UD507/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD507/2015

CLAIM OF:                                                                                      

Luke Kearns                         

against

Owen O'Driscoll t/a Subway

and

Owen O’Driscoll

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr E. Murray

Members:     Ms M. Sweeney

                     Ms. P. Coyle

heard this claim in Cork on 17 June 2016 and 9 November 2016

Representation:

Claimant :   Mr. Kieran McCarthy, Kieran McCarthy & Company, Solicitors, Floor 3B, 6 Lapps Quay, Cork

Respondent : No legal representation

The determination of the Tribunal was as follows:

Respondent’s Case

The respondent was the owner of a number of franchised fast food outlets operating in Cork. Under his franchise agreement the respondent was obliged to maintain certain minimum standards of hygiene and safe food preparation and was obliged to strictly comply with the terms of his franchise agreement.

The respondent employed the claimant as a sandwich maker in December 2012, initially working in the Douglas outlet but in June 2014 he was promoted to the position of trainee manager in the South Main Street branch. During the course of the claimant’s employment in that branch the franchise received a number of bad appraisals by the franchisor. It reached the point that there was a risk that the franchisee would in fact have his franchise agreement terminated and indeed he received a Notice of Termination from the franchisor.

He endeavoured to engage with the claimant in relation to the issues. Generally speaking the claimant worked at night-time and the respondent gave evidence that he himself worked during the day. Communication generally seemed to be by text message. Over time he gave evidence that he sought to confront the claimant in relation to these issues and effectively demoted the claimant to night-manager of the South Main Street branch. He gave evidence that he became aware that the claimant had a second job, a day job with a retail outlet in the City. By March 2015 he said that communications between the parties had effectively broken down.

The respondent tried to arrange a disciplinary meeting with the claimant but the claimant advised him that he was unable to attend. Inter alia, the claimant produced a medical certificate as a basis for non-attendance. On the 20^th of March 2015 the respondent terminated the claimant’s employment. On the same day the claimant attended at the respondent’s office in Douglas in Cork and removed documentation from the office which the respondent believes was the claimant’s entire employment file. The respondent said that he was unable to produce copies of written warnings that he had given the claimant because of the fact that the paperwork had been removed. The respondent made a complaint to An Garda Síochana in respect of the removal of the file.

The respondent felt that he had given the claimant every opportunity to improve and that he had sought to communicate with him but the claimant had failed to adequately respond. He felt that he had given him too many chances and that he was out of his depth insofar as the work was concerned. He felt that the claimant was overworked having regard to the fact that he had a second source of employment.

He conceded that communication was largely by telephone and he did not give the claimant a formal notification advising him of the disciplinary meeting or that it could lead to his dismissal.

The claimant’s line manager gave evidence on behalf of the respondent. She claimed that the claimant was a “nice guy” but that he was out of his depth and was unable to cope with the evaluations. He had promised to improve but hadn’t done. He would not answer the phone. His shift generally ended at 4.00 a.m. and she used to try and contact him during the day. The respondent summoned him for a number of meetings but he didn’t attend them. She conceded that she did not consider it her place to warn the claimant that his job might be in jeopardy. She acknowledge that he had been turning up for his shift but that he had not made an adequate effort to engage with the respondent.

Claimant’s Case

The claimant gave evidence that after his dismissal he had gone to the respondent’s office for his contract or the company handbook as he had never been given a copy of either. Although he acknowledges that he went to the respondent’s office and removed a handbook he denied removing any other documentation and denied ever getting a written warning. Under cross-examination he was referred to CCTV which suggests that he had been in the office for over twenty minutes. No better explanation was given by the claimant. He said that communications from his employer were all by telephone and that when he was working at night-time that it was difficult for him to take calls. He never received a formal warning from his employer that dismissal was being considered.

Determination:

The Tribunal finds that the claimant attended at the respondent’s offices without his authority or consent, this however was not germane to the dismissal. The dismissal had in fact occurred prior to this event. The Tribunal finds that the claimant was not adequately warned of the possibility that his employment was in danger of being terminated. Communication was largely by text message or telephone. Where a person’s employment is at risk there is an onus on the employer to make it absolutely clear that this is the case and ideally by letter. The Tribunal are not satisfied that adequate steps were taken to alert the claimant as to what the true situation was.

In the circumstances the Tribunal unanimously finds that the claimant was unfairly dismissed.

The Tribunal takes the view that there was a considerable contribution on the claimant’s part to his dismissal and that he could have made a better effort to communicate with his line-manager in particular. Having regard to all of the foregoing and to the contribution made by the claimant the Tribunal is unanimously of the view that compensation is the appropriate remedy and makes an award of €5000.00 (five thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)