EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Radek Hurt UD1696/2014
against
Advance Cleaners (Ireland) Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Wexford on 15th December 2015 and 18th February 2016
Representation:
Claimant: Mr Nigel D. Allen, Nigel D. Allen & Co, Solicitors, 3 Slaney Street, Wexford.
Respondent: Kirwan & Kirwan, Solicitors, 4 - 5 Cornmarket, Wexford
Background:
The claimant commenced work with the respondent on 30th June 2006 and his employment was terminated on 10th September 2014. It was the claimant’s case that his employment was terminated as a result of complaints and grievances made by him regarding the conditions of his employment and accordingly his termination was victimisation. It was the respondent’s case that the claimant’s employment was terminated because of his failure to obey a reasonable instruction.
Respondent’s case
K for the respondent told the Tribunal that she was the administration assistant in the contract section. She said there were 56 employees. They had on-going regular customers and they also dealt with one off jobs. They worked at various sites. At the meeting with the claimant on 9th September 2014 she took the minutes and was the note-taker.
JF, Day Works Manager for the respondent, said he dealt with the scheduling of day work, the workforce, management and invoicing. He said staff reported to HQ and were allocated their job for the day. He said they had a high standard as regards hygiene and sterilization etc. He said they have a grievance procedure in place in the company.
He told the Tribunal that on 26th August 2014 a cleaner was required for a day to work in a new store about to be opened in Wexford. He said “we were busy and needed somebody”. The claimant was informed of this job at about 7.45 a.m. to 7.50 a.m. The claimant told him he would not be left at a site as a prisoner meaning that he would be left there with no transport and had to wait until he was collected. JF said that the claimant said he needed transport to get to and from site. In the normal course of events he would be driven there and collected. By rescheduling, taking a cleaner from another job, the respondent got another cleaner to the store by 8.10 a.m. There was no other scheduled work for the claimant that day and he went home. He handed in a medical certificate and had booked holidays. There was no other contact with the claimant between 26th August and 9th September 2014 other than at the disciplinary meeting. JF told the Tribunal he was asked did he think it was a dismissal matter and he said it was but that he didn’t make the decision to dismiss.
In cross-examination, JF was questioned about the different conditions between day work and contract work. JF said the claimant moved to day-work because he felt that there may be more hours work but there wasn’t. He said that the claimant was unhappy about this and about the conditions of work. It was put to JF that the claimant had difficulties getting to sites and that the respondent was aware of this. Saggart, Mountmellick and Drinagh locations were given as examples. JF disputed this. It was put to JF that the claimant was brought to sites and remained there with no van. Difficulties with the new store such as no ability to leave in an emergency were put to JF. It was put to JF that the claimant didn’t trust the respondent any more regarding lifts. It was put to JF that the claimant was not paid for sick leave. It was put to JF that the claimant was suffering from work related stress and that he was on holiday until the disciplinary meeting on 9th September 2014.
JF was questioned about the job at premises in Drinagh where the claimant was left waiting for one hour before collection, similarly at premises in Rocklands and at Woulfe Tone Villas. JF said the claimant was paid for the time waiting as time was measured to the return time to HQ. It was put to JF that at premises at St Brendans, Rosslare and Oulart to which the claimant was sent the water was turned off and this caused difficulties for the claimant not least hygienic problems. This was disputed by JF as were the texts referred to. At the resumed date the texts were opened to the Tribunal.
It was put to JF that the outcome of the grievance procedure was a foregone conclusion and that this was supported by the statement in the report prepared on incident – “in line with company policy – did not attend on site”. JF was questioned about the grievances raised three or four times informally by the claimant.
JW, founder, chairman and managing director of the respondent told the Tribunal he was responsible for strategy and company ethic. He said he was a 90% shareholder and that PG was a 10% shareholder. He confirmed the evidence of the other witnesses for the respondent. He said that employees on contract work attended specific sites at set times but for employees on day work it was different. Day-work concerned emergency and urgent work that needed to be responded to. Flexibility was needed. He said that the claimant would have been aware of the type of work that day-work involved.
