EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD508/2015
CLAIM OF:
Muhammad Naeem Shahbaz
-claimant
against
KPA (Ballinalack) Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr P. Pierson
Ms M. Mulcahy
heard this claim at Mullingar on 1st February 2016 and 9th May 2016
Representation:
Claimant: In person
Respondent: Mr Conor Quinn, John J Quinn & Company, Solicitors, Earl Street, Longford
Background:
Dismissal as a fact was in dispute between the parties.
It is the respondent’s case that the claimant was suspended on full pay pending an investigation and that he never returned to work. He refused to collect his payment, sought his P45 and took his case for unfair dismissal (he also has an Equality case pending for discrimination).
It is the claimant’s case that he was dismissed from the employment.
Summary of evidence:
A translator was provided by the Tribunal for the hearing.
The claimant told the Tribunal that he worked as a fast food assistant. He felt he was hassled by some of the girls at his work place. One of their boyfriends threatened him. He explained the situation to the Manager but nothing happened. He was again accosted in the car park and went to the Garda station the next day to complain and made a statement. The claimant told the Tribunal that he submitted a written complaint to the respondent, he did not have a copy and the respondent denied ever having received it.
Under cross examination the claimant said he had a contract of employment. He also acknowledged that there was a hand book that had a section dealing with bullying and harassment but he did not follow the procedure as set down as he felt nothing would be done. Asked if he was approached by his Manager and spoken to for messaging female members of staff, he agreed that he did. Asked if he already had received warnings for inappropriate contact with the female staff, the claimant said “no, never”.
The claimant subpoenaed a number of witnesses to give evidence on the second day of hearing.
It was the evidence of MC, employee of the respondent company, that she received a complaint that the claimant had obtained CF’s telephone number and was contacting her via text message. CF was upset by this and MC advised her to report the matter to the Manager. MC also raised the matter with the Manager.
KE, the owner of the respondent business, gave evidence that he received a complaint from CF’s aunt regarding this matter. He instructed the Manager to investigate.
The Manager gave evidence that KE informed him by telephone on the 16th April 2015 that he was to suspend the claimant with pay pending an investigation. The Manager informed the claimant of this when he met him outside the front of the premises that same day. He said to the claimant that he was engaging in “the same behaviour again” by texting CF and that a complaint was received and that CF was terrified to face him. When he told the claimant that he was suspended for one week on full pay pending an investigation the claimant verbally abused him and was aggressive towards him before departing the premises.
The claimant subsequently emailed the head office informing them he had been dismissed. The Manager also received a text message from the claimant seeking his P45. The Manager refuted that he had dismissed the claimant.
The Manager subsequently conducted an investigation which involved taking verbal statements from CF, CF’s aunt and MC. The investigation was held over a number of weeks due to the different shifts worked by staff. He concluded the investigation in or around early May 2015. Prior to concluding the investigation he emailed the claimant on the 6th May 2015 stating that following his recent suspension from duties regarding complaints received; the Manager wished to meet with him to discuss the investigation which was conducted. The Manager consulted with the owner KE on the matter and KE agreed that if the claimant gave some reassurance that he would not repeat the behaviour he could be returned to work. The Manager thought that once he received this written assurance from the claimant regarding future behaviour, he would issue the claimant with a written warning and the claimant would return to work. The claimant was placed on the roster from the 11th May 2015.
However, the claimant refused to engage. He replied by email dated the 7th May 2015 asking the Manager to stop contacting him as he had “fired” the claimant.
As the claimant had moved from his residence at that time the manager did not have an address for the claimant. It was put to the manager in cross-examination that he had failed to take a statement from the claimant. At the time of the investigation he had taken verbal statements only. When he later realised he should have taken them in writing he did so in August 2015. In reply to questions from the Tribunal, he stated that he did not think to scan the written statements to the claimant when he obtained them.
The Manager gave evidence that he issued a previous verbal warning to the claimant for similar conduct. The warning was given at a meeting attended by the complainant AJ and the Assistant Store Manager. During cross-examination the manager accepted that he had not documented the verbal warning. The Manager refuted receiving complaints in the past from the claimant regarding AJ’s partner.
AJ gave evidence that she had previously complained about the claimant when he obtained her telephone number and contacted her “all the time” over a six-month period. Although the contact was anonymous she suspected it was the claimant who was contacting her and she complained to the Manager about him. It was her evidence that the Manager issued the claimant with a verbal warning for the behaviour.
The Assistant Shop Manager was present at the meeting also and she recalled the Manager telling the claimant to stop contacting AJ although she did not recall the word “warning” being used at that meeting.
The claimant subpoenaed GK who is an employee of the respondent company and who has remained in intermittent contact with the claimant since his employment ended. GK’s evidence was that he enquired from the Manager on the 16th April 2015 what had happened with the claimant. The Manager informed him that the claimant was dismissed for engaging in the same sort of behaviour as before with female colleagues. However, the following day the Manager told GK that the claimant was suspended.
The Manager refuted in evidence that he told GK he had dismissed the claimant on the 16th April 2015. He told GK that the claimant was in trouble once again for the same behaviour as with AJ and if it continued his employment would be terminated with due process.
MS was subpoenaed by the claimant and he confirmed in evidence he had given CF’s telephone number to the claimant. However, he was unaware of the claimant’s intentions for the telephone number. He was not disciplined for giving the telephone number to the claimant. The claimant had told him the respondent company dismissed him.
CM gave evidence that the claimant sought his P45 from her in April 2015 on the basis that he had been dismissed. Having checked with management she informed the claimant that he was on suspension and was therefore still an employee.
Determination:
An incident arose on the 16th day of April when the claimant was alleged to have harassed a co-worker, CF. The allegation was that the claimant was contacting CF by text and that CF was very upset by this and made a complaint to the Manager. The Manager suspended the claimant on full pay pending an investigation.
The claimant gave evidence that he was dismissed on the 16th April 2015 and this was supported by the evidence of GK. This was disputed by the Manager who gave evidence that he had only suspended the claimant.
There was an exchange of emails in early May 2015. On the 7th May 2015 the claimant wrote to the Manager claiming that he had been dismissed and requesting his P45. On that same day the Manager responded and the Tribunal is satisfied that the respondent made it clear that the claimant was not dismissed but suspended on full pay while the matter was being investigated.
The claimant refused to engage in the investigatory process but instead requested his P45. The company did not provide this and had not provided it at the date of this hearing. The Tribunal is critical of the fact that the respondent did not make sufficient effort to contact the claimant in the period following the suspension. Having said that, the claimant did not discharge the onus of proof that it was reasonable for him to resign having regard to all the circumstances.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)