UD6/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD6/2015

CLAIM OF:                                                                                                            

Jason Cunniffe                                                                                                          

      -Claimant  

against

C & F Tooling Limited

      -Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms C. Egan B.L.

Members:        Mr. T. Gill

                        Ms H. Murphy

heard this claim at Galway on 22nd April 2016 and 30th June 2016

Representation:

Claimant:         Mark Killilea, Purdy Fitzgerald Solicitors, Kiltartan House, Forster Street, Galway

Respondent:    Mr Tom Harrington, C&F Green Energy Limited, Cashla, Athenry, Co. Galway

Background:

The Respondent in this case is as above and referred to as the Respondent or as CFT. There are related companies known as, CF, GE and CKT, which are part of the CF group of companies. GE manufacture small and medium sized wind turbines for the production of wind energy for farms, homes and business.

The Respondent supplies and monitors these turbines remotely and they service and repair the turbines. The Claimant’s job was to remotely monitor the turbines and to provide customer service.

Respondent’s case:

The Tribunal heard evidence from AF who outlined the history of the company and the relationship of the company to other companies.

She told the Tribunal that she was the Service Manager for approximately three years. She is a registered qualified engineer, and was the Claimant’s Supervisor. The Claimant’s job entailed monitoring Wind Turbines (WTs) remotely by computer and also customer service duties. The witness outlined the Respondent’s function entailing the monitoring of the turbines and providing remote solving of faults and remote technical assistance. If a fault cannot be solved remotely, the problem is referred to the electronic engineers’ maintenance team, who manage repairs and provide customer care.

The witness stated that when the claimant started working from home there were only 100 turbines. The servicing and monitoring of the WTS is a 24 hour a day 7 day a week job. The company has customers in Ireland, in the UK and internationally. The WTS are also serviced annually.

The witness opened photographs of the monitoring room to the Tribunal.   There are a number of screens in the room to provide live data as to the status of the WTs and of the weather conditions Also phone lines for customer service. The data is used by them to provide service if needed and also if wind speeds are too high in a location then they turn off the WTs.

The employees engaged in monitoring work a twelve hour shift and during the day two people occupy this shift. The Claimant never worked in the monitor room.  

The witness explained that they were constantly trying to improve the customer service and that their customer numbers were increasing and that the Claimant was the only person working from home. The Claimant did not attend the monitor centre and he did not attend training.

The witness gave evidence of the necessity of face to face communication between employees for the day to day running of the service department, which relies on team work. She emphasised the need for flexibility and the need to keep up with developments and changes in real time, and the necessity for immediate access to the engineers. She gave an example of severe weather conditions where staff had to “blanket turn off turbines” or “individually”, for safety reasons.

The witness explained that it was imperative that the Claimant be on site, as it was essential that the team would be operating “on the same page”.

The witness stated that they hired somebody after the Claimant was gone from the employment. However this was part of re-structuring hours, i.e. to have the hours worked in compliance with legislation.

An e-mail dated 18^th of September 2014 that the witness sent to the Claimant was opened to the Tribunal:

“Starting form Monday 22/9/14 all your shift hours will be completed in C&F Green Energy service department.

    Shift hours as follows

• Friday               7.00pm – 7.00am
• Saturday          7.00pm – 7.00am
• Sunday            7.00pm – 7.00am
• Monday           7.00pm – 7.00am
•  

If you have any queries, my contact number is xxx xxxxxxx”

She had spoken to the Claimant prior to the e-mail regarding the above.

An e-mail dated 18^th of September 2014 the Claimant replied to the witness was opened to the Tribunal:

“I am being told that I have to start back into the office on Monday evening the 22/09/14. This is contrary to my agreement to working nights for C and F Green Energy. On top of that I cannot possible do this at this time, because of my wife's health, she is very immobile after a very serious accident she had at work over a year and a half ago, and she has chronic back pain every day since. She has limited movement and yes some days are good but mostly las bad days. Luckily I was able to look after her, because of my working at home, all thanks to you. Yet despite everything, I have done my job perfectly despite any circumstances. Now all that is going to stop, because I assume someone did not tell me I could not do 14hrs as I have always done. If anyone pick up the phone and told me that I could only now work 5 days per week 12hrs per day (which I have always done 5 days 14hrs since the day a started in C&F), it would have been done.

