EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Kamil Faltyn UD255/2015
- Claimant MN122/2015
WT63/2015
against
Murtech Engineering Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Wexford on 22nd January 2016, 12th April 2016 and 13th April 2016
Representation:
Claimant: Mr. Paul Hutchinson BL instructed by:
Mr Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium,
Canada Street, Waterford
Respondent: Ms. Nora Cash, Peninsula Business Services (Ireland) Ltd,
Unit 3, Ground Floor, Block W, East Point Business Park, Dublin 3
At the outset the claim under the organisation of Working Time Act, 1997 was withdrawn.
Background:
The respondent is a manufacturer of stainless steel products for the pharmaceutical, construction, chemical, farming, marine, rail way, healthcare and food industries for the Irish and European markets. The claimant commenced his employment on the 20th February 2006 as a General Operative on a gross weekly salary on €624.00.
On the 15th September 2014 the claimant’s brother, who also worked for the respondent, sustained an injury at work. Four days later, the 19th September 2014, a heated conversation, both parties agree, took place between the claimant and the co-owner of the respondent – JM. This is the day the claimant contends he was dismissed. The respondent contends he did not dismiss the claimant.
Claimant’s Case:
The claimant gave evidence. He explained that he had worked for the respondent for a period of eight years. There was no grievance procedure or company handbook in place. The claimant had no contract or written terms and conditions of his employment. In July 2015 the claimant took a claim under the Terms of Employment (Information) Act 1994 and 2001 to the Rights Commissioner who awarded him the sum of €750. He told the Tribunal that while working for the respondent he had no formal training but had been instructed in his duties by one of the co-owners – JM.
The claimant told the Tribunal that working there was “very messy”, there were three bosses to report to including the two co-owners – JM and RM. He said he felt there were a lot of health and safety issues in the warehouse which he brought to the attention of management but little seemed to be done. Machinery was old and damaged, lighting was poor and there was little or no ventilation. Staff were not trained in health and safety matters. When asked, he said that he had not made a formal written complaint as he had very little written English.
On the 15th September 2014 his brother, who also worked for the respondent, injured his hand while working on a lathe. The claimant was present in the warehouse at the time, working with a colleague – P. He heard a bang and a scream and saw his brother on the ground holding his hand. He took his brother outside to the yard. His brother in-law, who also worked there, asked JM to take him to the hospital in his car. En route they met the ambulance who transported the injured man to hospital.
The following day, JM and RM called the claimant to the office and told him it would be better if he said his brother had been pulled into the machine by his overalls. He did not reply but went back to work. Some time later he was again called to the office and told to clean up the warehouse as the Health and Safety Authority were due to visit the premises. It took two days to clean up the warehouse and yard.
On the 18th September 2014 JM sent the claimant to Wexford with a delivery. On his return JM was waiting for him beside the machine on which his brother had the accident. JM told him to instruct a new employee (Witness for the respondent in this hearing) to use the machine. The claimant refused telling the Tribunal that he would not do it as JM had blamed him for his brother’s accident.
On the 19th September 2014 the claimant was completing a delivery, minus pipes that had not been finished due to the accident on the 15th September. He noticed that a plug had not been fixed and told JM it was dangerous as he did not want another accident to happen. RM approached the claimant and asked why the pipes had not been finished. He replied that he felt the machine was unsafe. RM called out to JM. A heated discussion ensued between the claimant and JM. JM told the claimant “I’ll knock your head off”, “to leave his boots”, “to f**k off and not come back”. The claimant told the Tribunal that JM was very angry and he knew JM wanted him to go.
The claimant told the Tribunal that two friends of his were waiting for him in the yard and heard the argument between him and JM. He left the premises with his friends and did not return. He later contacted his solicitor who corresponded with the respondent. (This correspondence was opened to the Tribunal).
The claimant gave evidence of his efforts to mitigate his losses and details of the work he had acquired as a car mechanic in his own business.
When put to him he agreed he had obtained a “wealth of experience” while working for the respondent, JM had been very happy with his work. He told the Tribunal that he had never seen a reaction like he had seen on his last day of employment – the 19th September 2014. He agreed JM had given him the use, rent free, of a garage on-site to carry out his vehicle servicing,
A process sheet was produced to the claimant and the Tribunal at the hearing. The respondent representative stated it had been compiled some 2-3 years before the accident in September 2014. When asked, the claimant said he had no part in compiling the document, had not followed the steps as outlined in it but carried out his duties as he had been shown.
He refuted he had been on his mobile phone for an hour on the 18th September 2014 but stated that he had made a couple of calls regarding his brother. He told the Tribunal that he normally left his mobile phone in the office during working hours but did take use of it during his break times. When put to him he agreed RM had offered for him to attend a doctor or councillor following his brother’s accident on-site.
He refuted that he told JM he was leaving and had informed JM on the 19th September that he would see him on Monday. He agreed he had not received a letter of dismissal but after what had occurred on the day in question he decided not to return to work as he deemed himself as dismissed. He told the Tribunal that he did not receive any form of contact personally by the respondent after that date.
A friend of the claimant, and his brother, gave evidence.
On the 19th September 2014 he and a friend were waiting in his car in the respondent’s yard for the claimant to finish work. When he arrived he knew something was going on, he could “feel tension in the air.” They waited in the car with the windows open. He saw the claimant and P together, the claimant gestured at him that he had seen them and had to clock off. The claimant went inside. The witness then heard noises, not “machinery like roaring”. P looked into the warehouse then ran inside. He heard someone say f**k off and never come back. The claimant came out to the yard looking nervous. The witness told the Tribunal that the claimant did not appear angry at this time. The claimant got into the car and they left.
