EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Co Wicklow - claimant
EMPLOYER - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr J. Horan
Ms. N. Greene
heard this claim at Wicklow on 3rd April 2013 and at Dublin on 26th September 2013 and 27th September 2013.
The determination of the Tribunal was as follows:-
The respondent company owns a country manor house in Co. Wicklow. Mr. & Mrs K lived in the house and Mrs. K (PK) is ultimately in charge of household staff, security and upkeep of the house. The claimant was employed as a butler/valet/chauffeur and looked after security in this house. He commenced his employment contract in November 2006 and reported to PK. In PK’s absence the claimant was in charge of household staff, security and the upkeep of the house. The claimant resided in the basement of the house. Other staff employed in the manor house are BP, chef and a cleaning lady who works three to five mornings a week. Two secretaries are also employed, MW and FM. FM is secretary to PK. Those other staff resided elsewhere on the estate.
The claimant had the afternoon and evening of Sunday, 10th July 2011 off. He returned in the evening and at approximately 9.30 pm PK met him at the top of the stairs. The claimant appeared to be agitated and told her that BP was going to leave in about three weeks, that BP was not happy and needed more space. PK found this incident to be a little intimidating towards the end and it was not a pleasant encounter. The claimant kept repeating that BP needed more space and that PK had to give him more space. BP had been on holidays and was not due back until the following Wednesday. PK also had a concern that the claimant may have been intoxicated at this time. She told the claimant that she would take care of the matter and asked him to return to his apartment and that they would discuss it again the following morning.
PK was angry at first and then became somewhat more concerned. PK did not have a feeling of utter security any more. The claimant made her feel uncomfortable. She needed to have a high degree of trust in her employees, particularly one living in her house.
PK had to travel to Limerick on business the following Tuesday and decided to drive herself there instead of asking the claimant to drive her. She spoke to the claimant and told him to take some time off and get himself sorted. The claimant said he did not need to but PK responded that ‘it was not open for discussion and that he was to take the leave’. She was concerned that the claimant had problems and this was causing a change in his character.
On Wednesday, 13th July 2011 PK telephoned BP, who was on holidays, from Limerick and relayed to him what the claimant had said. She enquired if he was unhappy and was going to leave. BP denied this and said he had never spoken to the claimant about leaving.
While in Limerick PK sought advice from KC, HR Manager of the respondent company.
BP is chef and had worked for the respondent for approximately two years. He had a good relationship with the claimant and regarded him highly. They worked well together. In July 2011 everyone in the household had been under stress as Mr. K was quite ill. The claimant was shocked to receive a telephone call from PK on 13th July 2011 enquiring if he was leaving. He had no intention of leaving his job. He subsequently furnished a statement to KC. Following the claimant’s return to the house on 27th July 2011 BP contended that the claimant was agitated. He made comments about FM and said he wanted to sue her. He kept repeating himself. BP was concerned for the claimant. He suggested the claimant go downstairs. He was fearful that the claimant would lose his job. While outside the front door the claimant became aggressive then pushed BP and slammed the door. The claimant used foul language. BP became nervous and telephoned FM.
DM, Global HR Director spoke to the claimant on 29th July 2011 in the manor house. MW had informed her of an incident occurring between BP and the claimant. As DM drove into the driveway to the house she met BP who said he was nervous and worried and was leaving the house while she spoke to the claimant. BP did not want his name to be mentioned during the course of the meeting. MW sat in on the meeting. DM told the claimant that serious allegations of verbal and physical abuse had been made against him. She enquired if something was going on his life and that people were worried about his behaviour. She explained to the claimant that due to the nature of the allegations and the fact that he lived in the house that while an investigation was being conducted he needed to live off site. DM told him that there was no problem with his work but that his behaviour had become erratic and the staff and management in the house were very concerned about him and their own personal safety while working with him. Alternative accommodation was arranged for the claimant and he was given a daily allowance. He was suspended on full pay.
