UD205/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

James Bannon                                                                                                            UD205/2015

against

Dte Manufacturing Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr C. Lucey

                    Mr M. O'Reilly

heard this claim at Dublin on 24th February 2016

Representation:

Claimant:

Mr. Padraig Hyland, B.J. O'Beirne, Solicitors,

             3 Church Buildings, Main Street, Arklow, Co Wicklow

Respondent:

Mr. Damien Cahill, IBEC, Knockrea House, Douglas Road, Cork

Determination:

The claimant commenced his employment with the respondent in 1997. He did have issues with the quality of work being done by the company. He expressed his dissatisfaction by e mails to the managers. A short time following this, a new CEO commenced with the respondent. There were issues between the CEO and the claimant from the outset. Matters came to a head in relation to an insurance claim. The claimant stated that he told the CEO following that issue that he couldn’t work with him anymore and requested a redundancy payment. He was informed that no redundancy situation existed and he would not be paid to leave.

In September 2014 the claimant was on holidays. BF (CEO) was looking for specific information in relation to a stair design. He went to the claimant’s computer and while there found a file called “Stairs”. He opened it and found work that the claimant was doing for a third party. The CEO suspended the claimant. There is an issue as to the terms of that suspension. The claimant states that he was not told why or for how long. He stated that he did e mail the respondent on numerous occasions requesting details of the suspension and the investigation. The respondent stated that the claimant was told he was being suspended for one week pending investigation. The Tribunal is satisfied that the claimant was not aware of the reasons for the suspension or the timeframe.

The investigation was not thorough or objective. The claimant was not interviewed. None of the Third parties were asked if he was working for them. The claimant was not given a copy of the investigation findings.

The disciplinary hearing also lacked fairness and transparency. The claimant was not informed of the specific allegations. The hearing was conducted by BF who was the person who carried out the investigation. The claimant was not asked to read the notes of that meeting and to approve them. The dismissal letter was prepared on the day oy the hearing and furnished to the claimant on that date. The claimant alleges it was prepared in advance. The Tribunal cannot conclude categorically that it was prepared in advance.

The claimant did admit he did do work for a competitor. He said he did so but on his own time. Carrying out work for competitors does amount to a breach of trust and the respondent was justified in concluding that the working relationship had been damaged beyond repair. However that does not excuse the serious lack of procedures in this case.

The claimant did not appeal the decision to dismiss him. The claimant has an obligation to exhaust the internal disciplinary process in the vast majority of situations. However, in the circumstances were he can show that the appeal process would be pointless he may be justified in not exhausting the process. In that regard the Tribunal are satisfied that the advertisement that appeared in the “Wicklow People” on the 1^st October 2014 was for the claimant’s position. Furthermore the following day another individual was employed, albeit under contract, to carry out the claimant’s role. In the circumstances the claimant was entitled to come to the conclusion that an appeal was pointless.

The Tribunal finds that whilst the claimant was the author of his own demise the Tribunal can only conclude based on the complete lack of procedures that he was unfairly dismissed.

In all the circumstances the Tribunal awards €1,500.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)