We have now only one income coming in to the house having to pay mortgages, collage fees, food, etc. so I tried and do as many hours as I possibly can. This has not been an issue to date. Doing my job here has been a godsend, yet my work has never been compromised. By forcing me back with such short notice it feels like constructive dismissal, because under my current circumstance it cannot be done. On top of having my work hours cut drastically, my agreed working conditions are being changed without any agreement or consultation, never mind adequate notice. Because I cannot come in, so I am being forced out of my job. At the very start of me doing the night shift, I told you that the only way I would do nights was at home and was agreed upon. I have to date done that perfectly

Plus being singled out and having my normal work week cut by an entire day is unacceptable after 9 years of service with C&F.

I am hoping this can be resolved amicably without having to resort to third party intervention.

I feel that this is a very sad situation considering.”

The witness denied that they were singling anyone out. She stated that she was surprised at the suggestion.

An e-mail dated 18^th of September 2014 that the witness sent to the Claimant in reply was opened to the Tribunal:

“I confirm that I have received your e-mail. I appreciate your concerns in relation to my previous e-mail. I would like to arrange a meeting in order to discuss this matter with you further. I trust we will be able to resolve this issue without the need of a third party.

It is now in everyone’s best interest that this matter is resolved as soon as possible, so I suggest we meet …..

The company has recently hired a HR manager (PMcD) and I think it’d be a good idea for him to attend this meeting too.

Please confirm that you will be able to attend.”

The Claimant sent an e-mail in reply to say that he could not attend that particular meeting.

The witness explained that she left the matter with HR to deal with. She did not have any other contact with the Claimant between 18^th of September 2014 and 2^nd of October 2014. Although the Claimant did send an e-mail to her dated 2^nd of October 2014, but the e-mail was not in reply to the previous emails that she had sent.

The e-mail of 2^nd of October 2014 was opened to the Tribunal.   The witness was surprised about the whole situation and that the Claimant “was not going to change.”

The next contact she had was to take minutes of a meeting of 23^rd of October 2014. PMcD of HR was at the meeting together with the Claimant and EC and the witness.  

Regarding the meeting the witness explained when asked to clarify number of points:

-          the Claimant was given every opportunity at the meeting.

-          PMcD was not aggressive nor extremely aggressive or at all.

-          the Claimant was given ample opportunity to put his position forward.

-          PMcD did not put words into the Claimant’s mouth.

The witness stated that the Claimant was adamant that he did not want to work in the premises of the Respondent.

The witness denied the allegation that the meeting was contrived to “get rid of the Claimant”.

The witness stated that the Claimant ceased working, he had not been replaced at short notice because there was a staff shortage.

The Tribunal heard evidence from EC, General Manager and AF’s Supervisor. He explained that the purpose built monitoring room was built in 2014. He himself commenced as Foreman in September 2014. The Claimant was already in the employment of the Respondent.   Prior to the new monitoring area, the monitoring was not as accurate or as safe as it is currently.

The witness stated that things were changing rapidly. In 2013 and 2014, systems were redesigned and improved, necessitating on-going staff training. However, the Claimant refused to participate in any training. He stated that they needed the Claimant o work with them “in-house” and to “get everyone on the same page”. The witness had never seen the Claimant on the premises, but believed that he called to the centre every few months. He stated that he had telephoned the Claimant on a number of occasions requesting his attendance as he was needed because of his experience, but that the Claimant had refused to come in. The witness asserted that dialogue between night shift staff and day shift staff was essential for the efficient and safe management of operations.

