EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Denis Ryan - claimant UD1193/2012
RP896/2012
MN736/2012
WT314/2012
Against
Gleeson Precast - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Mr J. Hennessy
Mr P. Trehy
heard this claim at Thurles on 13th February 2014
Representation:
Claimant :Mr. JJ Fitzgerald, JJ Fitzgerald & Co, Solicitors, Friar Street, Thurles, County Tipperary.
Respondent: Mr. Ian Flynn, Kieran T. Flynn & Co., Solicitors, St. Michael Street, Tipperary Town, County Tipperary.
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent disputed that a dismissal took place in this case and in the circumstances the claimant’s evidence was heard first. The claims under the Redundancy Payments Acts, 1967 to 2007 and Organisation of Working Time Act, 1997 were withdrawn by the claimant.
The claimant commenced employment with the respondent in February 2005. He had various duties in the company and over the course of his last two years in employment with the respondent he willingly took on additional duties. The respondent’s workforce had been reduced from seven employees in 2005 to three employees in 2012.The claimant took instruction from the foreman however when the foreman left the respondent he took instructions directly from the managing director (BG). The claimant had no difficulty other than some minor issues during his employment. In April 2012 his working hours were reduced to three days per week being Monday, Tuesday and Friday of each week. On the week of the 9th April the respondent asked him to work on the Thursday of that week for two and a half hours. When he received his payslip he realised he was not paid for the two and half hours and contacted an employee in wages. He was informed that the respondent directed that any extra hours would not be paid at the overtime rate but time off in lieu would apply. On the 17 April he met with BG and sought an explanation regarding his pay. The response he received was that overtime would no longer be paid. BG became annoyed and he commented that the claimant should open his eyes that the business was struggling. The claimant asked him to calm down that he wanted an explanation as he had not been consulted on this new arrangement. The claimant returned to work but later that afternoon was approached by BG who again appeared very angry. He followed the claimant across the open yard of the premises shouting and claiming that he was out to get him. The claimant suggested that the matter be left lie and walked away to which the respondent replied that he should get off the premises while pointing to the exit. Following an exchange of inappropriate words the claimant left the premises.
A former employee and foreman of the respondent described the claimant as an honest worker always willing to adapt and change when asked. The witness was for a time the claimant’s manager up to when he himself left the employment following an incident with BG. In March 2010 BG launched a verbal attack bordering a physical attack on the witness which led to him leaving his employment.
The managing director (BG) gave evidence of the business suffering significant reductions and a reduction in working hours followed. He informed employees by word of mouth only that overtime payments would no longer be paid and that time off in lieu was the alternative. When the claimant initially queried this on the 17 April he was disappointed and taken aback given that he had always tried to be a fair employer. His recollection of that day is that he had someone waiting for him in the office and later approached the claimant to explain the time in lieu option. Following an exchange of words the claimant continuously walked away and when he failed to stop walking after he had asked him three times he told the claimant to keep walking. BG believed that the claimant had overreacted and should have returned and apologised for the language he directed at him as his employer. The respondent denied dismissing the claimant and a letter dated the 26 April 2012 requesting the claimant to indicate if he intended to return to work was opened to the Tribunal.
Determination
The Tribunal having considered the evidence of both parties is satisfied that the claimant was unfairly dismissed from his employment on the 17 April 2012 following a heated verbal exchange. On balance the Tribunal find that the parties contributed equally to the dismissal.
The claimant’s contract of employment was examined and it is noted that the contract made no provision for time off in lieu of overtime payments. The contract clearly stated that overtime payments are paid at a rate of time and a half. The respondent in his own evidence stated he communicated the time off in lieu alternative to employees at a staff meeting but was unable to provide any supporting note of the meeting at which this was discussed to the Tribunal.
The respondent failed to make contact with the claimant immediately after the exchange on the 17 April but instead following legal advice wrote to the claimant on the 26 April 2012.
The claim under the Unfair Dismissals Acts 1977 to 2007 is successful with contribution by the claimant as aforesaid and the Tribunal finds the appropriate award to be compensation in the sum of €7,000.00. The Tribunal further awards the claimant €1,584.00, being the equivalent of four weeks’ gross pay, in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The Tribunal therefore award the claimant €8,584.00
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)