EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD373/2015
CLAIM(S) OF:
Muhammad Waris Butt
- Claimant
Against
Topaz Bull Retail Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr G. Mc Auliffe
Mr C. Ryan
heard this claim at Dublin on 15th June 2016
and 24th August 2016
and 25th August 2016
Representation:
Claimant: In Person
Respondent: Ms. Mary Fay BL instructed by: Ms Deborah Delahunt, Arthur Cox, Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case:
The claimant was employed as a Sales Assistant in one of the respondent’s petrol stations from the 10th of March 2009 until his employment was terminated on the 13th of February 2015.
The Manager (AI) of the station the claimant was last employed gave evidence. The claimant has moved to the Parkway West station from a previous location 6-8 weeks prior to his dismissal. The move was agreed by both the claimant and the respondent company due to difficulties the claimant was experiencing with management on that site.
At first there were no issues with the claimant. After the first week the claimant requested more hours of work. AI replied no, telling the claimant the shop was not busy. AI told the Tribunal that he “got the feeling” the claimant did not want to work in the shop on his own. The claimant worked the 3pm to 11pm shift.
The Area Manager (DF) visited the premises on the 27th of November 2014. AI told the Tribunal that it seemed the claimant had some issues with DF. When DF arrived the claimant appeared to be standing around with his hands in his pockets, DF approached him. The claimant told DF he was working. DF and AI then went into the office.
AI told the Tribunal that he observed the claimant approaching a colleague (T) who was stacking shelves with new stock. The claimant asked T to swap duties with him and he, the claimant, would stack the shelves. AI went out of the office and approached the claimant asking him to go back behind the till. The claimant became very annoyed. DF came out of the office having observed the interaction between the claimant and AI. DF instructed both of them to go back into the office. Following a ten minute meeting the claimant was given a verbal warning, dated the 27th of November 2014, for his “Failure to fulfil job role (not following Managers instruction)”. AI attempted to hand this letter to the claimant when he had returned to work on the till but the claimant refused to accept it. The following day the claimant lodged a formal complaint against AI and DF. The complaint was investigated, a decision was issued, the claimant appealed the decision given and the decision was upheld.
In December 2014 the claimant requested certain days off. AI accommodated him but informed him that all staff had to give two weeks notice of any leave they required. On the 8th of December 2014 the claimant was working his evening shift. The claimant left a note for AI requesting two days off the following weekend.
The following day AI called the claimant in and again told him he, AI, required two weeks notice regarding leave requirements but AI told the claimant he would “try his best”. AI told the Tribunal that the claimant became very anxious saying he could not work those two days. AI again told the claimant he would look at the roster and get back to him. The Assistant Manager (NK) was present during this conversation. The claimant was not happy and would not leave the office. AI told the claimant he had to take over on the till as his shift had begun.
Later that day AI again spoke to the claimant in the office again telling him he would do his best regarding the two days off the claimant had requested. The claimant replied that he “would not work those days, you are taking this personal” and to “stop this nonsense”. AI told the Tribunal that he felt the conversation was going nowhere. The claimant left the office and went to ring HR. AI told the Tribunal he also rang HR and spoke to CE telling her what had occurred between him and the claimant.
Following this AI left the office and approached the claimant to call him aside. The Assistant Manager (NK) was also present nearby. AI asked NK to witness the conversation he was about to have with the claimant. AI said he again told the claimant that he would look at the roster and get back to him about the requested time off. The claimant raised his voice saying “you are taking it personal, you have to give me those days off, I gave you two weeks notice,” The claimant became very angry and his body language changed. The claimant moved closer to AI, AI lowered his head and asked the claimant more than five times to go back to the till. The claimant did not return to work on the till but made a phone call to the HR department instead. AI told the Tribunal that he felt threatened by the claimant and thought the claimant was going to hit him. AI left the premises and contacted HR informing them of what had occurred. The following day the claimant was suspended.
When put to him, AI refuted he had told the claimant when he commenced employment that he would be given extra hours when they were available. AI explained that any extra hours available were divided amongst all staff.
When asked by the claimant did he recall the claimant requesting a reference for the purposes of his immigration AI replied that he did and that he had informed the claimant that HR had to complete the more detailed version of the form compared to the one AI had completed for him. HR had the relevant personal details on file that were required.
When asked by the Tribunal why he had objected to the claimant swapping tasks with his colleague T, AI replied that he had given certain tasks to T to carry out for training purposes.
When put to him AI stated he had not his voice when talking to the claimant.
NK gave evidence. He explained that he had only worked a few of the six weeks the claimant had been employed in the Parkway West station and had not worked on a daily basis with him.
NK told the Tribunal that he was present on the 9th of December 2014 where an incident occurred between the claimant and the Manager, AI. On the 7th of January 2015 the respondent’s Performance Support Manager (BP) asked him to give his account of what occurred between the claimant and AI that day. NK explained that BP was the person requested by the respondent company to investigate the incident.
On cross-examination NK said he felt the claimant always wanted to get things “done by himself”. If the claimant was given a task to perform he would decide whether he would do it or not.
NK told the Tribunal that he felt the claimant was very threatening in his behaviour on the day in question.
When put to him that the claimant said to him “what’s happening here is not right” and he replied “there is nothing I can do I’m not in charge”, NK replied that he could not exactly remember but said that he had told the claimant to speak to AI.
When put to him he said it was up to the Manager how extra hours were allocated to staff members.
When asked by the Tribunal if he had his own business he replied he had but not at the time of this incident.
BP, the Performance Support Manager, who carried out the investigation gave evidence.
