EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD436/2015
APPEAL OF:
George Quinlan
-appellant
against the recommendation of the Rights Commissioner in the case of:
C.P. Smyth & Son Ltd
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr P. Pierson
Mr N. Dowling
heard this appeal at Mullingar on 2nd February 2016 and 10th May 2016
Representation:
Appellant: Mr. Paul McGlynn, Hrs Consultants, Clonard House, Market Square, Navan, Co. Meath
Respondent: Mr M Shaw, Kelly Caulfield Shaw Sols, 4, Chapter House, Friars Mill Rd, Mullingar, Co. Westmeath
Background:
This claim came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner Recommendation reference: r-148243-ud-14/SR.
Determination:
The Tribunal has carefully considered the evidence adduced over the course of two days of hearing. The appellant brings this case by way of an appeal from the finding of the Rights Commissioner dated 30th March 2015. The appellant’s case is that he was constructively dismissed in or about July 2014 by reason of the adverse circumstance that pertained in the workplace for a considerable period and culminated in an alleged assault by his employer on the 10th of July 2014.
The respondent company is a retail hardware enterprise operating in Mullingar. The appellant came onto the premises in or about September 2012. The appellant had a talent for the work and was particularly good with his hands and able to do most tasks asked of him. In this regard his employer, as represented by the owner and his son, gave the appellant full credit for his ability and the quality of his work.
The respondent company is a reasonably successful one with a turnover annually of about €1 million. The owner of the premises described the workplace as being “family like” where everyone got on and was included. Both the owner and his son gave evidence that they believed the appellant was generally happy in the workplace. The Tribunal would have to be critical of the respondent’s lack of clear and open channels of communication and it is particularly regrettable that there were no clear procedures of what employees should do in the event that they encounter difficulties in the workplace. The owner in his evidence stated that they had not needed such formal procedures as it had never arisen in the workplace but it seems to this Tribunal that the owner was in fact operating to his own code which might be seen as old-fashioned in the modern workplace. So for example when the appellant did in fact make a complaint about a colleague (T) throwing something at him the owner confirmed that he dealt with this unacceptable behaviour by telling T that he wasn’t having it and he “wouldn’t have a job” here if he did it again.
The appellant gave compelling evidence to the effect that he was being tormented by T in the workplace. The owner’s son KS gave evidence that there was light-hearted banter but he never got the impression that this had escalated to the unacceptable level described by the appellant. In this regard, the appellant said that T would repeatedly describe the appellant as “queer” and “shop girl” and generally diminish and demean him in the workplace. The witnesses for the respondent company deny any knowledge of the level of abuse and it is accepted that the appellant never brought a formal complaint to them - though it is recognised that there were no processes in situ for the bringing of such a complaint.
The appellant described an employer who was himself capable of goading the appellant for his own purposes. The employer accepted that there was no formal training given for manual handling which of itself is surprising given the nature of the workplace. The appellant said the owner would often belittle the appellant for not being able to physically lift things and would challenge his fitness and strength and goad him on his ability to get the job done. The appellant described doing things in anger and pushed into it by the owner.
A co-employee of the appellant (CK) gave evidence that supported the appellant’s account of the relationship between the appellant and T. There is no doubt that T was giving the appellant an unacceptably hard time. CK found it hard to believe that the owner and or his son did not know about the level of hassle the appellant was getting from T - however CK did not intervene on his behalf.
CK’s evidence together with that of the appellant, the appellant’s girlfriend and indeed the appellant’s representative (who put certain propositions to KS in the course of cross-examination) were consistent in describing the owner, DS, and his son KS of being liable to get very, almost uncontrollably, angry. The Tribunal cannot ignore the consistency of this evidence so for example, KS became very angry when the appellant accidentally damaged goods.
The appellant on balance was not happy in the workplace. He was getting a hard time from T and appeared not to be able to formally articulate his problems to any member of management. The appellant at one point appeared (to himself at least) to be accused of stealing €50.00 from the till and found this to be most upsetting. It was put to the Tribunal by the employer that this was a routine enquiry made of the appellant as of all employees.
Finally on the 10th July 2014 the appellant together with the owner were delivering a cooker out to an address in Summerhill. The appellant was becoming upset as he was expected to pick his child up from a crèche at an appointed time and he was not going to make it. The owner had thought he knew where he was going but in fact was lost. The Tribunal accepts these things happen and that there was an inevitable tension in the van. As it happens they did eventually find their destination and the appellant was able to organise a pick up for his child back in Mullingar.
Despite this perceived resolution the appellant and the owner gave entirely different accounts of what happened in Summerhill that evening and this evidence is most important as it was the trigger that gave rise to the appellant’s final departure from the workplace.
On balance the members of the Tribunal fully accept the appellant’s account of what happened that afternoon in the client’s home in Summerhill. In this regard it accepts that the owner intentionally shouldered the appellant twice in the course of the interaction and did so because he was frustrated and angry with the appellant. The Tribunal accepts that the owner knew he had pushed it too far and tried to make amends in the van on the way home.
Whilst the Tribunal has to find that the respondent may not have had any idea how unhappy the appellant may have been in the build up to this event, the Tribunal considers the physical assault perpetrated on the appellant to, of itself, amount to sufficient justification for the appellant to consider the employment relationship to be irreparably breached. The appellant could not be expected to trust again an employer prepared to force his authority through physical confrontation. The Tribunal therefore finds in favour of the appellant and awards him €11,000 under the Unfair Dismissals Acts, 1977 to 2007, thus upsetting the Rights Commissioner Recommendation reference: r-148243-ud-14/SR.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)