EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Declan O'Brien UD1463/2014
MN757/2014
against
Hill Street Quarries Silica Sand Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr. N. Ormond
Mr T. Gill
heard this claim at Carrick-On-Shannon on 9th September 2015
Representation:
_______________
Claimant: Mr John Duggan, Callan Tansey, Crescent House, Boyle,
County Roscommon
Respondent: Patrick Duffy, Solicitors, Carrick-On-Shannon, Co. Leitrim
At the outset of the hearing the respondent’s representative told the Tribunal that dismissal was in dispute and that they had advised the claimant of same (by e-mail) on the day prior to the hearing.
Claimant’s case:
The claimant gave evidence of being a 58 years old mining engineer, with a degree in quarry management. He began with the respondent in 2003, initially in a health and safety role but then was given responsibilities for environmental issues. These roles then got expanded to operating the sand plant, keeping records for drilling and blasting, looking after the crushing line, maintenance and the operation of a new sand drying plant amongst other things. ISO was introduced and he told the Tribunal that he was even asked to work in the office one day.
On 1st May 2014 he went to work as normal and discovered a conveyor belt broken, that was priority so he did the repairs and made sure it was operational before going to the canteen for a break. It was a Thursday prior to the bank holiday and he had arranged to work on the Saturday.
The quarry owner approached him and asked that he work the bank holiday Monday. He said no, that he was unavailable and took the opportunity to ask DF that his role/responsibilities be clarified as it kept expanding and he was trying to do too many things.
DF told him his responsibilities were the same as when he started employment and asked if he was coming in on Monday or not. When the claimant said “no” the respondent said if you are not coming in on Monday then don’t come in on Tuesday or any day after that. The claimant asked if he was sacked and was told “yes from this minute”. He followed the respondent to his jeep, asked for a letter outlining why he had been dismissed , gathered up his stuff went to the office where he again asked for a letter outlining why he had been dismissed and requested that his P45 be sent on a.s.a.p. He received it by post on 16th May but no letter of explanation was enclosed.
The claimant wrote to the respondent (addressed it to the owner) on 30th May but received no reply. He wrote again on 7th August again requesting reasons and suggesting an independent mediator. The respondent replied on 18th August stating that he was willing to discuss the situation with a mediator any time after 5th September. The claimant wrote again on 11th September requesting the employee handbook and grievance procedures and stating that he was not opposed to mediation under the auspices of the LRC or a related body. The respondent replied on 2nd October stating that he did not have an employee handbook, grievance procedures were covered by employment law and he had no problem with the LRC suggestion. This was the last correspondence between the parties and the claimant felt he had to submit a complaint form to the Tribunal as he was running out of time. He gave evidence of loss.
Respondent’s case:
DF gave evidence of the respondent’s business operation and the finances of the company. He said that while the claimant was on holidays some issues came to light regarding health and safety at the quarry, certificates were out of date and other things needed attention. His immediate request to the claimant on 22nd April was that forklift training be done immediately. DF asked again about it on 28th April and the claimant said he was working on it.
He asked the claimant to organise for the crushing plant to be operational on the bank holiday Monday. His expectations were that the claimant would take another day off in lieu. A heated discussion took place and the claimant asked for clarification of his role. DF asked that he leave the quarry but didn’t think he said “not to come in on the Tuesday or any day thereafter”. It was a dispute, he knew the claimant all his life and thought that the claimant may have got someone to mediate. DF did not look for a letter of resignation, he thought that the claimant had walked out of his job and he was annoyed. He also stated that he tried to do his best but felt that the claimant was not co-operating with him and not giving 100% commitment to his post.
Determination:
Having carefully considered the evidence in this matter, the Tribunal have determined that the claimant was dismissed and that this dismissal was unfair. The Tribunal believes that a conversation became heated when the claimant was asked to work on the bank holiday and that both parties contributed to this occurring. The claimant’s evidence is that he was dismissed during that conversation. DF advised the Tribunal that he had not dismissed the employee but had simply asked him to leave the premises.
The Tribunal find that the respondent did not engage with the claimant following the incident and only on the day prior to the Tribunal hearing did they suggest that the claimant had not been dismissed. The claimant had good reason to believe he had been dismissed from work on the day of the altercation and continued to look for written confirmation from the respondent as to why. He did not however pursue the mediation that he had suggested in his own correspondence.
The Tribunal have determined that the most appropriate remedy is compensation and awards the claimant €35,000 under the Unfair Dismissal Acts.
The Tribunal dismisses the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, as no evidence was adduced under that Act.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)