Regarding the Claimant working from home, the witness stated that he would be concerned that the Claimant was using just one screen to monitor the systems, where safety would be a major issue and where elements change at “the flick of a switch”. Furthermore, he stated the staff needed to familiarise with up to date software.

The Tribunal heard evidence from MO’H. She explained that she dealt with HR matters as a HR generalist. She had taken leave and did not return until August 2014. (The Claimant ceased employment in October 2014). The witness confirmed that the HR person at the time, who was PMcD, joined the company in August 2014 but that he left in October 2015.

PMcD gave evidence. He explained that he had worked for the Respondent company as their HR Manager from the 7^th or 8^th of September 2014 until his contract expired in October 2015. During the second or third week of his employment AF informed him of the situation with the Claimant and he was asked to “become involved”.

On the 1^st of October 2014 PMcD contacted the Claimant to invite him to a face to face meeting on the 3^rd of October 2014. He explained that the reason for the meeting was to discuss the fact that the company could no longer support his working from home and was looking to come to an agreement over how and when the Claimant would transition back to working on site. The Claimant agreed to attend. However the Claimant sent an email to AF the following day to state his solicitor wanted a written statement regarding the respondent’s request for the Claimant to return to working on site and was not attending the meeting scheduled for the following day. PMcD received this email from AF the following day.

On the 7^th of October 2014 PMcD emailed and wrote to the Claimant with a written statement from the respondent giving the reasons why the Claimant was required to return to work on site and also to request the Claimant to attend a meeting on the 10^th October. The Claimant replied on the 9^th of October stating his position had remained unchanged. He did not accept the changes to his contract and he would not attend the meeting. The Claimant also requested two further pieces of information regarding who had initiated the change and the nature of the meeting. PMcD replied outlining the company’s response to the additional requests, reiterating the reasonable nature of the Respondent’s requests and highlighting that if the Claimant continued to fail to co-operate the Respondent would have no choice but to invoke the disciplinary procedure up to and including dismissal. The Claimant replied refusing to attend the proposed meeting on the 10^th stating “do whatever you need to do.”

On the 15^th of October 2014 PMcD wrote to the Claimant inviting him to another meeting. He replied the following day stating that he could not attend as he had a prior meeting with his solicitor. PMcD replied requesting an alternative date. There was no response.

The Claimant’s solicitor wrote to PMcD the following day seeking an adjournment of the meeting due to there being less than 24 hour notice. The solicitor also spoke of the Claimant in respect of “grave concerns as to his well being and his fitness to attend…” PMcD replied rescheduling the meeting for the 21^st of October. He also highlighted than the Claimant was given more than 24 hours notice and stated that if the Claimant was unfit to attend the meeting he would be no longer suspended with pay.

PMcD told the Tribunal that on Monday the 20^th of October he received a fax dated the 17^th of October 2014 from the Claimant’s solicitor stating the claimant would attend a meeting with the company and requested it would not be disciplinary meeting. He also requested the meeting be held on the 22^nd or the 23^rd of October in order for his solicitor to attend with him. Following further correspondence from the Claimant requesting a postponement due to the nature of a “very serious matter” that had come to light, the meeting was rescheduled for the 23^rd of October 2014.

On the 22^nd of October the Claimant emailed PMcD stating he would attend the meeting but his solicitor would not be attending.

On the 23^rd of October the Claimant attended the meeting with his wife. (The minutes of this meeting were read into the record). The Claimant agreed to reduce his working hours but clearly stated that he “would not budge” in relation to ceasing his working from home arrangement. PMcD told the Tribunal that he asked the Claimant on a number of occasions but to no avail. He felt there was no point in continuing the meeting as it was clear the Claimant was not going to change his mind.

The following day PMcD wrote to the Claimant stating “The company takes your refusal to complete the work from our site as a statement of your resignation, as you were very clear that you would not consider doing the work from our service centre.” The Claimant’s resignation was effective from the 25^th of October 2014.

