EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
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. V. Gates BL
Members: Mr. D. Peakin
Mr. M. O'Reilly
heard this case in Dublin on 7 October 2013
Mr. Gavan Mackay,
Spelman Callaghan, Solicitors,
Ms. Suzanne White,
Drinan Enterprise Centre,
Swords Enterprise Park,
The determination of the Tribunal was as follows:-
Claims were lodged under unfair dismissal and minimum notice legislation in respect of the employment by the respondent of an alarm installer who had worked for the said employer from June 2006 to May 2012.
The first event alleged to be material to the case was that on 6 March 2012 the claimant was notified that he was to attend a meeting with the respondent’s directors. However, it was denied that he was told that the meeting would be a disciplinary one or what could be the result of the meeting.
On 7 March 2012 the meeting took place. The claimant was told that a customer had been dissatisfied with his work in respect of the location of panic buttons. It was alleged that the claimant was told that he would be summarily dismissed without a reference if he did not resign following which he would receive a payment and a reference. Once the meeting ended the claimant was given a resignation letter prepared for him by the respondent.
However, in a letter dated 12 March 2012 the claimant appealed against what had happened and the claimant was allowed to return to work for the respondent. Notwithstanding, the claimant was promptly told that there would be a disciplinary investigation and on 4 April 2012 he was dismissed. In a letter dated 12 April 2012 the claimant appealed against this. The respondent acceded to the claimant’s request for an appeal although the respondent took the stance that it was gross misconduct to mis-position a panic alarm button.
The decision to end the claimant’s employment was upheld after a 10 May 2012 meeting.
It was contended that the disciplinary procedures of the respondent had not been complied with and that, as consideration seemed not to have been given to any lesser penalty, the sanction of dismissal was excessive and unfair in all the circumstances of the case.
It was alleged that there had been a determined pre-set agenda to dismiss the claimant without regard for his rights.
The respondent’s position was that the meeting between its directors and the claimant on 7 March 2012 was only to cast light on the circumstances surrounding a complaint made about the claimant and to hear the claimant’s point of view. The claimant admitted having mis-positioned panic buttons at four locations. In addition, he asked a customer to lie on his behalf.
However, the respondent denied having told the claimant to resign or be dismissed and, in fact, alleged that the claimant had stated that he himself wished to leave the respondent.
The claimant could not be dissuaded from ending his employment whereupon the respondent did tell him that it would require him to leave back to the respondent’s premises the respondent’s van and all tools that he had. At this time, the claimant’s resignation was requested in writing whereupon the claimant asked that the respondent type out something for him to sign. This was duly done.
Subsequently, the respondent got a letter (dated 12 March 2012) from the claimant’s legal representative retracting the claimant’s resignation and declaring that the claimant was both “willing and available to continue working”.
On 15 March 2012 the respondent wrote back stating that the claimant was welcome to return. However, it was also stated that the respondent’s disciplinary procedure would be used to address the claimant’s mis-positioning of panic alarm buttons on clients’ premises.
The claimant was asked to attend an investigatory meeting on 28 March 2012. On 4 April 2012 the claimant attended a meeting and got a letter detailing the result of the investigation and telling him that his employment was at an end because his actions on 29 February had been found to constitute gross misconduct.
An appeal against the dismissal was brought that month. However, the claimant acknowledged that he had not failed to comprehend the directions he had been given both by BG (a contractor) and by his worksheet. He also confirmed that his file contained a warning already received. The decision to terminate the claimant’s employment was upheld.
In summary, the respondent’s case was that the claimant had been guilty of gross misconduct. It was submitted that it was specifically stated in the respondent’s disciplinary code that it was gross misconduct to be guilty of ‘any serious negligence which may cause unacceptable loss, damage or injury to (the respondent) and our clients’. The accusation against the respondent that it had had a predisposition to dismiss the claimant was rejected.
The Tribunal heard sworn testimony from PM and DM (both directors of the respondent company) and from the claimant. From the evidence adduced by both parties, it appears that the claimant failed to install panic buttons in accordance with specifications and did so, not through negligence, but in the genuine belief that the specifications for that particular job required alteration. The claimant’s error was compounded by the fact that, whilst he was given the opportunity by the client to rectify the problem, he failed to do so expeditiously and failed to inform the company of his mistake. However, given that the claimant was in the respondent’s employment for a period of six years, albeit with some, but not significant, previous work-related issues, the Tribunal is of the opinion that, whilst disciplinary action was warranted, the claimant’s actions did not amount to gross misconduct warranting dismissal.
Accordingly, the Tribunal allows the claim under the Unfair Dismissals Acts, 1977 to 2007, and, taking into account the level of effort of the claimant in mitigating his loss, awards compensation in the sum of €6,800.00.
In addition, as the claimant was found not to have been guilty of gross misconduct warranting summary dismissal, the claim lodged under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, succeeds and the Tribunal awards the claimant the sum of €1,200.00 (this amount being equivalent to four weeks’ gross pay at €300.00 per week) under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal