EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD342/2015
CLAIM OF:
Steven Davern
Against
MD HR Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr J. Flavin
heard this claim at Cork on 27th May 2016
Representation:
Claimant : Patricia Harney & Co. Solicitors, Shortcastle, Mallow, Co. Cork
Respondent : Carley & Connellan, Solicitors 10 Anglesea Street, Dublin 2
The determination of the Tribunal was as follows:-
The fact of dismissal was in dispute in this case.
Summary of Evidence
The claimant commenced employment with the respondent in May 2008 as a warehouse operator working on the night shift. His duties included loading and unloading trucks. The claimant’s family had a history of employment with the respondent and during his early years with the company his brother had been his supervisor. The claimant had walked out of the workplace in May 2012 when he had been reprimanded for work related issues by his supervisor/brother. His brother got him to return to work and he was subjected to a disciplinary sanction by the respondent. His brother’s employment was subsequently terminated and another employee became the supervisor.
An exchange occurred between the claimant and the night supervisor (NS) on 5 March 2015. It was the claimant’s position that when he went to the office towards the end of his shift at around 6.30am he was annoyed to find that the last truck to be loaded had not been allocated to another employee (AE), who had finished work earlier and gone home. He asked NS why the docket had been left for him. NS told the claimant to clock out and go home if he was not prepared to carry out his duties. The claimant took the docket to load the truck and told NS not to be so smart.
NS provided a written statement on the incident to the depot manager as he felt the claimant had been aggressive, but not “roughly aggressive”, and pointed his finger at him in a disrespectful manner. NS’s evidence to the Tribunal was that this was the one and only incident he ever had had with the claimant and that his working relationship with him had been good. The report also contained a complaint that the claimant had left a forklift in a dangerous position. In cross-examination NS told the Tribunal that he had not established that it was the claimant who had left the forklift in a dangerous position and that in theory it could have been someone else had left it there. He further told the Tribunal that the claimant had only pointed his finger at him once.
The depot manager made the director aware of the incident on or around 12 March 2015 and asked him to deal with it. On Friday morning, 13 March 2015, the director met with the claimant to get his version of the 5 March incident. The claimant‘s position was that when the director put the allegations to him he denied that he had been aggressive towards NS or had pointed his finger at him. However, the director continued to put the allegations to him over and over again and the meeting lasted an hour. The claimant felt harassed. Finally, when the claimant asked for the outcome of the meeting as he had to take his sister’s children to school, the director told him, “Get the f--- out of my office. You are fired”. The claimant concluded he had been dismissed. He took legal advice. On 18 March he contacted the respondent seeking his P45. He told the Tribunal that he wanted his P45 for Social Welfare. In rejecting that he left the employment the claimant’s position was that he liked his job, got on well with his colleagues and needed the wages to repay his car loan and cover other costs. However, he felt that he was being unfairly singled out and that he had been treated differently by the director subsequent to his brother’s dismissal by the respondent.
The director’s version of the meeting of 13 March was that the claimant became very animated when the allegations were put to him. The claimant wanted to have NS called to the meeting so that he could verify his position on these issues but the director did not accede to this request. The director accepted that it was a long meeting. He read NS’s report of the incident a few time; he was informing himself as he went along and he was also setting up the laptop to show the forklift. The meeting ended with the claimant telling him: “You can f--- your job” and as he was leaving the claimant added, “I’ll have one coming back at you.” The director denied that he told the claimant that he was fired. The claimant was a good worker and it is hard to get someone to work night shifts; members of his family had helped build the company. The director concluded it was the “end of the line” when the claimant phoned seeking his P45 on 18 March 2015. He described the claimant as a great worker, full of energy and an essential part of the night shift team. The respondent had no reason to dismiss him.
Determination
The Tribunal must first determine whether the meeting on 13 March 2015 culminated in a dismissal by the respondent or a resignation by the claimant. The director’s position was that the meeting was to get the claimant’s version of the problems management had with him, in particular relating to the incidents that occurred on 5 March 2015 as reported by NS. The claimant denied the allegations put to him by the director and wanted to have NS called to verify his position. The Tribunal finds that there was no good reason for the meeting to continue for around an hour or for the director to repeatedly put the incidents to the claimant, in particular when he had denied them and when the director had not interviewed NS about his complaints. Having considered the evidence on the tenor of that meeting, the Tribunal by majority decision, accepts the claimant’s evidence as to how the meeting ended and finds that the claimant was dismissed by the director.
The issues that surround the letter of 18 March 2015 arose subsequent to the dismissal. The respondent’s representative contended that these issues go to the credibility of the claimant and his mother. In that letter, sent by the director to the claimant, the director set out his version of the meeting of 13 March 2015. The letter was sent after the claimant had requested his P45. Both the claimant and his mother claimed they had not received the registered letter. Subsequent to the hearing herein the respondent furnished the acknowledgement receipt for the registered letter signed by the claimant’s mother and this was also sent to the claimant’s representative. No further action was sought by the representatives. The Tribunal, having examined the acknowledgement receipt, considers it would be wholly inappropriate, unfair and wrong for it to draw any inference as to the claimant’s credibility from this document, in particular when it was signed by the claimant’s mother and the claimant’s representative did not have the opportunity to examine or cross-examine witnesses on it.
As there were no grounds to justify it, the Tribunal by majority finds the dismissal unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
The Tribunal considers compensation the appropriate remedy. The claimant was successful in his efforts at mitigation and suffered only 17 weeks’ loss. The clear evidence before the Tribunal was that the claimant’s gross pay was €343.56 per week. Thus, the Tribunal awards him compensation in the sum of € 5,840.52 under the Acts.
Subsection (2A) of the Unfair Dismissals Act 1977 Act as inserted by section 6 of the Unfair Dismissals (Amendment) Act 1993 provides that in calculating loss, payments to an employee under the Social Welfare Acts shall be disregarded.
The Tribunal awards the claimant the sum of €1,374.24, being the equivalent of four weeks’ pay, in lieu of notice, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. This claim was made during the hearing and was not objected to.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)