UD1172/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Rafal Siwak                                                                                                   UD1172/2014

-Claimant                                        

against

Ballinrobe Waste Disposal Limited

-Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. M. Gilvarry

Members:        Mr. T. L. Gill

Mr. T. J. Gill

heard this claim at Castlebar on 10th February 2016

Representation:

Claimant: Ms Claire Walsh BL instructed by Ms Lisa Collins,

McDarby & Co., Glebe Street, Ballinrobe, Co. Mayo

Respondent: Peninsula Business Services (Ireland) Limited,

Unit 3, Ground Floor, Block 3, East Point Business Park, Dublin 3

Background:

The Respondent is a waste disposal company. The Claimant worked as a waste disposal collector. Dismissal is in dispute. There were incidents whereby monies that were attached in envelopes to refuse containers were not forwarded to the Respondent.

Claimant’s case:

The Tribunal heard evidence from the Claimant. He explained that bins were left for collection with money attached to them and he collected the money. He gave the money to the driver. The driver took the money for himself. He was on holiday in July August 2012. When he returned the owner spoke to him. There was a meeting on 01^st August 2012 and he was told that he was suspended for the rest of the week.   He was told that he would be contacted by the end of the week. He was never contacted. The following week he did not feel well and went to his doctor. The doctor prescribed medication, as he could not eat or sleep or focus.

He was never told to return to work. He was not contacted by the Respondent within the following month. He tried to contact the owner but could not. He spoke to a solicitor and there was a lot of correspondence between the solicitor and the Respondent.

Respondent’s case:

The Tribunal heard evidence from MM the director of the Respondent.   He explained that had heard about an allegation of an event/s. He therefore interviewed the driver about the matter and the driver admitted to the act and the driver returned the money. The driver told him that it was a fifty-fifty split between himself and the Claimant. At this time the Claimant was on holidays and the driver told him that he would retrieve the money from the Claimant.

At some point in time the Claimant and the driver had a quarrel and the driver refused to work with the Claimant.  

The witness explained that one a day when they had an audit from the Revenue Commissioners the Claimant banged on the door of the office and asked to speak with him. He told the Claimant to return later.   The Claimant returned at a later time with his daughter (for translation purposes). The witness explained that the Claimant admitted to taking the money and said that he would repay the money. The Claimant also signed a statement (not opened or produced to the Tribunal).

They asked the Claimant to return the following day with the names and places and the amounts involved and he said that he would. However the Claimant did not return: the Claimant submitted sick certificates. The witness was asked why they issued a p45 to the Claimant and he explained that they needed to know when or if the Claimant was going to return to work and they had no reply from the Claimant or his solicitor as to that. He explained that the other driver had been kept on in their employment after the incident until he left of his own volition. All the Claimant had to do is to get back to them with the information regarding the transactions so that they could process them “to sign them up” (as customers).

Determination:

Having heard the evidence adduced in this case the Tribunal unanimously determine that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. There were no correct procedures in place in the Respondent and correct procedures were not followed. The Claimant was not told in advance of the meeting that he could be brought to a meeting and told that he could be dismissed. There was no disciplinary hearing.   He was not told of his right to representation. He was dismissed without a fair hearing.

The Tribunal having at the outset of the hearing canvassed both parties as to their preferred remedy should the Claimant’s case be successful, determine that the most appropriate remedy be compensation. Having heard the evidence as to loss, and noting his long term disability and inability to mitigate his loss, the Tribunal awards the Claimant the sum of €1,408.00 (one thousand four hundred and eight euros), this being four weeks gross pay, as compensation, under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)