UD1127/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1127/2015

CLAIM(S) OF:                                          

Richard Kelleher                                                              

against

Auto Exhausts & Windscreens Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. S. McNally

Members:   Mr. D. Hegarty

                   Mr O. Wills

heard this claim in Cork on 23 August 2016

Representation:

_______________

Claimant(s) :

Ms. Rachel O'Toole, Rachel O'Toole Solicitors, City Park House, 20/21 Sullivan's Quay, Cork

Respondent(s) :

Mr. Brian Hallissy BL instructed by McDermott Minehan & Company, Solicitors, 22 Washington Street, Cork

The determination of the Tribunal was as follows:-

The claimant was a mechanic/windscreen fitter for the respondent from June 1985 to his summary dismissal on 24 August 2015. It was alleged that he had been falsely and incorrectly accused of taking money for work that he had done on the respondent’s time and with the respondent’s materials.

Giving sworn testimony, KD (owner and director of the respondent) said that he had been an employee but had taken over after the previous owner became ill. He now had three employees since the claimant was dismissed.

In August 2015 KD sent the claimant and TN to Crosshaven to fit a windscreen. It was a two-man job. The claimant could then go home and start his summer holiday. KD said that the job should take a half-hour. However, KD subsequently heard TN claim that he had to do the job practically alone as the claimant had done a separate job for someone with the respondent’s materials. The claimant had equipment in his van. So TN did the requested work and the claimant did not.

KD asked TN for a written statement. The claimant went on holiday. A fortnight later KD spoke to the claimant inside a shutter door at the respondent’s garage and asked if he wanted his wife as a witness. KD told the claimant that he had taken “s**t” from him but would not stand for the claimant doing private work on the respondent’s time and with the respondent’s material. KD said that he had proof in TN’s statement.

The claimant admitted doing the work but denied having been paid for it. He said that he had done it so that the respondent would get more work. KD thought this was lies because the claimant had originally denied doing the job. He did not believe him. KD told the Tribunal that the respondent had no policy of doing jobs for free. Only KD could authorise that. KD believed the claimant was paid for the job.

The respondent had had a policy regarding “foxers”. KD had no problem. The respondent would get ten euro and the cost of the windscreen and the foxer was to be carried out by the employee outside of company time. Crosshaven was a job on the respondent’s time. The respondent could have got another job done by TN on that day if he had returned back to the base on time. The claimant was alleged to have received fifteen euro. The claimant made no payment to KD. He said it was done for free. A resin was injected in part of the windscreen glass to fill the crack. This would normally cost fifty euro. The claimant had profited from a job done of which KD had not known about. The claimant had used the respondent’s materials on company time.

KD said that he would not accept it and that it had been theft. The claimant tried to argue with him and that the respondent would have a lot of work. The claimant’s wife said it was an unfair dismissal. The claimant said he was going straight to a doctor. KD told the Tribunal that this had been an isolated incident of theft.

The first Monday after taking over (by KD) there was a timekeeping incident. The claimant had a history of being late for work.

KD had called in the claimant about the 08.30 start. The claimant said that he had to bring a daughter to school. The claimant had a company van at home. KD had kept talking to the claimant about timekeeping.

KD told the Tribunal that the claimant had an issue about KD buying the business. He did not think the claimant liked him being the boss. The claimant did not like KD telling him what to do.

Under cross-examination, KD was asked about the respondent’s disciplinary procedure and said it was “pretty informal”. It was put to KD that the claimant said he had got no warnings about timekeeping. KD replied: “He did.”

Regarding Crosshaven, KD said that the claimant had been stealing his materials, had been seen putting money in his wallet and had been doing an additional job with KD’s materials. Asked if dismissal had been proportionate, KD replied that he had been reasonable with the claimant but that enough was enough.

It was put to KD that there had been a lack of fair procedures. He conceded that he “was not used to it” but said that he “was not looking for an excuse to get rid of” the claimant.

Questioned by the Tribunal, KD said that an unofficial job had been done on the respondent’s time. The only thing that the claimant ultimately did not admit to was having received money.

