UD687/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD687/2015

CLAIM(S) OF:                                                                    

Aleksandr Elkond                                                               

against

Corpbrook Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr. J. O'Neill

                     Mr. C. Ryan

heard this claim in Dublin on 28 April 2016 and 22 June 2016

Representation:

_______________

Claimant(s):

             Vadim Karpenko, 13c Main Street, Ongar Village, Dublin 15

Respondent(s):

              No legal representation

The determination of the Tribunal was as follows:-

RG (the respondent’s MD) told the Tribunal that one of his witnesses was in the U.K.. The Tribunal told him that it had the practice of taking witness evidence viva voce so that each witness could be questioned. RG said that he had got little notice of the hearing. The Tribunal noted that the respondent’s registered address had changed. RG said that he could bring someone on a future date.

The Tribunal swore in the parties but the claimant’s representative evinced doubt as to the claimant’s fluency in English. The representative could speak English but admitted that he could not claim to be independent in this case. He broached the possibility of the attendance at a future hearing of a Tribunal-appointed Russian interpreter.

The case was adjourned to the full day of 22 June 2016 so that notification could go to the respondent’s most up-to-date registered address and so that an independent Tribunal-appointed Russian interpreter could attend.

Giving sworn testimony at the resumed hearing, GD said that he had been an employee in the business and had needed a saw for work on a chair such that he needed a saw and went to the claimant who was aggressive and said that he would cut GD’s throat. GD told the Tribunal that he had been twenty years in retail but was scared by this and reported it to LG (a manager).

GD said that the claimant had his name on his office and had produced a big bowie knife such that GD was scared after he had wanted a saw. The claimant had confronted him.

GD told the Tribunal that there was a second confrontation when scaffolding was being dealt with. The claimant was very aggressive and again said that he would cut GD’s throat. GD again reported what had occurred to LG. The claimant always carried a knife. GD went away too upset.

Under cross-examination, GD said that he had not contacted the Gardaí. He had been so upset and had not known what to do.

Questioned by the Tribunal, GD said that the claimant had had no authority over him and that he had knocked, had gone in and had said that he was seeking a saw. The claimant had a huge knife like a bowie knife. The claimant stood up with the knife in his hand and said (louder than normal and aggressively) that he would cut GD’s throat.

Questioned by the Tribunal, the claimant’s representative said that the claimant’s case would be a denial of the allegations against him.

Giving sworn testimony, RG (managing director of the respondent) said that GD had reported the events to him whereupon RG had decreed that there would be a disciplinary hearing the next day. The claimant confirmed that he had made the threat but said that he would not have carried it out. RG rang the business’s co-owner. The claimant was dismissed.

Under cross-examination, RG said that it was he who had told the claimant of his dismissal. RG conceded that he had sent no letter. He offered to the claimant to have a witness but the claimant declined. RG spoke to GD. The claimant admitted that he had said the words but said that he had not wished to use the knife. The claimant was a handyman in the shop. RG told the Tribunal that the claimant had been throwing a knife at the wall.

Questioned by the Tribunal, RG conceded that there was no record of the claimant receiving verbal warnings. The claimant had sought good references a lot in relation to domestic-related litigation. RG distinguished between such references and a threat to kill and said that he had been concerned for his own safety but had not contacted the Gardaí. RG told the Tribunal that the claimant had verbally told him that he had threatened GD with a knife. RG thought the claimant dangerous.

Further questioned, RG said that he had no written disciplinary policy. The disciplinary meeting had been in RG’s office between just RG and the claimant. This was a very short meeting. The claimant admitted the threat but said that he would not have carried it out. RG told the Tribunal that the claimant did not like people taking his tools, that the claimant’s contract had been given to a Rights Commissioner on another occasion and that there was no disciplinary procedure.

The claimant was dismissed on 4 April 2015. RG made no notes. The claimant asked for money. He was having marital difficulties. RG thought the claimant was looking for a pay-off after RG told him he was dismissed.

Giving sworn testimony aided by a Tribunal-appointed interpreter, the claimant said that he looked after inventory including tools. All products were auctioned off through him. Asked if he had a knife in the job, he said that what he had was most useful as a knife. He said that he had a similar knife with him and offered to show it but this offer was not taken up.

Asked why he had been dismissed, the claimant said that he had no idea but that there had been a fire and “that part of the shop was closed”. The claimant denied making any threat, saying that this never happened. He had built a special mechanism for staff to use. People came to his office all the time to borrow tools.

Asked if GD had gone to the office, the claimant replied that, if GD came, the claimant would direct him to the toolbox. All staff came to the claimant about ten times per day.

Asked if he recalled an incident on the stairs, the claimant replied that some scaffolding needed to be brought. He had asked two others to assist. They said he was to oversee that operation and make sure all was in order. Others had put scaffolding down in a very untidy way.

The claimant admitted carrying a knife in the job. He had been complimented for having a multi-purpose knife at all times but he did not take the knife out at all to threaten people. RG sent him a text message saying not to go back to work but to bring back his phone.

The claimant said that RG said that the respondent could no longer afford him but that the claimant would not get any money.

Answering questions at this point, GD alleged that what the claimant was saying was untrue and RG said that the claimant was never redundant and that the respondent had had to replace him.

The claimant countered that GD was lying and gave details of part-time work he had got since working for the respondent.

Under cross-examination, the claimant was asked why three others would lie. He replied that others were employees of the respondent and that he had not admitted making threats. The claimant told the Tribunal that the respondent had no longer needed him. He reminded RG of how much work he had done and asked if there was money due to him. The finance person in the respondent had said that he would only get €188.00 and was not entitled to anything else.

RG alleged that the claimant’s English was better than he made it appear.

In re-examination of the claimant, the claimant said that he had not got a dismissal letter. RG accepted that it was verbal. The claimant said that he had not known that he had a right to a representative at the end. Regarding a contract, the claimant said that he was shown a contract which was taken from him. The claimant was shown a signature which he denied to have been his.

Determination:

There was a fairly glaring deficiency in how the claimant was told that he was being dismissed. He had poor English. No formal procedure was followed. RG’s evidence did not establish that sufficient procedure had been used. At the very end of the hearing RG produced a contract with disciplinary procedure which obliges the respondent to do a full investigation.

The claimant’s first language was not English. The respondent should have taken great care as to the gravity of the charge against him. The respondent should have taken a written statement from GD and this should have been furnished to the claimant. The Tribunal would go so far as to say that, if the respondent had any doubt about the claimant’s understanding of English, the statement should be translated into his native language.

The claimant should have been offered sufficient and adequate representation at the disciplinary meeting which led to his dismissal. Again, the claimant should be accompanied by a representative who could translate for him if there was any question of his inability to understand what was going on.

The Tribunal considered the dismissal procedurally unfair, thought GD a very straightforward witness and thought he was afraid of the claimant. The Tribunal was somewhat surprised that no-one went to the Gardaí.

There was conflict of evidence in this case. In all the circumstances of the case, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal deems it just and equitable to award the claimant compensation in the amount of €5,000.00 (five thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)