He wrote to the claimant on the 22nd of December 2014 requesting him to attend an investigation meeting on the 7th of January 2015 in respect of “allegations of inappropriate and aggressive behaviour and failure to follow a request”. BP told the Tribunal that he also had separate meetings with AI, NK and CE from the HR department.
At the investigation meeting BP gave the claimant a copy of the investigation report. The claimant raised a number of issues relating to NK which BP raised with NK after his meeting with the claimant.
BP told the Tribunal that following the meeting he submitted his report to CE in the HR department.
On cross-examination BP explained that his remit was to investigate the incident of the 9th of December 2014 only and not any other issues the claimant had raised at their meeting on the 7th of January 2015.
When asked by the Tribunal if he had included any recommendations with his report when he submitted it to CE, he replied that he had not.
NC, a Category Specialist, who held the disciplinary meeting with the claimant, gave evidence. He wrote to the claimant on the 20th of January 2015 to request his attendance at a disciplinary meeting to “review the charge of gross misconduct” on the grounds of “allegations that you behaved in an inappropriate and aggressive manner and failed to follow a reasonable request on the 9th of December 2014”. A copy of the company’s disciplinary procedure was enclosed with the letter.
NC told the Tribunal that he went to meet the claimant with an “open mind” and did not question the charge made against the claimant. NC told the Tribunal that copies of his notes of the meeting were sent to the claimant for him to confirm or not if these notes were accurate. The claimant had confirmed they were. At the meeting the claimant did raise other issues but NC said his remit was to deal with the incident on the 9th of December 2014.
On the 6th of February 2015 NC wrote to the claimant requesting in to attend another meeting on the 10th of February 2015. At this meeting the claimant was informed he was summarily dismissed. A letter to confirm the termination of the claimant’s employment was submitted to him on the 16th of February 2015.
On cross-examination NC explained that he had been informed by the HR department that he was “conducting a process on the grounds of gross misconduct.” When asked he said he had no copies of correspondence explaining the scope of his remit from the HR department to submit to the Tribunal.
NC again explained that his remit only related to the incident of the 9th of December 2014. He had no knowledge of any other issues / complaints the claimant had until he raised them at their meeting.
When asked NC said that he had consulted with HR before he made his decision to dismiss the claimant and they, HR, had advised him to meet the claimant face to face to inform him he was dismissed.
When asked by the Tribunal NC said that he had not pre-determined the issue before he had met with the claimant.
CE, the HR Field Advisor, gave evidence. She stated that the respondent company had followed all company procedures in this matter.
She explained that the claimant had filed a grievance against AI before the incident on the 9th of December 2014. She had investigated the matter thoroughly, met the claimant and AI separately and found there was no evidence of discrimination, victimisation of threatening behaviour. She wrote to the claimant on the 16th of December 2014 stating her findings that no further action was required.
When asked by the claimant if she had informed NC that he, the claimant, had told her he felt unsafe around AI, CE replied that the investigation into that matter had already taken place before the incident on the 9th of December and a finding into the matter had been issued.
When asked by the Tribunal who had decided the allegation against the claimant was gross misconduct CE replied it had been her Supervisor after she had discussed the matter with her. CE explained it had been her decision to suspend the claimant following the incident as “AI had been afraid to come to work”.
Claimant’s Case:
A former colleague of the claimant (TB) gave evidence. He told the Tribunal that he worked in another of the respondent’s stations and had been employed for over twelve years. He had attended two meetings with the claimant – the grievance meeting and the grievance appeal meeting regarding issues prior to the incident in question. TB told the Tribunal that he felt the investigation into the matter had been unfair, one-sided and was not carried out correctly.
When asked he explained that where he worked rosters were completed on a weekly basis and he had never had problems getting time off. He explained that in his experience there had been no issues with staff alternating duties during their shifts.
On cross-examination he agreed he had not attended any meetings with the claimant regarding the incident in question.
The claimant gave evidence. He explained that he had been working in another location and in agreement with management and having met with AI it was agreed he would move to the Parkway West station. The claimant told the Tribunal that when he originally met with AI he said he, AI, would try to give him extra hours. This was one of the reasons he moved. However, this changed around three weeks after he started working there.
There were a couple of incidents regarding rosters and hours. AI’s friends were given more hours than the claimant. When the claimant tried to discuss the issue with AI he, AI, “became a different person”. The claimant told the Tribunal that he did not want to cause trouble but just wanted the hours to be distributed fairly. He contacted CE regarding the issue.
Regarding the incident on the 9th of December 2014 the claimant said he had not been aggressive, AI had. He had spoken to AI in the office on four occasions that day. Firstly AI refused to give him the requested two days off, the second time AI said he could not promise. On the third occasion AI was very rude and told him to leave the office. The claimant contacted CE in the HR department and told her what had occurred. The claimant told the Tribunal that CE was already aware he was uncomfortable working around AI.
The claimant said that he had tried to raise the prior issue he had had with AI at the meetings with BP and NC but they would not discuss it.
The claimant gave evidence of his efforts to mitigate the loss of his earnings since the termination of his employment.
On cross-examination he refuted he had a problem with authority. He agreed he did not have a Monday to Friday shift agreement with the respondent company.
When put to him he said that he had never insisted he should get the two days he had requested off.
Note: All minutes and notes of meetings and letters referred to in this order were opened to the Tribunal and read into the Tribunal record.
Determination:
The Tribunal carefully considered the evidence adduced and the documents opened over the three days of this hearing.
The Tribunal finds the claimant was unfair dismissed in the circumstances and awards the sum of €5,000 (five thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)