UD1369/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                     CASE NO.

William Noonan                                                                               UD1369/2014

-          Claimant

against

Michael O Leary

-          Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T. O' Mahony B.L.

Members:    Ms M. Sweeney

                    Mr D. McEvoy

heard this claim at Killarney on 17^th February 2016

                                           and 2^nd December 2016

Representation:

Claimant:         In person

Respondent:    Mr. Dan O'Connor, Terence F Casey & Co, Solicitors, 99 College Street,

                        Killarney, Co Kerr

The determination of the Tribunal was as follows:

Dismissal was in dispute.

Claimant’s Case:

The claimant commenced employment with the respondent in May 2009 and worked for him on a full time basis as a labourer and stonemason. In 2011 his weekly wage was cut from €500 to €420. It is not clear whether this deduction was due to a tax levy and/or the economic downturn. In any event it was accepted by the claimant. In 2012, on an instruction from the respondent the claimant undertook work using a teleporter that was inadequate and unsafe for the task in hand.                        

From 2013 on, the respondent treated him badly: he failed to pick him up for work on time and on the journey to work ignored him. On arriving at work the respondent took the other worker (OW who was a subcontractor and later became an independent contractor) away although the claimant needed him to help with a two-man task. The respondent had instructed the claimant to knock a wall but never sent him the promised help. It took the claimant a week to knock the wall and it took two men and a driver with a digger three weeks to rebuild it. All this was compounded by unwelcome personal comments passed by the respondent about the claimant himself, his girlfriend and his brother. In early March 2014 there was a unilateral cut in his hours with starting time being changed from 8.30am to 10 00am. The respondent refused to allow him to work the shorter hours over four days rather than five. In early March 2014 he was given terms and conditions of employment for the first time ever. These required him to have a safe pass. Time sheets were introduced. Around this time the respondent told him to find his own way to work.

On 14 March 2014, when he gave the respondent his time sheet at around 10.00am he was paid and left his place of work. The claimant’s position was that the respondent told him to go away and get his tax affairs sorted and then to return to work. On 20 March 2014 he received a letter from the respondent reprimanding him and reminding him that the use of headphones is only acceptable for sound suppression and not for recreational purposes.

During the morning of 21 March 2014 the claimant approached the respondent with his timesheet but the respondent would not pay him at that stage and did not want the timesheets until the following Monday. The claimant felt this was making his life impossible. The claimant denied swinging for the respondent, revving up his car and driving around the yard. He left the workplace and phoned later that day seeking his P45. The claimant did not return to work. The respondent got the Gardai involved. They advised the claimant to stay away from the respondent.

The claimant accepted that he told the respondent what to do with his job and then opted to leave the employment. He told the Tribunal that the reasons for ending his employment were the reduction in pay and hours and the personal slagging by the respondent.

Respondent’s Case:

The respondent is a builder and mainly worked for an American based businessman (AB) who had some residential properties in Ireland. AB had a “hands on” approach to his Irish business and comes to Ireland every six weeks to Ireland to oversee the work. AB also employed an architect and a horticulture instructor. These advised the respondent and they met regularly along with AB to discuss the projects. The respondent hired workers to carry out the work for AB.

The respondent has known the claimant and his extended family for many years and had employed a number of them over the years. He employed the claimant on a full-time basis from 2009 mainly to do external work. He was a very good worker. The respondent explained that the claimant did not normally drive to work but received lifts from work mates including OW. However, during the last two weeks of the claimant’s employment, the claimant drove his own van to work.

The respondent told the Tribunal that the claimant changed two to three weeks before he left his employment. There was a spell of very wet weather and there was little work to do. He could not justify the full-time hours. He discussed this with the horticulture instructor and AB and they decided not to let anybody go but instead reduced everyone’s working hours, including his own. All the workers, including the claimant, knew this was a temporary measure until the weather improved. At this time the claimant requested a contract of employment which he received as well as timesheets. The claimant wanted to work the shorter hours over four days but in discussions with his advisors they decided that employees would attend work on a daily basis and the work would be assessed according to weather conditions. In his last two weeks at work the claimant was spreading sand. He was constantly wearing earphones and the respondent could not talk to him.  

In March 2014 the respondent was informed that the claimant had another job lined up. On 14 March 2014 the claimant gave him his timesheet around 10.00am and asked for his wages. When the respondent paid him, the claimant drove off in his van and did not return to work until the following Monday.

On Friday 21 March 2014, the claimant again asked for his wage cheque at around 10.40am but the respondent told him that he would give him his cheque at 5.00pm because he had left work the previous week when he had been paid. The claimant became irate and grabbed the respondent, pushed him against the wall, then got into his van and roared at the respondent that he wanted his P45 that evening. The claimant never returned to work and started the following Monday with another employer. The respondent’s position was that if the claimant had returned to work the following Monday he probably would have taken him back.

Determination:

Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 as:

“dismissal”, in relation to an employee, means—

(b)        the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

Thus, the onus is on the claimant to show that because of the employer’s conduct either he was entitled to leave the employment or it was reasonable for him to do so.

Having considered the evidence, it is clear that the relationship between the claimant and the respondent deteriorated in early March 2014. The Tribunal finds that the claimant left his employment on 21 March 2014 because of the heated situation that had arisen that morning and for which he was responsible. Accordingly, the circumstances of his leaving do not come within the definition of constructive dismissal. The claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.       

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________    

(CHAIRMAN)