UD853/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Daniel O'Reilly – claimant                                                                                        UD853/2014

Against

Acuman Facilities Management Limited (In Liquidation) – respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr J. Revington S.C.

Members:       Mr F. Moloney

                        Mr J. Maher

heard this claim at Dublin on 27th July 2015

Representation:

_______________

Claimant(s):               Mr Lars Asmussen BL instructed by

                                    Ms Hazel Atkins

                                    Employment Matters, Suit 9, The Atruim, Canada Street, Waterford

Respondent(s):           No appearance or representation on behalf of the Liquidator

The determination of the Tribunal was as follows:-

A Liquidator was appointed to the respondent company on 24^th October 2014. There was no appearance by or representation on behalf of the Liquidator. The Tribunal is satisfied that the Liquidator was on notice of the hearing.

The Tribunal heard the uncontested evidence of the claimant. He commenced his employment with the company as a maintenance technician in May 2012. He alleged that the behaviour of his managers was such that it affected his health and forced him to resign his position with the respondent company.

The employment was uneventful until the claimant received a letter while on annual leave requesting that he attend for a ‘Disciplinary Meeting – Fact Finding Meeting’ on the following Monday 14^th October 2013 at 9am. The issues outlined were:

• Failure to complete timesheets, provide receipts and supplier dockets in compliance with company procedures.
• Failure to answer recent telephone calls and text messages from his line manager.
• Issues regarding the poor quality of his recent work at three named client sites.
• Failure to report for duties and to attend during core work hours on 3^rd and 4^th October 2013.

The claimant brought a colleague to the meeting as invited. The company was represented by the Maintenance Support Manager, the claimant’s Line Manager and a HR assistant took notes.  The meeting took four and a half hours. He was not offered a break but sought four breaks during the time to retrieve documents from his van to rebut the allegations. He was not provided with any substantial description of the clients’ complaints. He was upset that his supervisor did not provide pertinent information which would have clarified some matters. The atmosphere was very aggressive and intense. The Support Manager repeated his questions until the claimant agreed with him, which he did eventually to finish the meeting.

The claimant refuted the allegations made against him. On a few occasions he was not provided with a job number and so could not complete the timesheet fully. He attached a sheet to these explaining why but these sheets were not produced in the meeting. On occasion he had to purchase parts, but the office gave the credit card number over the phone and so he believed the receipts were sent there. He failed to answer phone calls and text messages while driving, but responded when parked. He refuted that there was any issue with the quality of his work. On 3^rd October 2013 he finished work one hour early at a client premises and so spent the time completing paperwork. On 4^th October 2013 he was present at HQ on time, but no work was issued to him.

The claimant was upset by this meeting as hitherto he had believed he was doing a good job and had not received any complaints. He believed the company was looking to get rid of him.

A follow up meeting with the Maintenance Support Manager on 16^th October 2013 was brief and the claimant felt dismissed by him and did not like his demeanour.

A few days later he received an email from his line manager asking why he had been late three days in a row. The claimant was very upset by this. On two of those days he had been in the office and on time. On the third he was caught in traffic on the way to a client and had phoned the helpdesk and the client to convey this message. The client had no difficulty with this. His line manager phoned him and told him to make up the time by working through lunch which he did. He felt picked on and this tipped him over the edge. He phoned the helpdesk and said he was going home and would not be in the next day.

The following Monday he met with the HR Manager at a hotel. She gave him a letter outlining the outcome of the disciplinary meeting. The letter stated that no further action would be taken at that time and noted the claimant’s agreement on complying with various procedures. She apologised for the length of the disciplinary meeting and said it should only have taken an hour. She asked if he would meet with his line manager to clear things up which he agreed to. While the no further action was to be taken on the disciplinary hearing he felt it still implied he was wrong.

The claimant presented the HR Manager with his written grievances and agreed to resolve them informally. The HR Manager said she would study his document further and speak to management and clients. She said that she had had already spoken to clients about his work and the comments were all favourable.

The claimant had moved to Cork during his employment and spent weekends there. He departed at 4.30am on Monday mornings to arrive in the office in Swords at 8am. He had previously asked for part-time hours or a later start on Mondays, but this had been refused. The HR Manager agreed to a 9am start on Mondays at this meeting. He felt positive after this.

In addition to the disciplinary hearing the claimant had raised a number of issues in his document including:

• A comment made by his line manager to colleagues that the claimant ‘was not committed to his job’ when he could not work overtime hours due to living in Cork which had been repeated at an appraisal meeting and so was on his file.
• A new member of staff was told to watch him ‘like a hawk’.
• Delays in having his annual leave applications accepted.
• Not being offered any Cork jobs after expressing an interest.
• A new weekend on call rota being introduced without any notice to the claimant meaning he had to spend one in four weekends in Dublin instead of one in seven as previously.

He told the HR Manager that he could not continue to work with his line manager and the Maintenance Support Manager. The HR Manager suggested that he resolve his grievances informally which he agreed to.   He met his supervisor the following day in the company of the HR manager to resolve their differences. At that meeting he queried why his supervisor had not supported him during the disciplinary meeting.

The claimant was not satisfied with this meeting and decided to instigate a formal grievance complaint. He felt that the HR Manager’s attitude towards him changed after this. In her letter to him dated 25^th October 2013 she expressed her surprise that he was not satisfied with the outcome of the disciplinary process as no sanction had been brought against him. The letter also stated ‘if you wish, the company can commence disciplinary proceedings in relation to all of these issues, as if the meetings and agreements had not occurred.’ He received this letter while on sick leave and this precipitated his decision to resign his position. Following the grievance meeting he had been given small jobs to do, mainly in head office where he felt isolated and under constant surveillance. This led to him going on sick leave for work related stress.

The claimant gave notice and continued to engage in the grievance process even after the termination of his employment. However, he felt this was a whitewash as no witnesses were called. They said his work was poor which he fundamentally disagreed with. He appealed to the Managing Director who offered him his job back. The claimant accepted on the grounds that his grievances would be addressed. The Managing Director indicated by letter of 11^th February 2014 that he took this as a refusal. The claimant emailed on 19^th February to clarify that he had not refused, but he heard nothing further from the company. The claimant gave evidence of his loss.

Determination:

The claimant gave extensive evidence of isolation, bullying and harassment and an unpleasant work environment over a sustained period of time. The Tribunal fully accepts that the claimant was a truthful witness and that the treatment by the company caused a deterioration of his health which made it impossible for him to maintain his trust with the company and consequently he was fully justified in repudiating his contract of employment and the Tribunal finds he was constructively dismissed.

Accordingly, the Tribunal awards the claimant a total of €20,199.42 under the Unfair Dismissals Acts, 1977 to 2007. The total sum is comprised of nine weeks’ full pay at €577.00 being equivalent to €5,193.00 and 78 weeks’ pay at €192.39 (being the difference between his current rate of pay and his pay with the respondent company) being equivalent to €15,006.42.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)