UD334/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                         CASE NO.

Barrie Daly                                                                                        UD334/2015

Against

Donnybrook Fair Limited T/A Donnybrook Fair

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr C. Corcoran B.L.

Members:     Mr. J. O'Neill

Mr. S. O'Donnell

heard this claim at Dublin on 31st March 2016 and

Representation:

_______________

Claimant:       Mr Will Joyce, Business & Commercial Solicitors, 28 Lower

               Leeson Street, Dublin 2

Respondent:   No legal representation

Respondent’s case:

JO (the respondent’s store manager for Stillorgan) gave sworn testimony to the Tribunal. She told the Tribunal of an incident on 9^th January 2015 where a message was put on Facebook. JO said she considered it was a form of bullying and reported it to her superior HD.

The Tribunal was referred to a 9^th January 2015 document (follow up) from the claimant which stated that he wanted an apology for “child-like behaviour from what is supposed to be a manager”. JO denied the allegation that she had hung up on the claimant fourteen times.

JO referred to the claimant in another document and said that she was not going to repeat all the bad words that had been used to her, that she had not used any bad language herself and that she did not think anyone deserved this. She said that the claimant had used bad language and had been aggressive when she called him back and he had hung up on her. He had been “speaking loud”. She had tried calling him back. She had not known him very well and had only met him once. JO complained to the respondent that nobody deserved to get abuse like that and said that she was very upset.

In cross-examination it was put to JO that the claimant would say that she had got hostile and verbally abusive to him and that she would not let him speak. She replied that she had not been angry and that she had called him back. She acknowledged that the claimant had sent an apologetic e-mail later but that she had not replied.

The Tribunal was told that the claimant had sent a more fulsome apology and it was submitted that his dismissal had been disproportionate. JO said that she had not seen this apology and that she had said nothing to upset the claimant.

In re-examination JO said that she had worked for the respondent for about fourteen years and that she had never been called overly aggressive. As store manager she was several stages above the claimant but he had abused her terribly on the day in question, although he had apologised later on the same day.

HD conducted an investigation, the claimant handed him a letter of apology and the matter was passed to JF who told the Tribunal that she was appointed to conduct a disciplinary hearing which convened on 21^st January 2015. She asked the claimant for his version of events, he told her that JO had rang him at 6.30am and spoke to him in a condescending manner, he was not given an opportunity to say anything and she hung up the phone. JF said that the claimant had a good record with the employer but that she did not consider any other sanction as what the claimant had done was to put content on Facebook that was a public forum and she considered it gross misconduct.

JH told the Tribunal that she carried out the appeal. She went through the evidence, met with the claimant and there was no new information provided. The claimant fully accepted what he had done and she felt that the claimant was guilty of bullying and also subordination. JH upheld the decision to dismiss as the respondent had a duty and a responsibility to its employees.

Claimant’s case:

The claimant told the Tribunal that he went to work as usual on the day in question and attended to deliveries that had arrived. Around 7am the phone rang, he answered and was asked something like “why the hell are we getting this stock”, it was JO. The claimant said that he had been suffering with tooth ache and wasn’t in the best of form but before he could explain anything she hung up. He tried to ring her back (up to 14times) but when the phone was answered he heard JO approach the phone and hang up.

He wrote an e-mail to LH at 6.51am and complained about JO saying that her behaviour was child-like and that he wanted an apology. The claimant admitted that he then went on Facebook and put up a derogatory post about her. Later on L ( his manager) asked him to come to the office and told him that what he had written could be classed as bullying behaviour. The claimant offered his resignation but L told him to “cool off”.

At 11.26am he e-mailed JO with a sincere apology, stating that it was rude and demeaning for him to do what he had done, he copied the apology to L and HD. The claimant said he was then called to an investigation meeting where he again “put his hands up”. He wrote another letter of apology which he handed to L apologising to everybody (including the owner of the business) and stating that his actions were inappropriate and immature.

He told the Tribunal that what he had done was inappropriate but not bullying. HD even met with him after the dismissal to see if he could help him find alternative employment. He gave evidence of loss.

Determination:

On balance, the Tribunal are of the view that there were flaws in the company’s policies and procedures that rendered the dismissal of the claimant unfair. He immediately put his hands up and apologised to all concerned but no other sanction was considered.

However, the Tribunal are also satisfied that the claimant contributed significantly to his dismissal insofar as that his actions were offensive and inappropriate.      

The Tribunal awards the claimant compensation of €5,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)