EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD901/2015
RP341/2015
MN439/2015
CLAIM(S) OF:
Piotr Sokol
-claimant
against
Gar-Sec Systems Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr F. Dorgan
heard this claim at Thurles on 7th November 2016 and 8th February 2017
Representation:
Claimant: Mr. Thomas O’Donnell B.L. instructed by Mr. Michael Devlin, Michael Devlin Solicitors, 87 O'Brien Street, Tipperary Town, Co. Tipperary
Respondent: Mr Gary Kingston, Kingston & Co, Solicitors, Lower Gate Square, Cashel, Co Tipperary
At the outset of the hearing the claimant’s representative said they were withdrawing the claim for redundancy and perusing a case of Unfair Dismissal and Minimum Notice. It was the respondent’s case that the claimant resigned.
Claimant’s case:
The claimant gave evidence of coming to Ireland 11 years ago and joining the company directly as a technician. He began as a full time employee but was reduced to an average of 3 day week in 2008. He told the Tribunal that he got terms and conditions for the first time in February 2009 outlining that he would not be paid for the first 50 kilometres of travel.
He was notified by letter in February 2010 of the need to be to be available for five days of the week and was told he would receive notice of 48hours in advance of rostering. He was also told that any refusal to work would be deemed as a breach of company policy.
The claimant told the Tribunal that he was available for five days but the respondent did not adhere to their 48 hour rule. He would sometimes be told as late as midnight that he was required the next day. There was often a promise of work on a day that never happened, there was no compensation for that scenario and he could not engage in any other activity or alternative employment because of the respondent’s requirements.
He was required to register his mileage prior to and on return from journeys, in May 2014 advised that staff might be charged for the cleaning internally and externally of the vehicle and most correspondence regarding work was done by text message. Evidence of numerous text messages were given to the Tribunal.
In February 2015 he requested a day off to attend a funeral but was refused and told he had to go to Limerick. He was also told if he took the day off it would lead to disciplinary action.
The claimant said that the final straw was a request for him to drive to Maynooth for a two hour job in March 2015. He was told he would only get paid for his work time and not the travel to or from the location. He told the respondent that they needed to provide a driver and was told (by text message) to leave the keys under the back wheel of the van. He had forwarded his RP9 (dated 25th March) to the respondent at this time and stated that he knew” they would be after him”.
He was called to a disciplinary meeting on 31st March because of his refusal attend scheduled work and the falsification of timesheets. He was then suspended pending an investigation. He considered the situation ridiculous and told the respondent he no longer worked for them and was no longer giving them his time free time. He stated that all allegations being made against him were untrue. Two further meetings took place on April 3rd and April 9th both conducted by Director A which resolved nothing and he received a letter stating that the respondent accepted his resignation(with immediate effect) dated 22nd April 2015.
The claimant was recalled on the second day of hearing in relation to his request for annual leave. He stated that the request was as a result of his wish to attend a funeral in Poland. It was his case that he flagged the annual leave request with the company the previous week.
The claimant also gave evidence of his financial loss and his efforts to mitigate that loss since the employment ended.
Respondent’s Case:
Director A of the respondent company gave evidence oft the nature of the work carried out by the company which is mainly the supply but sometimes the design of integrated security systems. The company is based in Tipperary. Director A joined the company in 2006 at which time there were five employees but this later increased to ten employees. However, the number of employees reduced during the recessionary years.
The witness described the claimant’s work performance as exceptional and the best employee the company ever had. The claimant was meticulous in his work and could be difficult to work with. The two of them did not always agree on matters. Director A was not technical as her role entailed administration and accounts but often the claimant would “bombard” her with technical terms when she needed to discuss work matters with him. Director A found the claimant to be dismissive of her. This situation was the status quo for many years but the claimant was retained by the company due to his exceptional work performance.
Up until 2009 the company paid employees for any travel time past the first half hour. The company accountant met with the company directors and informed them that “steps had to be taken” due to the impact of the reduction in construction business. In addition staff were also placed on reduced working hours.
A meeting was held with staff and they were informed that the company could no longer afford to pay their travel time to the different client locations for the time being. Between 2009 and 2015 the claimant raised this issue with the company on several occasions however he never before refused to attend work until the 24th March he 2015. On that date the claimant had an issue with attending for work in Maynooth yet he had previously travelled to sites in Cork and Limerick. By that time the company’s workforces had reduced as a result of the economic recession and only the claimant and an apprentice were employed.
Director A outlined the events leading up the claimant’s resignation. A memo dated 6th February 2015 was opened to the Tribunal. Director A gave evidence that the claimant “gave her trouble all day” on that date and that he expected everything to be perfect on site. When things did not go well on site the claimant had a certain tone to his voice. Director A observed that the claimant seemed to have an issue with her and spoke to her differently than he did to her father who was her co-director.