Giving sworn testimony, TF said that he had started in 2014 as a windscreen fitter. At about 14.40 on a Friday afternoon, he and the claimant went to do work at Crosshaven. They were to replace a windscreen in a jeep. It was a two-man job. The customer was late for appointment. TF rang KD who rang the customer who was still to arrive. While waiting for the customer, the claimant was asked to look at a chip (in a windscreen).

The customer arrived. TF asked the claimant to help. The claimant was away nearly the full length of time. TF was on his own. They had to wire out the windscreen. The claimant helped.

TF thought the claimant was doing the (windscreen-) chip for someone he knew. He saw the claimant put fifteen euro in his wallet. He thought the claimant had got it for what he had done.

TF was in a bad mood and was being blamed for taking all day. He told KD that he had done all the work on his own.

TF was asked what he would do if someone asked to have a chip dealt with. TF replied that he would probably ring KD. The work was basically fifty euro every time. There was no process of doing work free.

TF had worked with the claimant for three or four months. He knew the policy on “foxing” i.e. to pay for the glass and to pay ten euro and to do the job on one’s own time. This job was worth about fifty euro.

When asked about claimant and his timekeeping and the 8.30 start, TF had wanted the claimant to be on time to get everything ready so they could leave the base at 8.30 and not 9.30. Late starts resulted in finishing late at the end of the work day.

Under cross-examination, TF said that it took thirty minutes to get to Crosshaven. The claimant started working for the man (RC) while waiting for the customer. When it was put to TF that the chip was less than a two-euro coin he replied that it was bigger. It tended to take about thirty minutes to fix a windscreen.

The claimant was senior to TF who was not in the job that long. They stayed about two hours. TF dropped the claimant home. KD asked why he took so long. TF told him and wrote out a statement on the request of KD.

Questioned by the Tribunal, TF said that he had arrived (in Crosshaven) at about 14.40 and the customer arrived at about 15.00 They were there five or ten minutes when the claimant was asked to have a look at a chip. TF told the claimant that it was a waste of time (i.e. too big). It took TF forty to fifty minutes to fix the arranged windscreen. He got back before 17.30. With two people it should taken a half-hour. After dropping the claimant home TF was “probably thirty or forty minutes late”.

TF repeated to the Tribunal that he had seen the claimant put fifteen euro in his wallet. TF said that the claimant had not been hiding this.

Asked if any other job had been lost, TF said there was probably work at the base. The claimant was going home early because he was going on holidays.

Giving sworn testimony, JD (KD’s father) said that he was a former policeman who had no direct involvement in KD’s business. On the claimant’s final day JD arrived before the claimant and his wife.

KD told the claimant that he had “taken an awful pile of s**t” from him. KD spoke about the job in Crosshaven and that he would not tolerate private sales done by employees on company time at company expense. The claimant denied having done any job outside of company time to KD. KD specified the job he had in mind and said that he had proof. The claimant accepted that the stone chip job was done but denied having been paid for it and said that the respondent could get more work as a result. KD ended the claimant’s employment. The claimant’s wife told the claimant that he now had KD where he wanted him – unfair dismissal.

Under cross-examination, JD said that KD had asked him to attend the disciplinary stage and be a witness. The claimant had had an opportunity to explain but was in denial. It all took about fifteen minutes. The claimant got every chance.

JD said that he had not got HR training at his constable level in the police.

Giving sworn testimony, RC said that he worked at Crosshaven. The claimant had come to fit a windscreen to another vehicle. The claimant said that RC’s own chipped windscreen was not really fixable but that he would put a drop of glue on it to stop the problem spreading. The respondent did all windscreen jobs at that Crosshaven location. The crack had not spread since. It was the size of a small ten cent coin.

Under cross-examination, RC said that he had met the claimant a few times. The claimant had done jobs for RC’s boss. RC and the claimant had not discussed money. It was a car-van that RC used for racing but was registered in the company name of his employer. RC did not say anything about payment and did not pay the claimant. The claimant and TF were there at least a half-hour. No money was talked about.