After the August 2011 Bank Holiday KC, who reported to DM Global HR Director was informed that complaints by PK and BP had been made against the claimant. She carried out an investigation. She spoke to both PK and BP on 3rd August 2011 over the telephone, recorded what they said, typed up two statements and both statements were signed by the complainants.
By letter dated 4th August 2011, the claimant was invited to a disciplinary meeting. The statements taken from both PK and BP were enclosed with this letter. He attended this meeting with his legal representative on 17th August 2011. DM chaired the meeting and KC was also in attendance. The claimant gave his recollection of both events. All parties agreed that a breakdown of trust had occurred.
On the balance of probabilities DM believed the incidents had occurred. The claimant’s responses to the allegations were considered. Having evaluated the evidence and given the unique nature of the claimant’s position DM believed that she had no alternative but to terminate the claimant’s position. Thus the claimant’s employment was terminated with effect from 17th August 2011. In the normal course of business there would be an entitlement to appeal this decision to the President of the company, TK. As TK was a personal relation of PK, DM did not deem it appropriate to have such an appeal carried out internally. It was recommended that any appeal of this decision should be made through appropriate external bodies available to the claimant.
The claimant commenced employment in November 2006. His role was of butler/valet/ chauffeur. He received his contract of employment in May 2007. He always showed respect towards Mr. & Mrs. K and felt trusted by the family. He worked hand in hand with the Head Chef, BP and had a good working relationship with him. He found PK to be a very good employer.
On 10th July 2011 after he had prepared lunch for the owners and tidied up PK told him to take the afternoon off. He had lunch in town and returned later that evening.
He went upstairs to turn down the bedclothes and met PK. He told PK that he was concerned for BP. BP complained regularly to the claimant about his pay, his working hours and overtime. At no point during his conversation with PK was he aggressive or raised his voice and never said that BP was leaving. He then told PK he was calling his friend L who was head gardener for Lord N. He saw no need to apologise to PK. He had hoped they could speak again in the morning about BP. They both went their separate ways and he returned to his apartment located downstairs.
The next morning Mr. & Mrs. K were heading to Limerick for a week and the claimant was given time off and returned to his home abroad. His relationship with PK continued to be fine.
On 27th July 2011 the claimant drove PK for a hospital appointment in Dublin. He was concerned about a light on the dashboard of the car and following lunch he went to the local garage to have it seen to. He had some business to attend to in town and returned at 4.30 pm. He spoke to BP about FM, a secretary who worked in the house. She had been regularly interfering with the housekeeping and the gardeners. He asked BP for his support as he wanted to speak to PK about FM. A disagreement ensued between them. The following day ran as normal and he had coffee with BP in the morning.
On 29th July 2011 DM called him to a meeting. DM told him that an allegation had been made against him. He presumed it was FM who had made the allegation. DM was most concerned and wanted to investigate matters. She asked him to pack a bag and to hand back the car keys and credit cards. He had to leave the house but was not told where he was going. He asked if BP could drive him but this was refused. He was taken to a hotel nearby. He sought legal advice.
On 4th August 2011 a letter and statements taken from PK and BP were left for him at the reception in the hotel. Allegations were made against him in relation to his conduct, namely unacceptable verbal communication with PK and a physical assault against BP. He was very surprised to receive these statements. The claimant believed both statements to be overblown and that nothing had happened. He had spoken to PK in relation to his concerns that BP might leave and never believed he was intimidating towards PK. He thought BP had been railroaded into making a statement. He was invited to an investigatory meeting in relation to his conduct.
On 17th August 2011 the claimant attended this meeting together with his legal representative. DM and KC were also in attendance. The claimant was asked to give his recollection of both events. He had never used physical force against BP and confirmed that a disagreement had occurred between him and BP. He was shocked to be told that PK felt uncomfortable in his presence. He told DM that he was on medication during the month of July 2011 and was embarrassed about this. He was stressed and this was partly caused by FM and other personal issues.
