EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD998/2014
APPEAL OF:
Gary Ryan -Appellant
against the recommendation of the Rights Commissioner in the case of:
Gary Ryan -Appellant
-v-
Synergy Security Solutions Limited -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairmant: Ms N. O'Carroll-Kelly BL
Members: Mr. J. O'Neill
Mr. N. Dowling
heard this appeal at Dublin on 18th August 2015
Representation:
Appellant: Mr. Hugh Hegarty, Siptu, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr. Sean Cullinane, Enterprise House, Mayfield Business Park, Old Youghal Road, Cork
Background:
This case is before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner ref: r-141556-ud-13, under the above Unfair Dismissals Acts, 1977 to 2007. The employer is a security company and the employee worked as a security guard.
Respondent’s case:
The Tribunal heard evidence from a manager from the Respondent. He explained that he received a report from an employee (KC) tht the Claimant had been aggressive towards him during a phone call. A copy of the report was opened to the Tribunal. The witness investigated the matter and met with the Claimant. The Claimant admitted to him that he had said the words described. The Claimant confirmed that KC was not aggressive. He told the Claimant that the matter was serious and that he was passing the matter on to Human resource department.
In cross-examination the witness confirmed that at the meeting he had with the Claimant the Claimant told him that he apologised to KC. The witness agreed that he had not supplied the Claimant with a copy of the report.
The witness confirmed to the Tribunal that the person who dismissed the Claimant was not present at the hearing. He also confirmed that the person who heard the Claimant’s appeal of the dismissal was not present.
The witness when asked explained that there was no history of antagonism between the Claimant and KC. The witness explained that he did not feel that the Claimant grasped the seriousness of the situation.
Claimant’s case:
The Tribunal heard evidence from the Claimant. He explained that KC had “an attitude towards him for a few weeks” and that he “just got sick of it”. He explained to the Tribunal his personal circumstances at the time. He accepted that he used the words said but he would not have carried out a threat or assault KC. It was normal to use earthy language to another officer but not usual to threaten other officers. He also explained that he apologised to KC. He felt that he was wrong to say what he said to KC even though he did not mean what he had said.
Determination:
The Claimant commenced his employment in 2005 with a security firm. In 2013 he transferred to the Respondent (Transfer of Undertakings).
An incident took place on 03rd September 2013 when the Claimant used inappropriate language to another employee. The language used was of a threatening nature. The Claimant accepted that he acted inappropriately and he apologised to the injured party. The Respondent accepted that this isolated incident was completely out of character for the Claimant. He had no previous disciplinary sanctions and was described as “an excellent employee”.
No evidence was adduced in relation to the disciplinary hearing or of the appeal hearing and therefore the Respondent has not satisfied its obligation under the Act.
The Tribunal find that the sanction imposed in all of the circumstances of this case was disproportionate.
The Tribunal find that the Claimant was unfairly dismissed and awards the Claimant re-instatement under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)