A further memo dated 18th February 2015 was opened to the Tribunal. The main contractor wanted the claimant to complete the work on site. However, the claimant protested that the doors on site would not be ready and also that there was not enough time allocated to complete the work. Director A told the claimant that if he did not complete the work the main contractor would not sign off on payment.
A further issue arose around the claimant’s request for annual leave on a particular day which Director A had to refuse and she reiterated to the claimant that the work had to be finished. A number of text messages between the parties around this issue were opened to the Tribunal. The claimant was informed that if he did not arrive for work the matter could result in a disciplinary meeting.
On the 25th February 2015 there was a further issue when Director A refused to sign a social welfare form for the claimant stating that he was on reduced working hours. The days on the form were incorrect and in addition the claimant had omitted a day when he had worked.
Director A raised the issues she was having with her father and he agreed to speak with the claimant. However, she was later informed by her father that the claimant had denied what the main contractor had taken issue with him and he also denied that he had disrespected Director A. The claimant was informed that further negative feedback could lead to disciplinary action.
On the 6th March 2015 the claimant submitted two timesheets and alleged that he had not been paid for a day the previous week but this was not the case. Director A presumed the claimant was attempting to claim for travel time as he had once again put this on his timesheet. The claimant had previously been told that to do this was fraud. When she addressed this matter with the claimant on the 6th March 2015 he replied that his days with the company would soon be finished. Director A did not know what the claimant meant by this message.
An attempt was made to contact the claimant regarding a work issue. When this was unsuccessful Director A spoke with the apprentice on the 7th March 2015. He had informed her that the claimant had sent a text message the previous evening to the effect that the claimant’s days of working with the company would soon be over.
On the 10th March 2015 the claimant was working for the company. Director A met with him in the presence of the apprentice and informed the claimant that she and her co-director had met the previous day and that there were a number of concerns. Director A outlined to the claimant the issue the previous week around wages, the texts message stating he would no longer be working with the company and the fact that he did not answer his phone to her. Director A provided the claimant with a verbal warning and told him that the warning would remain on his file for six months. Subsequently, she attempted to ask the claimant to sign confirmation of the verbal warning but he would not do so. When the matter was also raised with the claimant by her co-director the claimant said he did not know what the verbal warning pertained to. Director A later attended at a client site and once again addressees the matter with the claimant.
The main contractor on the Maynooth site wanted cameras added to another room. Director A needed to discuss the equipment capabilities with the claimant and when doing so she mentioned that the work was in Maynooth. The claimant asked about travel time and she told him “we’ve been through this again and again”. However, she queried the matter with her father who in turn decided he would speak to the accountant to see if the company was in a position to pay travel time again. The claimant contacted Director A on the 24th March and informed her he was not going to Maynooth the next day unless he was paid travel time. Director A said she had “enough of the nonsense” and asked him was he going to work the next day. The claimant told her he was no longer doing work for free for the company and that he no longer worked for the company.
On the 26th March a letter issued to the claimant asking him to attend a disciplinary meeting. Director A stated that even though the claimant had resigned she felt she “should still follow procedures”. On the 27th March the company received a redundancy claim form from the claimant.
Director A held three disciplinary meetings with the claimant in relation to his leaving his employment without notice, his refusal to attend work on the 25th March, his lack of contact with the company in recent weeks, the falsification of hours on timesheets and his behaviour and conduct. Initially the claimant was suspended without pay and subsequently paid during suspension up until the 22nd April- the date of the final disciplinary meeting. It was the company’s case that the claimant had terminated his own employment by refusing to attend for work. A letter dated 22nd April 2015 informed the claimant that the company regretfully confirmed its decision to accept his resignation, which he had tendered on the 24th March 2015, and that his employment was terminated with immediate effect.
In reply to questions from the Tribunal, Director A stated that it was after the third meeting she concluded that the claimant was resigning but she did not ask the claimant to retract his resignation. During the disciplinary meetings it became obvious that matters could not be resolved.
In response to whether or not she was the right person to conduct the disciplinary meeting given the issues the claimant had with her; she responded that in hindsight maybe she was not the right person but she thought they could resolve matters themselves.
The claimant’s colleague who was an apprentice at the time of these events gave evidence that the claimant was an “absolute genius” in terms of his work but that he had observed the claimant being abrupt and brash on site with electrical contractors. The same contractors sought to deal with the witness instead of the claimant but this was not possible given that he was an apprentice.
The witness also gave evidence that he was present when the claimant was spoken to by Director A and given a verbal warning. He also confirmed that Director A attended at a client’s house in relation to that issue.
Director B gave evidence that he recalled a previous incident where the claimant had “walked off” but the employment had continued after this incident. Director B heard the appeal lodged by the claimant. He informed the claimant by letter dated 3rd July 2015 that having reviewed all of the information the resignation as tendered by the claimant still stood.