JW said he was told by JF that the claimant had refused to go to a job. He said we talked about it and he spoke to PG, the other shareholder in the respondent company. He said we needed to speak to the claimant as his refusal was totally unacceptable. He said it was a major issue, a major breach letting a client down. “We needed to deal with it”.
A disciplinary meeting was scheduled and in or about that time a list of grievances was e-mailed by the claimant to the respondent. JN said at the meeting the claimant was given every opportunity to elaborate why he didn’t go to the new store job on 26th August 2014. He said the claimant’s explanation was that “he wasn’t prepared to go where he would be captive”. JW said he found the claimant unrepentant. He said the claimant said he wasn’t prepared to work under those conditions going forward. At the end of the meeting the claimant was asked if he had anything further to say on any issues and he didn’t. After the meeting concluded JW said he discussed the matter with PG. He said the decision was ours, that’s our role and responsibility. He said it was clear that they could not continue to employ the claimant without providing the facilities he wanted going forward.
JW told the Tribunal that JF is the line manager. He said that most employees are brought to and from the sites in company vehicles. He said that the claimant drove in his own car many times to sites and that he did this for his own convenience; he was not asked by the respondent to do it. He said that when the claimant went to Saggart and Mountmellick he had somebody else with him or drove himself. He said the claimant wanted to use his own car and be paid for it; that is what he was angling for. He said the company had 5 vehicles so there was always adequate transport.
In cross-examination it was put to JW that the claimant was told “you either go with Peter or not at all”. It was put to him that the claimant had raised grievances 3 or 4 times informally. JW said all tended to centre around transport. The issue of Mr G the business consultant was raised and a document submitted by the claimant to Mr G. regarding the provision of water reservoirs.
Detailed examples of the state of some of the properties the claimant was required to clean were put to JW. An example of the claimant being required to sweep out the leaves from a site which was unsafe because of an electricity transformer was put to JW.
It was put to JW that he carried out no risk assessments of the sites that the claimant had to go to and that hygiene for the claimant was difficult because of lack of water. JW said on day works you got short notice and that there were emergency situations and it was not possible to survey the sites in advance. He said regarding the need to communicate the designated van drivers had phones and that the claimant was not treated any differently to other employees.
Difficulties with facilities and facilities to eat lunch were put to JW but JW said these difficulties applied to all employees on day works.
It was put to JW that he had his mind made up before the disciplinary hearing. This was disputed. He was questioned regarding the fact that the claimant was certified unfit to work two weeks before the disciplinary and that the respondent had written to the claimant’s G.P.
Claimant’s case
The claimant in evidence said that he started work with the respondent on 30th June 2009 and finished on 10th September 2014. His gross weekly wage was €600. He worked 39/40 hours per week but when on contract work he worked 26/28 hours per week and drove his own car for which he was paid €8 per week which he pointed out was very little. He was from Czechoslovakia and had been in Ireland for 15 years. Before coming to work for the respondent he worked for another company.
He said he had a problem getting back from sites so he used his own car. He was hoping to get a van from the respondent. He did indoor and outdoor work and decided himself what equipment he needed for each job. The claimant gave examples such as St. Brendan’s Rosslare 26/27 July and Mayview, Oulart in 27/28 August 2012 where he had difficulties regarding the respondent collecting him from sites when jobs were completed. He said some of these locations were away from civilisation, it was outside work and he had no keys to access the houses.
The claimant gave examples of lack of hygiene facilities at various sites. He said at some locations he could not find his belongings which had been left in the respondent van and at some sites he was not allowed use staff facilities and had to eat outside. He gave an example of the difficulties when he was sent to clean a halting site on 2 or 3 occasions and when on 13th September 2012 he was sent to Wolfe Tone Villas and Nutricia the same day with inadequate hygiene facilities available to him before going to the second location.
He outlined the incident when he said he was sent to sweep leaves from a transformer and told the Tribunal “for me there was a problem”.
The claimant said he supplied his own equipment such as mopping unit, sweeping brush and dust pans.
