EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paul Compton UD1382/2014
-Claimant
against
Zinc Processors Limited T/A Shannonside Galvanizing
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. J. Hennessy
Mr. J. Flavin
heard this claim at Limerick on 15th January 2016 and 6th April 2016
Representation:
Claimant: On first day of hearing, O’Gorman Solicitors, Munster House,
75a O’Connell Street, Limerick
On second day of hearing, Mr. Michael Long,
65 Upper Careys Road, Limerick
Respondent: Ms Mary Geary, McMahon O'Brien Tynan, Solicitors, Mount
Kennett House, Henry Street, Limerick
Dismissal was in dispute in this case.
Claimant’s case:
The claimant told the Tribunal that he worked as a general operative/ truck driver for the respondent. MO’C was his manager and the transport manager. DB was yard manager, TF was the accountant. Mr. TD and JH were the top “overall persons”. He had a very good working relationship with everybody and had “no problems at all”.
The company closed for the first two weeks in August each year for holidays and a maintenance break. In August 2014 during the annual break some staff were retained as cover in the yard and the claimant was one of these. MO’C asked him to work during the two week “holiday” maintenance period. He asked if he could be paid cash and he was told that it would be ok. It was to be €100.00 per shift. He worked six days in total for that period so it was to be €600.00. He said that when he was back in work on the Monday following the period he asked MOC to “sort out the few pound owed to me i.e. cash”.
MO’C told him to go to see TF the accountant.
He asked TF for cash but was told that he was not getting cash as it was illegal.
He then went to MOC and told him that TF refused, MOC said that it was not a problem and to leave it with him. Later on he went back to MOC who had changed his story and MOC told him that they do not do that (pay in cash) that it was illegal.
The claimant then phoned TOD who is one of the directors of the company. He stated the situation clearly to TOD who listened and told him that he would sort it out. He would revert to him later. The claimant explained that TF paid him €400.00.
The claimant was in the work yard at some point in time, circa 15th August 2014, and JF swore and cursed at him and told him that he should not have gone over his head, and that he would regret it. Later on that evening TOD spoke to him and said, “your job is gone you are sacked get your stuff (expletive)”. He got his things and left. He had given the key of his truck to M.
The following day Saturday, TOD phoned him and asked to meet. They met and the claimant thought he was going to get his job back. TOD told him that “he crossed the line”, that he went above the management in the yard and that he could not do that. He asked TOD for his job back and TOD offered him money circa one month’s wages. He refused to take the money. TOD intimated to him that there might be opportunities down the line and he told him if he did not accept the offer that he “would be blackened in Limerick”.
A letter dated 15th September 2014, was opened to the Tribunal. The claimant agreed that in the letter the respondent denied that he was dismissed. The claimant was asked if he spoke to anyone to tell them that he was sacked, and he replied that he did.
The company did not offer him a number of days to cool down but he did not get anything in writing to say he was not dismissed, or to reconsider or to “cool down”. The claimant gave evidence as to his loss but was unable to provide any tangible evidence of same.
In cross-examination it was put the claimant that MOC would give evidence that he reverted back to him and said that he would get paid through the pay roll, the claimant denied this. The claimant accepted that at some point he was told that it was illegal to pay cash. He accepted that there was no obligation to pay him in cash.
It was put to the claimant that there would be an absolute conflict in evidence as to what happened between him and Mr. O’D. The claimant in answering a question said “I left before I got the chop”.
It was put to the claimant that he himself left the employment without giving notice, that Mr. M would give that evidence. The claimant replied at some point that he “left no one in the lurch”.
On the second day of hearing the solicitors for the claimant appeared before the Tribunal and came off record. An application for an adjournment was made by Mr Long (now representing the claimant) and after consideration by the Tribunal the application was refused.
Respondent’s case:
DB told the Tribunal that he had a good working relationship with the claimant inside and outside of work. He received a phone call from MO’C while on holidays advising him that the claimant had sought cash for time worked, didn’t get it and had left.
The respondent then received a letter from the claimant’s solicitor advising the company that the claimant had been summarily dismissed without just cause. They wanted a response within seven days.
DB spoke to everyone involved within the week of his return from holidays, he replied outlining the inaccuracies in the claimant’s allegations and advised that the claimant had not been dismissed, he was given time to cool down but demanded his P45. He also stated if he wished to discuss the matter further that he (DB) would be delighted to speak with him. DB went on to say that of the seven people who worked during the maintenance shutdown nobody received cash, it was not done by the respondent.
MO’C told the Tribunal that he received a phone call from the claimant saying that he was not getting paid for the days he worked, the accountant had told him so. He was unaware of any original request by the claimant to receive cash and when MO’C spoke with the accountant he was told that the claimant had requested a cash payment. The claimant was told he would be paid through the payroll like everyone else and that it would be illegal to pay him cash. He then became agitated and stormed out of the office saying “your not f…n paying me so”.
Over the next few days MO’C said that he would have spoken to the directors as to what had happened. On the morning of 15th he met the claimant in the weighbridge area, the claimant gave him the keys and his phone and said “thanks very much for getting me the sack”. MO’C told him it had nothing to do with him, it must be something the claimant did himself. There was no further communication from the claimant except texts requesting his P45.
TD director of the company told the Tribunal that he knew the claimant well and had a good relationship with him. He gave evidence of receiving an irate phone call from the claimant saying that he wasn’t getting paid for work he had done, somewhere in the conversation cash was mentioned. TD told him “no way” and the claimant said “well I’m out of here so”.
TD advised him to calm down and arranged to meet him with JH the other company director at a neutral venue. Both directors told the Tribunal that the claimant was never dismissed. At the meeting the claimant was told that the respondent does not pay cash ever, he was offered alternative positions with the respondent, was told to consider it and let them know. TD said is phone was always on but the claimant didn’t come back to him, he chose to leave
Determination:
There was much conflicting evidence given during the hearing but the Tribunal on balance prefer the evidence adduced on behalf of the respondent. The claimant failed to satisfy the Tribunal that he had good reason to so absent himself and consider himself dismissed. His direct evidence was that he wanted a cash payment and that he left “before he got the chop”.
The Tribunal further finds that the respondent met with the claimant and offered alternatives but the claimant did not consider them. He also was unable to provide any evidence of loss.
In the circumstances the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)