When put to him he said he may have spoken to RM that day and was asked who they were waiting for. When asked he said that he had not witnessed the row between the claimant and JM but he had heard it. He and the claimant had spoken about it in the car. The claimant had told him his boss had told him to f**k off and get out. The witness told the Tribunal that he could not recall the specific words the claimant had used but he thought he said his (the claimant’s) work was finished there.
Respondents case:
The respondent’s position was that the claimant had told both JM and RM on 19th September 2014 that he was leaving the employment because he felt that the machinery in the plant was unsafe.
JM, who is Managing Director of the respondent and responsible for the day to day running of the plant and staff management, told the Tribunal that he blamed the claimant for the accident in which the claimant’s brother was injured and that he was annoyed at the claimant over this. He also confirmed that there was an angry exchange of words between himself and the claimant at the finish of the days work on 19th September but JM denied that he told the claimant to “F--- Off and not to come back” or “I’ll knock your head off”. As far as JM was concerned the claimant said he would no longer work for him. However, JM expected the claimant to cool down over the weekend and return to work on Monday. When this did not happen JM did not phone, text or call to the claimant’s home but he told the Tribunal that a friend of the claimant’s, who also worked for the respondent told him that the claimant was not coming back.
RM, who is a Director and Secretary of the respondent and is responsible for the day to day administration of the company, told the Tribunal that the claimant had said to her, on 19th September, that he was no longer willing to work for the company. RM was present for part of the heated conversation between JM and the claimant and said that she did not hear JM say to the claimant to “F--- Off and not come back” or “I’ll knock your head off”. Moreover RM said that JM would never use that sort of language to an employee. RM did not hear the full conversation that went on between JM and the claimant.
RM believed that the claimant was still an employee and would return to work within a short time after 19th September 2014 and she told the Tribunal that the claimant’s job was kept open for him. RM did not contact the claimant directly but did contact his Mother in relation to his not returning to work after 19th September. RM wrote a letter to the claimant on 30th September 2014 asking him to put his resignation in writing and told the Tribunal that she did this before receiving the letter dated 29th September from the claimant’s solicitor in which it was stated that the claimant believed he had been dismissed. The respondent did not reply to the solicitor’s letter of 29th September.
JO’N who is an employee of the respondent told the Tribunal that he could hear the heated conversation between JM and the claimant but he could not recall what was said. He could, however, recall what was not said and told the Tribunal that JM did not say “F--- Off and don’t come back” or “I’ll knock your head off”. JO’N was standing inside the door of one building with machines operating and JM and the claimant were standing inside the door of another building opposite across a short alley way during the conversation between JM and the claimant.
It was the respondent’s position that the claimant had never been dismissed but that he had left of his own volition.
RM confirmed that the claimant was not paid in respect of minimum notice.
Determination:
This case essentially turns on what occurred at the Workplace on the 19th September 2014 in the exchange between the Claimant and Mr J.M Managing Director of the Respondent Company. It is the Claimant’s position that he was dismissed and the Respondent’s case that there was no termination of employment and that, notwithstanding the Claimant’s alleged assertion that he would not work for the Respondent any longer, Mr J.M fully expected to see the Claimant back at work the following Monday.
What is common case is that the exchange between the Claimant and Mr JM was a heated one, and, indeed, the Tribunal doubts that either retains a clear recollection of what was or was not said in temper. Only the Claimant and Mr J.M, the Respondent’s Managing Director, know precisely what happened during that exchange. Other witnesses only heard snatches of the exchange.
On balance the Tribunal is satisfied that following the exchange on the 19th September 2014 the Claimant truly believed himself to have been dismissed. All of his subsequent actions speak to this.
In comparison, the subsequent actions and, indeed, inaction of the Respondent does not support the contention of its principal witnesses that the Claimant remained in the Respondent’s employment for weeks subsequent to the 19th September 2014. The Tribunal found the Respondent’s principal witness’s evidence to lack credibility.
The Respondent could not have been in any doubt on the 19th September or, at the latest, by the 29th September that the Claimant’s employment with the Respondent was terminated. Indeed, no reply was made to the letter from the Claimant’s Solicitor of the 29th September 2014 where in it was clearly stated that the Claimant had been dismissed. The Tribunal is not convinced that the letter from the Respondent of the 30th September was sent prior to the receipt of the letter of the 29th September from the Claimant’s Solicitor; the letter of the 30th September appears to the Tribunal, given its timing, in particular, to represent an effort by the Respondent to “mend its hand”.
It is the Tribunal’s opinion that, even if the Respondent did not dismiss the Claimant it was aware that the Claimant believed he had been dismissed. In light of the evidence heard by the Tribunal, this would have been a reasonable conclusion for the Claimant to reach. No effort was made before 30th September to disabuse the Claimant of this belief. The onus was on the Respondent to communicate clearly with its employee.
The accusation by Mr J.M during the exchange with the Claimant on the 19th September that he was responsible for his own brother’s serious workplace injury in the previous week, his request that the Claimant leave his work boots behind him when leaving the premises and the general ill-tempered, angry and “spiteful” (to use his own phrase) response of Mr J.M are far more consistent with the Claimant’s evidence that his employment was terminated. The Tribunal heard no meaningful evidence to support the Respondent’s contention that the Claimant remained in its employment until November 2014 (per P45)
The Tribunal holds that the Claimant was unfairly dismissed on the 19th September 2014 and awards him €24,000.00 by way of compensation under the Unfair Dismissals Acts, 1977 to 2007.
The Claimant is also entitled to the sum of €2,496.00 in respect of Notice Pay under the Minimum Notice and Terms of employment Act 1973 and this sum is awarded to the Claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)