EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Joseph Doris, - (claimant) UD507/2012
Thomas Lenihan, - (respondent)
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: Mr. P. O'Leary B L
Members: Ms A. Gaule
Mr. J. Dorney
heard this claim at Dublin on 1st November 2013 and 9th May 2014
Claimant(s) : Oliver Shanley & Co, Solicitors, 62/63 Academy Street,
Respondent(s) : O'Sullivan O'Dowd, Solicitors, 1 Blackhall View, Blackhall Place,
The determination of the Tribunal was as follows:
This case was heard in conjunction with UD562/2012 involving two claimants’ who were both dismissed for the same incident.
The respondent owns and operates a public house. Claimant D commenced employment in the pub as a bar man on 1st November, 2006. Both claimants’ were dismissed for gross misconduct on 1st December, 2011.
The respondent gave evidence in relation to the incident that led to the claimants’ dismissal and the Tribunal was shown CCTV footage which had been matched with audio recordings from one of the claimants’ mobile phone.
It was the respondent’s contention that he was assaulted by the claimants’ in the pub after the staff Christmas party and that his wife was present during this incident and was scared and upset. Furthermore, the respondent told the Tribunal that the claimants’ were verbally abusive towards the respondent. The respondent and his wife discussed the matter and decided that the respondent had no option but to dismiss the claimants’ and accordingly notified them of their dismissal by letter dated 1st December, 2011.
The claimants’ made a complaint to An Garda Siochana but no charges ever came from that complaint and the respondent also gave a statement and a copy of the CCTV footage to An Garda Siochana.
The respondent told the Tribunal that the claimants are now running a pub across the road from the respondent’s premises since it re-opened in May 2012. The claimants’ were also observed by the respondent going in and out of that pub while it was being renovated prior to re-opening.
The respondent was cross-examined on day two of the hearing and stated that he had approx. 4-6 units of alcohol on the night in question and indicated that the claimants’ had criticised the way he ran his business. According to the respondent claimant G assaulted him because he was asked to leave the premises. He said that claimant G elbowed him at the side of the head and pulled him to the ground. The respondent did not agree that claimant G was trying to diffuse the situation between the respondent and claimant D. It was stated by the respondent that claimant D assaulted the respondent’s wife on the night in question.
Both claimants’ returned to the premises the day after the incident on 30th November 2011. Claimant G asked the respondent for his P45. The respondent indicated that the claimant’s never gave him a chance to initiate fair procedures. They walked away from the respondent and offered no apology. Both claimants’ were dismissed by letter dated 1st December, 2011.
The respondent denied that the CCTV footage had been edited and indicated that a professional company had been hired to compile the video.
In re-examination, the respondent stated that he told the claimants’ they were fired when he asked them to leave the premises on the night in question.
In reply to the Tribunal, the respondent stated that he ordered the claimants’ to leave as a result of the scuffle.
Giving evidence, EL, wife of the respondent told the Tribunal that she worked in the pub carrying out administration and bar work. She worked with the claimants’ and stated that they were the two top barmen. On the night in question staff were invited back to the pub for drinks. Both claimants had had a lot to drink that night. According to EL, claimant D lunged at her husband, pushed EL away while claimant G tried to break it up. EL stated that the word “fired” had no meaning that night. Both claimants’ asked “are we fired”? As the scuffle progressed, claimant G also became aggressive towards the respondent. EL did not have any dealings with the claimants’ when they came into the pub the next day. EL prepared the dismissal letters and final wages due. EL stated she could not work with the claimants’ ever again as she was afraid of them.
Under cross-examination, EL stated that the respondent was not given the opportunity by the claimants to follow procedures. The date of termination was from 1st December, 2011 and not 29th November, 2011 as stated in the dismissal letter.
Claimant G told the Tribunal that on the night in question he was talking to the respondent about day to day operations. The respondent did not like what claimant G had to say and said “I can do this without you pair of c.. ts – get out”. Claimant G stated that he did not assault anyone. Claimant G assumed he was fired on the night in question. When claimant G went to the bar the next day, the respondent told him to “get the f...k out”. Claimant G stated he asked the respondent what the position was and was told it was “no longer tenable”.
Under cross-examination, claimant G stated that on the night in question he asked the respondent was he fired as the respondent was the first to mention dismissal. He said that although he had been in discussions with claimant D for a number of years about going into business together, he had no plans to leave the pub. Claimant G indicated that the respondent discovered he had been making enquiries into other pubs in the area. After his dismissal he made enquiries into purchasing a pub and subsequently signed a lease on a pub which opened in May 2012. The reason he went to the pub the next day was to check if he still had a job. The respondent asked claimant G for his keys the next day. Claimant G felt he had no reason to apologise as he had been dismissed by the respondent.
Giving evidence, claimant D stated that the respondent did not like being criticised on the night of the incident. The respondent told the claimant he was fired at the doorway. The respondent told him “you’re fired as well”. Claimant D denied assaulting EL but did get into a scuffle with the respondent. The following day claimant D went to the pub to check what was going on. He had assumed that he was fired. The respondent stated that “the position was untenable”, asked for the keys and told the claimants’ they were fired.
Under cross-examination, claimant D accepted his behaviour was unacceptable after he was told he was fired. He lunged at the respondent as he was told he was fired and felt the respondent had dismissed him without reason.
Both claimants gave evidence of loss and efforts to mitigate their losses.
The Tribunal gave consideration to the evidence given by the two claimants’ and the witnesses for the respondent in this matter. These dismissals arose from a gathering of the staff, funded by the employer which was supposed to be a celebration of the efforts of the employees and employer at Christmas time.
The employer invited the claimants’ back to the place of business and provided them with drink. Arising out of the over consumption of alcohol, an affray took place in which things were said that may not have been said had the parties been sober and in proper control of their feelings. It is impossible for the Tribunal to accept that in such circumstances all fault would lie with the claimants’.
The employer had an opportunity of handling the matter in a constructive and proper fashion by using procedures in which the claimants’ could have been given an opportunity of reconciling their differences with the employer. The employer chose not to avail himself of opportunity. In the circumstances, the Tribunal have determined that the dismissal was unfair in all the circumstances. However, they also have decided that the claimants’ were responsible in large measure in this matter.
The Tribunal determine that the most appropriate remedy in this case is compensation.
The Tribunal determines that the claimant contributed to the dismissal very substantially and assess the loss at €5,000, taking account of his contribution to the dismissal.
The Tribunal also awards the claimant his statutory entitlement of €2,540, being the sum due for four weeks’ notice, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal