EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Louis Finegan - claimant UD749/2012
Phonewatch Limited - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr C. Lucey
Ms M. Mulcahy
heard this claim at Dublin on 29th August 2013 and 10th March 2014 and 11th March 2014
Claimant: In person
Respondent: Ms Mary Fay B L instructed by Arthur Cox, Solicitors, Earlsfort Centre,
Earlsfort Terrace, Dublin 2
Summary of the case:
The respondent provides phone watch services to the general public and other customers. It has a number of departments and sections and the events in this case mainly occurred within its customer service sector and its human resource department. A customer service manager who was familiar with the claimant outlined his involvement with this case up to March 2011. The claimant was dismissed some eight months later.
With the aid of a large volume of documents this manager commenced his evidence highlighting a clause in what he believed was the claimant’s terms and conditions of employment with the company. That clause read in part as follows: The normal hours of work for members of the Installation Team, the Sales Team and the Administration team amounts to 39 hours per week with a six day (Monday to Saturday inclusive) liability. This witness stated that this clause applied to the claimant as he formed part of the administration team. The claimant joined the customer support team in 2008. Treating Saturday as a working day came into effect in early 2010. That involved staff reporting for work on that day once every nine/ten Saturdays.
There followed a series of correspondences and meetings between this witness and the claimant relating to this Saturday arrangement. Despite working on a voluntary basis some Saturdays prior to this new arrangement, the claimant immediately resisted and challenged his participation in it when the new arrangement came into effect. The claimant maintained that he never signed up for that arrangement and that his own terms and conditions of employment confined his working week from Monday to Friday. The claimant was rostered for duties on Saturday 27 March 2010 and he was reminded of that by his team leader some four days earlier. A meeting was also held on this issue with the claimant just prior to that working day. The claimant did not appear for work on 27 March 2010.
The witness met the claimant on 31 March and discussed this development with him and then issued him with a verbal warning (confirmed in writing) for misconduct on 7 April. The same scenario developed in June when the claimant failed to report for work on Saturday 19 June. The witness issued another written warning to him for misconduct. This situation was repeated when the claimant again did not show up for work on Saturday 28 August but this time the witness issued the claimant with a written warning for gross misconduct A fourth incident of this kind emerged when there was another no show by the claimant for his rostered day of Saturday 20 November. In a letter dated 14 January 2011 the witness told the claimant that the human resource department confirmed that there was not a signed copy of his contract of employment on his personnel file.
No disciplinary sanction issued on this occasion and the claimant was invited to follow the grievance procedure or to inform this manager of any suggestions to resolve this issue about working on Saturdays. Around that time the claimant served on the respondent a High Court Plenary summons regarding his employment situation and status. He also activated the grievance procedure in late February 2011. The grievance and disciplinary procedures were conducted as two separate processes. An independent line manager (PM) was appointed to hear the claimant’s grievance but the claimant did not pursue the grievance. It was the claimant’s case that PM was a friend of the customer service manager. It was put to the witness in cross-examination that staff members were previously dismissed for searching the premises but the witness did not have knowledge of this and stated that the personnel files are kept in a locked cabinet. It was the claimant’s case that another member of staff was able to inform the claimant of something he could only have known about the claimant by accessing the claimant’s file.
The Personnel Manager at the time of the events stated that when the claimant was unable to continue in his role as field service engineer, an alternative role was offered and the claimant was informed that the hours would be as per the customer support rota. The claimant did not raise with her at that time that he held an amended contract in the previous years of his employment. It was the claimant’s case that he no reason to query anything about his contract until a Saturday rota was introduced in 2010 and then he was told that his contract was not to be found.
The now Customer Care Manager stated that as part of the role she held in October 1996 she had written to the claimant stating that a recent update of personnel files showed that no contract sign off existed on the claimant’s file. The witness had no recollection of then receiving a copy of a contract with handwritten notes from the claimant. If she had received such a contract with amendments the matter would have been brought to a higher level, as she did not have the authority to accept amendments to contracts. It was put to the witness in cross-examination that the claimant had made amendments to the original contract in 1994 and returned it and that he had also made amendments to the contract provided in 1996.