During cross-examination he confirmed that he and Director A’s positions are at the same level in the company structure. It was put to Director B that the company procedure states that someone at a different level will conduct the appeal. He stated that the presumption in the procedure is that he is the senior person.
The claimant’s resignation had consequences for the company including the loss of its most significant client contract. This resulted from an equipment failure in July 2015 when the company did not have any personnel to service the contract.
Determination:
The Tribunal has first considered the manner in which the claimant’s employment terminated. Was it by resignation or a dismissal by the respondent employer?
The Tribunal is satisfied that the claimant did not resign his employment. There is little doubt but that the claimant was dissatisfied in his employment and gave indications that he might move on and, indeed, may well have sought to improve his circumstances and terms by communicating to the respondent that it might lose him. The Tribunal does not however, accept that Director A believed that the claimant had resigned on the 24th March 2015. Indeed, in her evidence, she professed herself to be somewhat at a loss as to exactly what the claimant intended when she spoke to him on the 24th March 2015. Director A advised the Tribunal that she did not know whether to take him at his word or not when he said he was no longer working for the respondent.
The manner in which matters proceeded after the 24th March make it abundantly clear that the claimant had not terminated his employment without notice, as suggested.
- The respondent suspended the claimant without pay on the 26th March 2015 which was after his alleged resignation
- How could the respondent conduct a disciplinary process in circumstances where it believed that the claimant had resigned on the 24th March 2015 and was no longer an employee?
- Why would the claimant engage in a disciplinary process if he were no longer an employee of the respondent?
The actions of the respondent were completely incompatible with its assertion that it believed that the claimant to have resigned without notice on the 24th March 2015
Indeed, the Tribunal heard evidence from Director B that there was a previous occasion where the claimant walked off site throwing keys to him in an apparent act of resignation yet this seems not to have been considered a resignation but, perhaps, a not untypical emotional response.
Having gone through a disciplinary process it was completely disingenuous of the respondent to reply on a resignation alleged to have occurred on the 24th March 2015. The entire tenor of the three disciplinary meetings and the manner of the claimant’s engagement in these could have left the respondent under no doubt but that the claimant still considered himself to be an employee of the respondent and not to have resigned. Indeed, in the first of the three disciplinary meetings in April 2015 the claimant made it abundantly clear that he did not leave his employment.
The effects of the recession were felt by both claimant and respondent alike and it was an extremely difficult time for both employees co-operated with the respondent in accepting what was envisaged to be temporary reduction in hours and the cancellation of payment for travel time. Director A in her evidence confirmed that it was envisaged that the travel time issues would be revisited as circumstances improved in the business and, indeed when she spoke with the claimant on the 24th March 2015 she advised him that she would raise the issue again with her father and Co-Director. Director A spoke with her Co-Director to see if it might be viable to start paying again. Clearly the loss of travel time payment was an issue for the claimant and while he co-operated with the changes necessary for the survival of the business, found this a difficult pill to swallow particularly when he was obliged to travel long distances to work sites.
Economic and related pressures weighed heavily on both management and employees and the Tribunal is satisfied that the claimant did not always respond well and could be intolerant and dismissive of others. His considerable skill around his work made him an asset to the respondent but there were aspects of his personality that were clearly challenging and the Tribunal accepts the evidence of Director A that he did not show her the respect to which she was entitled as a director of the respondent company.
It is the Tribunal’s belief that Director A arrived at a point where she was no longer prepared to tolerate aspects of the claimant’s conduct and was determined to take better control of the situation. While she is to be commended for stepping up to the challenge, the Tribunal believes that the manner in which issues were handled left the claimant at an unfair disadvantage. Indeed, the Tribunal has a strong sense that it was predetermined before the disciplinary process commenced that the claimant’s position in the company was no longer tenable. It is the Tribunal’s opinion that the respondent had assessed that, while the loss of the claimant would leave a significant skills defect within the company, the potential damage that might occur to relationships generally were the claimant to remain in the company would be more detrimental in the long run.
The entire disciplinary process was fundamentally flawed from start to finish and culminated in the dismissal of the claimant; though the respondent sought to characterise his departure from the company as a resignation it was wholly inappropriate for Director A to conduct the disciplinary process. The process was a disciplinary one and never designed to achieve the meeting of minds which she professes to have been the objective of the exercise. The outcome was not a fair one in all of the circumstances. The claimant, however, has to be seen as contributing somewhat to the final outcome by virtue of his own approach to dealing with issues in the workplace and his apparent failure to see how he might contribute to harmonious relations at work and in interactions with customers.
All considered and in finding that the claimant was unfairly dismissed the Tribunal is of the view that the appropriate award is €6,000 under the Unfair Dismissals Acts, 1977 to 2007.
Further an award of €1,784 is made under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)