UD922/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. 

UD922/2015

CLAIM OF:                                                                                                              

Val Groarke                               

against

Right Of Place Second Chance Limited

Under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr K. Buckley

Members:     Mr J. Hennessy

                     Ms. P. Doyle

heard this claim at Cork on 30th August 2016

Representation:

Claimant:

             Ms Ellen Lynef, Eamon Murray & Co, Solicitors, 6-7 Sheares Street, Cork

Respondent:

            Micheál Walsh. Right Of Place Second Chance Limited, 15 Parnell Street, Waterford

Respondent’s case:

The respondent is a not-for-profit organisation which is mainly funded by the H.S.E. and the claimant was employed as an Out Reach Worker from 1^st March 2011 until he was dismissed on 24^th March 2015. Prior to being a paid employee of the respondent the claimant had worked there in a voluntary capacity since it’s foundation in 2001.

In May 2014 the respondent was notified that they must vacate the premises in which the claimant was employed as the property was to be sold.

It was the respondent’s position that the claimant was instructed to remove any property belonging to the respondent from the premises before vacating the office. However a complaint was received from the landlord that the office had been cleared of everything including items belonging to the landlord.

The 1^st witness for the respondent (MW) met with the claimant and it was agreed that the items not belonging to the respondent would be returned within 2-3 weeks. These items were not returned within the agreed time frame but were returned by 6^th October 2014. However a glass table which had been removed was not returned and it transpired that this had been sold by a third party who had been entrusted with it’s safe-keeping by the claimant. The claimant offered to pay for this table.

A disciplinary meeting was held on 10^th February 2015 at which the claimant was present and represented by his solicitor. The 1^st witness was also present but stepped aside in favour of his son (MWJ), who is also a director of the respondent, when requested to do so by the claimant.

MWJ concluded that the claimant was guilty of gross misconduct and that he had no alternative but to dismiss the claimant. A meeting was held on 24^th March 2015 at which the claimant was informed of his dismissal with immediate effect and his right to appeal. MWJ believed that he had followed correct procedures in reaching his decision without going through the steps outlined in the respondent’s disciplinary procedures. He felt that what the claimant had done amounted to gross misconduct and merited summary dismissal.

The witnesses for the respondent confirmed that the claimant had continued to work from his own home after he vacated the office (July 2014) until his dismissal on 24^th March 2015.

MWJ told the Tribunal that the claimant appealed the decision to dismiss him and that the Financial Manager (ER) having consulted with MWJ decided to uphold the decision to dismiss the claimant. ER did not meet with the claimant in the course of the appeal and did not give evidence to the Tribunal.

Claimant’s case:

The claimant was an Outreach Worker but also had responsibility for the initial setting up of the office in Galway. When the respondent took the lease on the premises in Galway it was an empty shell and the claimant went about kitting it out, including a fitted kitchen (donated and fitted by the local VEC) and furniture (some of which was owned by the Landlord and some purchased by the respondent).

The claimant was informed in May 2014 that the respondent was to vacate the premises and he was to remove any property belonging to the respondent. Therefore the claimant asked the VEC Manager (PR) (who had fitted the kitchen and helped with the setting up of the office) to remove the glass table and chairs for safe-keeping. The claimant gave the keys to that person to enable him to do this. However PR also removed the fitted kitchen together with furniture belonging to the Landlord.

Subsequently, when the claimant was asked by MW to return the items removed he agreed to do so. The claimant returned all the items except for the glass table which had been sold by a third party. The Tribunal was not told who had sold the table but the claimant said that he was disappointed with PR who had been charged with it’s safe-keeping. At the disciplinary meeting of 10^th February 2015 the claimant offered to pay for the table but felt that this offer “fell on deaf ears”.

It was the claimant’s contention that the respondent had not followed proper procedures in deciding to dismiss him and that it was unreasonable of the respondent to conclude that there was no alternative but to dismiss him.

Determination:

Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed by the respondent.

The respondent has written disciplinary procedures in place but failed to properly invoke these procedures in reaching the decision to dismiss the claimant. It was clear to the Tribunal that there was no clear distinction between the role of the Investigator, the Disciplinarian and the Appeal Officer insofar as each seemed to encroach on the others function. The Appeal Officer merely rubber stamped the decision to dismiss the claimant.

However the claimant contributed to a degree to his dismissal and in all the circumstances the Tribunal awards the claimant €11,250.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)