The Chief Operations Manager became involved in the disciplinary process when it became more appropriate for someone more senior to be brought in as decision-maker. Following a written invitation to the claimant to attend a disciplinary meeting on 29April 2011 the claimant responded with a reminder that he had invoked the grievance procedure but the witness replied that there were two separate processes. The claimant stated that he would not attend the meeting and a decision was made in his absence. A letter dated 9 May 2011 informed the claimant that the conclusion reached was that the original contract included Saturdays and also that the claimant had received amended terms and conditions when he moved to the customer service role. A finding of gross misconduct for breach of contract was made and the claimant was issued with a final written warning. The claimant was informed that if he failed to attend for work on 25 June 2011 it could lead to disciplinary action leading up to and including dismissal. The claimant did not appeal the decision to issue a final written warning.
On 23 June 2011 the claimant enquired if overtime would be paid for Saturday work and it was confirmed to him in writing that overtime was not paid but that he would receive time and a half in lieu. The claimant failed to attend for work on 25 June 2011.
The claimant attended a disciplinary meeting with the witness on 3 August 2011. This was the first meeting at which the claimant engaged. A record of this meeting was opened to the Tribunal. The claimant raised the issue that he had returned an original contract with amendments and he outlined how he had returned the amended contract. He also stated that the six day liability was not outlined when he was moving from the field engineer role to the customer service role. The claimant disagreed at the meeting that he had accepted new terms and conditions associated with this role. The claimant was to search for additional documents he thought he had at home and a two-week adjournment was given to allow the claimant to submit these. In the latter part of August the claimant confirmed that he would not be submitting further documents.
A letter of dismissal subsequently issued to the claimant dated 30 August 2011 stating the finding that it was an unreasonable refusal by him and a breach of contract that he had not attended for work on 25 June 2011. The claimant was provided with eight weeks notice with garden leave. Other alternative sanctions could not be applied as the six-day rota applied to all departments and the claimant was not medically fit to return to work as a field engineer. It was the company’s case that the claimant’s issues with working Saturdays had been explored thoroughly such as investigating public transport timetables and offering flexibility in terms of starting later on Saturdays. The Chief Operations Manager outlined that working conditions for Saturday work had changed in 2010 as a result of a customer need to strengthen weekend support hours. It was determined that it was necessary to invoke a six day rota and this was negotiated with the trade union and with the agreement of staff to a day off in lieu. The claimant stated that he was not a member of a union and was informed of the unilateral change. In addition it was the claimant’s case that the contract did not allow for time in lieu. He also had an issue with the extra cost of attending on Saturdays. Despite this it was the claimant’s case that he emailed the company within a day of his dismissal to say that he would work to his contract but the company did not recollect receiving such an email.
The Chief Executive heard the claimant’s appeal. His role as an appeals officer is not to re-try the process but to ensure the company has not erred in any way in relation to the process undertaken nor any error of fact made or overlooked. The written findings of the Chief Executive were read into the record in detail including the finding that the transfer of the claimant to a customer service role in May 2008 amended his terms and conditions and that the contract allowed for a six day liability. The conclusion he reached was that it was reasonable of the company to expect the claimant to attend for work and it was unreasonable of the claimant to refuse and that trust and confidence in the claimant was lost. Notwithstanding the findings he approached the claimant to explore what it would take for him to return to work with an understanding of the rota as the company viewed it. The claimant told him he would not be in a position to return as matters had gone too far. The claimant was informed that the decision to dismiss was upheld.
In reply to questions from the Tribunal, the claimant stated that due to feeling unwell he was unable to continue with his role as a field engineer due to dizziness and although his doctor considered him fit to return to work he decided it was better not to return to a driving role. The company sent him to a company doctor and the report stated that the claimant was suffering from an illness but no diagnosis was made.
The Tribunal finds that the letter of May 2008 altered the claimant’s conditions and was accepted by him therefore negating anything that he previously thought or understood to be the case. The company was within its contractual rights to ask the claimant to work occasional Saturday hours as part of his working week and the company made reasonable efforts to offer facilitations. The company proved themselves most reluctant to take the ultimate sanction of dismissal. In all of the circumstances this dismissal has not been shown to be unfair.
Sealed with the Seal of the
Employment Appeals Tribunal