All parties at that meeting agreed that a breakdown of trust had occurred.
The claimant’s employment was terminated on 17th August 2011.
Since the termination of the claimant’s employment he has been unable to secure alternative employment.
The Tribunal has carefully considered all of the evidence given over the three day hearing together with the documentation furnished and the legal submissions made.
The claimant came to work for the respondent in 2006. Specifically, he worked in the home of Mr. and Mrs. K. Initially he came to cover the Christmas period only. Following that period he was offered a contract of employment and formally commenced his role as Butler/Valet/Chauffeur/Security on the 1st May, 2007. The claimant came highly recommended, with a vast amount of experience, an unblemished working record and an excellent reputation. The reference from the agency that placed him with the respondent was outstanding. PK stated that she was very happy with his performance and that “he was a reassuring presence in the house” up and until the incident on the 10th July, 2011. PK’s trust in the claimant was damaged after that incident. PK stated that she couldn’t have somebody living in her home that she didn’t feel comfortable with. That is understandable. However, if PK genuinely felt uncomfortable having the claimant in her home why did she not report the matter until she was down in Limerick some time later? Her husband advised her to do this on the night of the incident.
On the 27th July, 2011 immediately following the incident with BP, BP called upstairs to FM to warn her that the claimant was very agitated and that agitation was focused on her. She called Limerick. Limerick then conference called BP and the three had a discussion about the situation. The Tribunal notes that BP did not take the matter any further nor did he state during that conversation on the 27th that he wanted to. KC called him and asked him to give an account of the events. The Tribunal is of the opinion that had KC not called BP to give an account of the incident the matter would not have gone any further.
On the 29th July DM came up from Limerick to investigate the BP incident only. The claimant was not told in advance that the meeting would be taking place, was not told he could have a representative with him, was not told what the complaint was or who had made it and was not told that there was another matter concerning PK pending. He was told that there had been an allegation of physical and verbal abuse but was not given any of the details.
There were some inconsistencies between DM’s meeting notes of the 29th July and the evidence she gave during the hearing. This needs to be addressed. She stated that she met BP that morning leaving the premises. She said that he was doing so because he felt “intimidated” by the claimant and that he felt that the claimant would “seek him out after the meeting”. BP did not corroborate that in his evidence. He said that he was embarrassed by the situation. He said that he and the claimant were the best of friends. He also stated that he didn’t want DM to disclose his name to the claimant. DM’s assessment of how BP felt about the entire situation did not tally with BP’s own evidence of how he felt. It is clear from the evidence adduced that DM didn’t actually ask BP how he felt about the incident. She came to her own conclusion based on the facts as she believed them to be.
Furthermore, at that meeting on the 29th the claimant stated that FM was giving him a hard time and was a bully. He told DM that he was on medication as a result of it. DM stated that she was there to try to get to the bottom of why the claimant was acting out of sorts and yet she didn’t see fit to interview FM. FM may not have been involved in the two incidents directly but there is no doubt that she was partly the cause of the claimant’s upset, rightly or wrongly. The claimant told DM that he was on medication. She did not make any real attempts to try and establish what medication he was on or for how long he was on it. In any event the claimant was suspended on full pay for one week and was removed from the house, still having no precise knowledge of the complaints.
The statements from PK and BP were furnished to the claimant at his hotel on the 4th August, 2011. Despite being delivered on the 4th August, BP’s statement is signed and dated the 7th August, 2011. PK’s statement did accurately reflect her evidence. The same cannot be said for BP. His evidence went much further than his statement. He suggested that the claimant slammed a door so hard that the door came off its hinges. He also suggested that a door handle was pulled off. None of these allegations were set out in his statement.
