EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1775/2014
PW338/2014
TE168/2014
APPEAL(S) OF:
Claddagh Building Contractors Limited
-Appellant
against the recommendation of the Rights Commissioner in the case of:
Adrian McNeill
-v-
Claddagh Building Contractors Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. T. Gill
Ms H. Henry
heard this appeal at Galway on 21st April 2016
Representation:
Appellant: Ms Dawn Carney, Sheehan & Co, Solicitors, Augustine Court, St. Augustine Street, Galway
Respondent: Mr. Brian M. Geraghty, Geraghty & Co, Solicitors, 1 Rosemary Avenue, Eyre Square, Galway
Background:
These cases are before the Tribunal by way of an employer appealing a Recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, a Recommendation under the Terms of Employment Information Act 1994, and a Decision under the Payment of Wages Act, 1991, the employer being the Appellant and the employee the Respondent.
Employer / Appellant’s case:
The Tribunal heard evidence from the director of the company, PK. The company is a small construction maintenance company. The witness stated that the employee/respondent commenced as a general labourer. Thereafter, he supervised other workers. He stated that he furnished the employee/respondent with a contract of employment.
The witness described an incident that occurred on 20th December 2013 in Ballindine, County Mayo. He had work planned to construct or repair a footpath near his home. On the day in question he was on site with the employee/respondent and another worker as they prepared the area. The weather was poor but the work had to be done. The lorry carrying the concrete arrived late at around 10:30 am. Due to the wet weather, the concrete was going to take longer to set.
The witness explained that he had to leave at 1.00 pm. He left the employee/respondent and the other worker to continue with the work. The witness was aware that the respondent employee had holidays booked from the 20th December onwards and had asked to leave early. However, he told the respondent employee that “under no circumstances was anyone to leave early before 3pm”.
The witness arrived at his destination in Galway at 2.00 pm and phoned the employee/respondent. The employee/respondent told him that he had left the site. The witness asked him if the concreting was finished and was told that “it was ok”. He told him to go back and finish the concrete. The employee/respondent refused. He then told the employee/respondent to bring the company van back to the base in Galway, and the employee/respondent told him, using expletives, to pick the van up himself. He said he was surprised and shocked because normally the employee/respondent would finish a job.
The witness explained that he himself had to return to the site. There was a plastic cover over the area, but the concrete was not finished and he had to repair it as best he could.
The witness had no further communication with the employee/respondent that night. He said that he thought about the situation and he concluded that someone whom he had considered a friend had “blown trust” between them. He decided to terminate his employment for gross misconduct by text message on the following day. He followed this up with a letter of dismissal dated 8th January 2014.
Employee / Respondent’s case:
The Tribunal heard evidence from the employee/respondent. He commenced in the employment in 2001. He had been working with PK since 1995. After three years he was promoted to foreman and was responsible for hiring and firing.
On the day in question the concrete arrived late and at about 12:20 pm the concrete was laid. He had “rubbed up” the concrete twice. At some point, he had said to PK that they were “soaked to the skin”, as the weather was atrocious.
To the best of his understanding the work had been completed. He left the site at 2:30 pm. PK phoned him at 2:35 pm, and the witness told him that the work was completed at which point PK hung up. He phoned PK back and was told to leave the van back at base in Galway, which he duly did.
On the following day, the 21st December, the witness was at the railway station about to depart for his holidays when he received a text message from PK to say “considering your gross misconduct you’re dismissed...”. The employee told the Tribunal that he had asked PK for permission to take a half day on the 19th December in order to collect dollars from his Credit Union in Galway city, prior to going on holiday. He stated that PK said “you can’t go today, but you can go tomorrow” (i.e. Friday 20th December and the last working day before Christmas). The employee was endeavouring to get to the Credit Union before close of business on that Friday. He perceived the altercation to be no more than an argument, moreover, as the work being carried out was at the employer appellant’s home.
The witness gave evidence as to his loss/ mitigation of loss.
Determination:
The Tribunal considered all the evidence adduced and submissions in this case. Having regard to all the circumstances, the appellant employer behaved unreasonably in the manner in which he summarily dismissed the employee/respondent by text message for “gross misconduct”. There was no regard for fair procedures, there being no grievance procedure in existence. Moreover, the employee/respondent did not receive a verbal or written warning. The penalty was totally disproportionate to the alleged offence. The appellant employer failed to discharge the onus of proof necessary to justify the employee/respondent’s dismissal.
Under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal determines that the employee/respondent was unfairly dismissed, on substantive and procedural grounds. Accordingly, the Tribunal upholds the recommendation of the Rights Commissioner in awarding the respondent/employee the sum of €33,000.00, as compensation.
Under the Payment of Wages Act, 1991, the Tribunal affirms the decision of the Rights Commissioner and awards the respondent employee the sum of €3,257.22.
Under the Terms of Employment Information Act 1994, the Tribunal affirms the Recommendation of the Rights Commissioner and awards the employee/respondent the sum of €1,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)