He said when he complained to the respondent he was told “give me some time and you’ll see some changes”. He said he completed the survey forms for Mr G. because he was requested by the respondent to do so.
On 26th August 2014 the claimant outlined for the Tribunal how he arrived on site and was told to go to the new store. He said he asked “am I going to be left alone on site and that he “did not want to find himself in that situation”. He said he told the respondent “I will bring my own car” but that he needed “money for fuel”. He said there was no place to eat or chance to get home if he needed to. He said he needed to “use own car to feel safe” because his son was sick.
He submitted a grievance letter on 26th August 2014. He said he “knew the company wasn’t going to do anything about it” and that left him “disappointed”. He said he raised the issues he had on a few occasions. He said at the meeting “I had an opportunity to tell them what had happened but I didn’t expect to be dismissed”. He had hoped there would be changes.
In cross-examination the claimant accepted that he had a meeting on 23rd September 2011 and that he requested additional hours and signed new terms. It was put to him that he knew the other employees and that he was aware of how the day works operated. The claimant disputed this. He accepted that he had started on a probationary period and was then made permanent and said that he was fairly happy with the job at the beginning.
It was put to the claimant that there were mops and buckets etc. in the respondent’s store but the claimant said not always.
It was put to the claimant that he was not required to go into the area beside the electrical transformer.
On questioning the claimant said he needed to have a private car because he “had to pick his child up from crèche” and that 4.30 was finishing time for him.
He said he “believed that the disciplinary would end up in my favour”. However, he also said he told the respondent “if such conditions were not met in the future I would not be able to go to work”.
Submissions
In submissions the respondent said that the claimant had failed to obey a reasonable order and that he not only did not contest this but said he will continue unless changes were made and that this is a very unique aspect to this case. The respondent company could not provide the conditions the claimant wanted and therefore the dismissal was entirely reasonable and comes squarely within the statutory framework and wasn’t an unfair dismissal.
In submissions the claimant said the incident on the 26th August 2014 was the culmination of events. The claimant had been complaining for health, safety and welfare at work reasons. He had raised them and did not get anywhere. It was the tipping point for the claimant. That is very clear. The claimant got fed up with the employer – you either do it our way or go home. Nobody engaged to try and sort it out. There wasn’t a fair hearing. A decision was made that this was a breach of discipline. The respondent wasn’t going to listen to see whether the claimant’s refusal was reasonable. Importantly, there was no appeal. It is clear from the reasons set out in the minutes that a major factor was the claimant’s history of complaining. It was submitted that the dismissal was disproportionate and that no efforts to engage with the claimant were made by the respondent.
Determination:
Having considered the evidence adduced at the hearings and the submissions the Tribunal finds that some of the conditions of the claimant’s job troubled him. However, the Tribunal finds that these conditions were more to do with the nature of the job rather than any failing on the part of the respondent.
The Tribunal finds that the reason for the dismissal of the claimant was his failure to obey a reasonable order, viz. his refusal to attend at the new store, and his indication at the disciplinary hearing that unless his requirements were met he would not be working for the respondent. The Tribunal further finds, taking into account the nature of the business, that it was not possible for the respondent to satisfy these requirements adequately or at all. In the circumstances the Tribunal finds that the respondent was entitled to dismiss the claimant.
The Tribunal notes the lack of an appeal to the decision to dismiss the claimant. S.I. 146/2000 provides that one of the “essential elements of any procedure for dealing with grievance and disciplinary issues” is that “an internal appeal mechanism is available”. However, the Tribunal finds that the lack of appeal in the particular circumstances of the instant case is not fatal, these particular circumstances being:-
- that the conduct complained of was not disputed by the claimant, save for the fact that he would have gone to the new store had he been allowed to use his own vehicle for transport to the site and been paid mileage;
- the indication by the claimant to the respondent of the conditions under which he would continue to work for the respondent and which the Tribunal finds is tantamount to a resignation by the claimant;
- the inability of the respondent to satisfy the claimant’s conditions precedent to his continuing to work for the respondent.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)