On the 30^th of October 2014 the Claimant’s solicitor wrote to PMcD stating the Claimant had agreed to work on site in the meeting of the 24^th of October and that he, had not been afforded an “opportunity to advance his position” and the meeting was “a sham”, accusing PMcD of aggressive behaviour. The solicitor retracted and denied any resignation and threatened the company with a High Court action.

PMcD told the Tribunal he replied the following day stating the Claimant had not agreed to return to work on site and corrected / denied as not true a number of allegations stated in the solicitor’s letter. The Claimant’s solicitor replied again stating his client had not resigned.

On the 5^th of November 2014 PMcD wrote to the Claimant’s solicitor stating the company’s position remained the same, the Claimant had resigned.

On the 18^th of December 2014 the Claimant’s solicitor wrote to PMcD asking whether there was an appeals procedure in relation to the company’s decision to terminate his client’s employment.

PMcD replied on the 22^nd of December 2014 reiterating the company’s position.

Under cross-examination PMcD stated he had been in no way aggressive at the meeting of the 24^th of October 2014 and felt the Respondent had been more than fair in dealing with the Claimant in respect of the issue.

Claimant’s Case:

The Claimant gave evidence. He explained that he was originally employed as a Security Guard with the Respondent company. Two years, approximately, from the termination of his employment the Managing Director (MD) approached him asking him would he be interested in the role of monitoring WT’s, which would result in a substantial increase in his salary.

The Claimant agreed to take the job. At first the Claimant was located on site. An issue arose regarding night work. MD asked would he do it. The Claimant agreed to do it as long as he could work from home. The Claimant explained his wife worked nights and he had to care for their children. The Claimant told the Tribunal that MD hinted it would only be on a temporary basis but the Claimant told MD that he would not agree to do the job if it was temporary.

The Claimant told the Tribunal that he was working long hours from home. On the 16^th of September EC contacted him regarding his hours of work and said the company wanted him, the Claimant, to return to work on site. He sought advice regarding the issues as it was a “bolt out of the blue”. There had been no previous issues raised. Correspondence then crossed between the Claimant and the respondent company.

The Claimant told the Tribunal that he attended the disciplinary meeting with his wife. He had agreed to reduce his hours to 48 hours per week but said PMcD did not give him any opportunity to give his side of the story. He stated that PMcD was agitated, putting his hands in the air and slamming books on the table saying “what’s the point of the meeting.”

The Claimant told the Tribunal that he never resigned his position.

The Claimant gave evidence of the efforts he made to mitigate his loss of earnings since the termination of his employment.

Under cross-examination he said he was never told the period of time given to him to carry out his duties from home was extended because of his wife’s ill health. When put to him, he denied that his solicitor had advised him to request a severance package from the Respondent company.

The Claimant’s wife gave evidence of her attendance with her husband at the meeting with PMcD on the 23^rd of October 2014. She stated that PMcD was agitated at the meeting, slamming books on the table and not giving her husband any chance to state his case.

Determination:

The Tribunal has carefully considered all the evidence adduced and submissions in this matter. There was a conflict of evidence in the case, the evidence of the Claimant being diametrically opposed to that of the Respondent.

The Respondent’s business had grown rapidly in the manufacturing, supplying and monitoring of wind turbines for farms, homes and business. It has an international customer base.

It was incumbent on the Respondent that employees engaged in the safe operations of wind turbines would operate from the purpose built command control centre at the Respondent’s premises. The evolving nature of the technology and business processes, and the sheer scale of the operation, necessitated a work force working from a central control centre.

The Claimant was the only employee working from home. The Respondent behaved reasonably at all times in requesting the Claimant to work from the central control centre, in line with every other employee. It afforded him every opportunity on numerous occasions to accommodate his transition from his home to the Respondent’s premises.

The Claimant failed, and persistently refused to engage with the Respondent in its efforts to facilitate him.

The Tribunal finds that the Claimant was not unfairly dismissed. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)