EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
James O'Connell Snr. -claimant
UD1235/2014
against
Mid-Tipperary Co-Op Livestock Society -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney B.L.
Members: Mr J. Hennessy
Mr J. Jordan
heard this claim at Thurles on 15th September 2015
Representation:
Claimant: Mr. John Madden B.L. instructed by Philip J. Egan & Co, Solicitors,
29 Liberty Square, Thurles, Co. Tipperary
Respondent: Butler Cunningham & Molony, Solicitors, Templemore, Co. Tipperary
Summary of evidence:
The fact of dismissal was in dispute between the parties.
At the outset of the hearing it was submitted on behalf of the respondent that the claim was lodged outside the stipulated six-month time period as stated in the Acts. It was further submitted that the claimant does not have one year’s continuous service to enable him to bring a claim under the Acts. The Tribunal heard evidence from the claimant and the Manager of the respondent which is a mart, operated by farmers, for farmers, to facilitate the sale of livestock.
The respondent operates a panel comprising mainly of farmers and other individuals with requisite skillsets. The individuals on the panel are called to work on a rota basis. The claimant’s employment with the respondent dated back to 2007 but became more consistent from 2009. The level of work received by the claimant could vary somewhat year on year and it was the respondent’s case that there was no guarantee of work by virtue of being on the panel. For example the claimant worked 36 days in 2013, 34 days in 2012 but only 15 days in 2011. The claimant’s usual day at the mart was Monday.
The practice of the mart is that it ceases to operate at the end of November each year and re-opens the following January. It was the claimant’s evidence that each year the yard foreman would telephone him to return the following year.
The last day the claimant worked was the 25th November 2013. However, he did not receive the usual telephone call to return in January 2014. He attended at his workplace and observed another employee in his place. The yard foreman told him he did not know what was happening about the claimant’s position.
The clamant attended the workplace on a second occasion and again spoke with the yard foreman who this time told him that he should speak to the Manager of the mart in relation to his query.
It was common case between the parties that the claimant and the Manager had a meeting at which it was made clear to the claimant that he was not being provided with further work. It was the Manager’s evidence that he was certain he did not have this meeting with the claimant until March 2014. The claimant could not recall the date of the meeting but thought it was possibly early in the year. It was common case between the parties that the claimant was told at this meeting that he had a negative attitude towards the mart. The claimant asked why he had not been recalled and the Manager told him that it was felt by a number of people that the claimant was speaking of the mart in a negative manner and that he had been removed from the panel. The claimant said he held his “hands up” if he had done something wrong.
During cross-examination the claimant refuted that he was informed at a committee meeting in December that a decision had been taken to reduce the numbers on the panel and that he would not be receiving any further work.
It was the evidence of the Manager that without a formal committee meeting, two members of the committee made the decision to remove the claimant and a colleague from the panel. The other person was removed due to unsafe work practices. The claimant was removed due to the feedback received about his negativity. It was the Manager’s evidence that a number of sources approached him regarding this issue and he recollected being present at a public meeting where the claimant expressed such views.
During cross-examination the Manager accepted the claimant was not provided with an opportunity to defend himself against the allegations- he simply was not recalled to work at the mart. If the claimant had not sought the reasons for not receiving work, the respondent probably would not have told him.
The claimant in his evidence recalled one incident where he complained to the Manager about the sales process at the mart but other wise he refuted the Manager’s evidence that he was negative towards the respondent and/or its operations and there were no such issues put to him.
The claimant gave evidence of loss.
Determination:
The claim was filed with the Tribunal on the 10th July 2014. The Tribunal is satisfied of it’s jurisdiction to hear this claim as by the respondent’s own evidence the Manager did not communicate the decision to the claimant until March 2014 that he would not be receiving further work from the respondent.
The Tribunal is also satisfied from the evidence that the claimant has the requisite service to qualify him to bring a claim under the Acts.
It is clear from the evidence adduced that the claimant was not provided with an opportunity to defend himself against the allegations which lead to the dismissal from his employment. The Tribunal finds the appropriate award in this case to be compensation of €4,000 under the Unfair Dismissal Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)