BP in that statement dated 7th August, 2011 stated, “BP had been aware that FM Administrator and DG, Head Gardener also encountered the claimant upon his return to the house and they were also concerned about his behaviour”. Despite that statement neither DM nor KC thought it prudent to interview FM or DG to establish the veracity of that statement.
A meeting was conducted on the 17th August, 2011. The purpose of that meeting was to hear the claimant’s responses to the allegations. Again, FM became a focal part of that meeting and still, neither DM nor KC thought it necessary to interview her to try and get to the bottom of the claimant’s upset. DM stated that the claimant had never lodged a complaint about FM however from the evidence it is clear that he did talk to her about his grievance with FM on the 27th July and again on the 17th August. Had she wanted to, she could have adopted the same approach to the claimant’s grievance as she did to BP’s alleged grievance. For reasons unknown, she chose not to.
Following that meeting and without any attempt to establish the veracity of the claimant’s case, he was dismissed by letter dated the 17th August. He was not afforded a right of appeal. The Tribunal takes on board the respondent’s reasons for not conducting the appeal. However, there was no reason why an independent third party could have been hired from outside the respondent’s companies to conduct a fair and impartial appeal. He was, as a result, forced to have his appeal heard by this Tribunal at great expense, which he might not have incurred had the company done so.
The respondent made the case that the trust had broken down between the parties. The claimant accepted that. The Tribunal accepts that. For that reason, even if they had found an impartial individual to conduct the appeal it wouldn’t have altered that fact. Whilst it may not have altered that fact, an appeal could have significantly altered the way in which the claimant’s role came to an end and his prospects of securing alternative employment. The claimant has been and will be faced with the prospect of possibly never working again. His age, his lack of experience in other fields and the absence of an appropriate reference are all factors working against him.
It is not for this Tribunal to try and predict the outcome of an appeal hearing. It is for this Tribunal to assess if any prejudice arises from not being afforded that right. The Tribunal finds that the claimant’s position was prejudiced.
In all the circumstances the Tribunal finds that the claimant was unfairly dismissed.
In assessing the appropriate award the Tribunal must assess two things:
- To what extent the claimant contributed to his own dismissal
- The efforts made to mitigate his loss.
Firstly, the claimant did have an incident with PK on the 10th July, 2011 and with BP on the 27th July, 2011. Whilst some of the finer details are in dispute the fact that these incidents took place is not. The claimant and the claimant alone was the author of these incidents.
Secondly, the claimant did have an opportunity to disclose to DM on the 29th July, 2011 that he was taking anti-depressants for approximately four weeks and the reasons why he was prescribed them. The claimant, up until the point he was prescribed this medication had an unblemished working history. It cannot be a coincidence that his behavioural change occurred exactly at the same time he commenced taking his medication. He should have informed DM of the situation and perhaps then an alternative course of action could have been explored.
The claimant has a legal obligation to mitigate his loss. Based on the evidence proffered the Tribunal is not satisfied that the claimant made attempts to do so until February, 2012. February, 2012 was the first time the claimant requested a reference from the respondent. The Tribunal accepts that the claimant did make attempts to secure similar employment from that point onwards. All of the claimant’s working life has been in domestic service. There are no agencies in Ireland who specialise in that area. There are a small number of agencies in the United Kingdom who do specialise in this area. The claimant stated that he has been black listed with those agencies due to the situation that led to this case. The Tribunal accepts that this is probably correct. He stated that when it became apparent that he was not going to secure similar employment he applied for a number of different positions. No documentary evidence was produced in relation to the claimant’s efforts to secure alternative employment. The Tribunal is satisfied that the claimant did make some efforts to secure similar and alternative employment however, is not satisfied he exhausted all possibilities.
As stated previously, the claimant’s prospects of securing employment are hampered by his age, his lack of experience in other fields and the absence of an appropriate reference. In that regard the Tribunal recommends that the respondent furnishes the claimant with an appropriate reference.
In all the circumstances the Tribunal awards the claimant the sum of €40,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal