.

The employee attended a meeting in the Managing Director’s office later that week to collect his wages and P45. He was accompanied by Ms. M at the meeting.   It was the employee’s evidence that the Managing Director asked him at the outset of the meeting if he was “…going to f*****g burst my head now?” The employee said he just wanted his wages. He also asked for reasons for his dismissal and was told that it was his refusal to go to Thurles. Ms. M gave evidence confirming the employee’s account of the meeting in the office with the Managing Director.

It was the Managing Director’s evidence that he had no objection to the employee being accompanied at this meeting but he did not want Ms. M to become involved in the conversation between himself and the employee. He therefore objected when Ms. M asked for the details of the employee’s file to be provided but stated if the employee himself had asked for this he would have been no issue in providing it. He did raise the issue with the employee that he had threatened him during the telephone conversation the previous Sunday.

The employee gave evidence of loss and his efforts to mitigate that loss.

Determination:

This case came before the Tribunal on appeal from the Rights Commissioners. There was a complete conflict in evidence as to how precisely the employee’s employment came to an end. It was the contention of the employee that he was summarily dismissed. The employer’s position was that the employee quit his employment.

Flexibility was a fundamental aspect of the employee’s employment. It was common case that the employee was asked to travel to Thurles on short notice. It is clear that the employee was unhappy with the request and with the expectation place upon him; however, it is the Tribunal’s opinion that he was, nevertheless, albeit reluctantly, prepared to travel.

This view is supported by the evidence of Mr D called as a witness for the employer who confirmed to the Tribunal that on his last contact with the employee on the 1^st September 2013, he was left with the impression that the employee was going to travel to Thurles.

The Tribunal then heard evidence of a phone call from the employer’s Managing Director to the employee. The Tribunal believes that the conversation became heated and that both parties contributed to this occurring. The employee’s evidence is that he was dismissed during the course of that call. The Managing Director advised the Tribunal that he had not dismissed the employee but had simply asked him to leave the hospital site where he was working at the time.

The Tribunal in considering this conflict in evidence is obliged to consider the creditability of these two witnesses in the context of the issue that arose and the conduct of both parties subsequent to the 1^st September. On balance the Tribunal prefers the evidence of the employee that he was summarily dismissed during his phone conversation with the Managing Director on the 1^st September 2013.

To dismiss the employee in this manner and without due process constituted unfair dismissal. It may be that the employee’s response to the Managing Director on the 1^st September warranted disciplinary investigation and ultimately some sanction, however, even if the conduct was as relayed by the Managing Director, this did not justify instant dismissal.

The Tribunal upholds the decision of the Rights Commissioner that the employee was unfairly dismissed. The Tribunal awards the employee the sum of €10,000 under the Unfair Dismissals Acts, 1977 to 2007, thus varying the Rights Commissioner Recommendation (reference: r-141118-ud-13/GC.)

The employee also brought a direct claim to the Tribunal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 (MN751/2013). However, an award in relation to notice was made by the Rights Commissioner under the Payment of Wages Act, 1991 (reference: r-139854-pw-13/GC). As the appeal under the Payment of Wages Act was withdrawn before the Tribunal, the Rights Commissioner Recommendation stands and 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)