RC said that it was not up to him to hand out business.

Giving sworn testimony, the claimant said that he started in June 1985. They did gearboxes before getting into windscreens. He was a mechanic by trade. He got no warnings. He got on all right with KD.KD took over the business in 2015. The claimant’s wife told the claimant to keep his head down and keep working. KD said that things would have to change and that the employees would get contracts.

About timekeeping the claimant said that they would start late morning and work through lunch.

KD had never brought the claimant in on any disciplinary issue. The claimant got no verbal warnings. The claimant had to drop a child to school.

The respondent had done work for VX (a business in Crosshaven) previously. RC worked for VX. The claimant was sent to do a job there. (VX facilitated the respondent by allowing jobs to be carried out on vehicles at VX’s premises). He was told by KD that he could finish early and go on holiday. He got there at about 14.40. The customer was not there. TF rang KD about the delay. They were to wait. RC asked the claimant to look at a (windscreen) chip on his van. The claimant said that he could not fix it but would stop it spreading. Resin could be used. It was put in while TF was preparing the work they had been sent to do. TF dropped him home afterwards.

On 24 August the claimant drove to work with his wife. KD said he wanted a quick word. The claimant’s wife came in. KD said that he had had enough of the claimant’s “s**t”. The claimant said that the respondent would get work from them (the Crosshaven business) again. The claimant’s stuff had been removed from his company van. They were handed over to him. The claimant told KD that KD was wronging him.

The claimant’s wife rang Citizens Advice. The claimant got very little work for about six months but then got employment.

Under cross-examination, the claimant said that the windscreen repair kit came with a mirror. Glass fragments could be seen to be missing. Resin would be squeezed in. The respondent charged fifty euro for this.

The claimant said that he had not acted “out of the goodness of (his) heart” (by helping RC), he did it because “it would be good for business”. The claimant added that VX used to live across the road from him. The job took about ten minutes. He assisted TF with the job for the customer when the job required two men. He did not know what TF did after dropping him home. He would say it took about forty minutes but he was not calling TF a liar.

Asked if he would often do jobs out of the goodness of his heart, the claimant said that they would say: “Come back when you have a bigger problem.” He gave examples of times when the claimant worked for the respondent company before KD took over as a mechanic. They had often done work for VX’s Crosshaven marina before at one time or another.

The claimant maintained that he had not been paid for the RC job but acknowledged that he had initially denied doing the extra job at all.

The claimant told the Tribunal that he could not recall what his wife had said but he did accept that he had had difficulties with timekeeping. He and KD had never had an informal chat. He was possibly put out at first when KD took over. He told the Tribunal that he “could have been a bit sour”.

Giving sworn testimony, TK (the claimant’s wife) supported the claimant’s version of events.

Recalled to giving further sworn testimony, KD said that it had been because of the claimant’s holidays that all of the claimant’s tools had been taken out of his van and that KD’s “mind was not 100% made up”.

In further cross-examination it was put to KD that he had decided to dismiss someone with thirty years’ service. He said that the claimant had admitted doing the RC job (after initially not admitting it) and the claimant had been seen putting money in his wallet.

In closing statements, the claimant’s representative said that she relied on the evidence given. The respondent’s representative said that the claimant had admitted doing the RC job and that, even if the respondent’s procedures were not as good as they should have been, procedural defects did not render a dismissal unfair and there was definitely an element of contribution by the claimant to his own dismissal.

Determination:

The Tribunal did not consider the claimant guilty of gross misconduct which was not clearly defined to the claimant. It was not established to the Tribunal that the respondent had satisfactory disciplinary policy or procedures. There was no proper investigation or appeal process. It was not thought that there was a proper disciplinary process. It was felt that the claimant’s dismissal had been premeditated.

Having considered the claimant’s loss and whether the claimant contributed to his dismissal, the Tribunal unanimously deems it just and equitable, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, in all the circumstances of the case, to award the claimant compensation in the amount of €16,000.00 (sixteen thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)