EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Damian Ward -claimant UD728/2013
Hotel Nuremore Limited T/A Nuremore Hotel and Country Club
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr M. Carr
Mr O. Nulty
heard this claim at Monaghan on 15th January 2014
and 8th May 2014
Claimant: Ms Barbara Johnston, Erservices, Carson, Marahill,
Ballinagh, Co Cavan
Respondent: Ms Caroline Latham B.L. instructed by,
Wells & O'Carroll, Solicitors, Main Street, Carrickmacross, Co Monaghan
The respondent is a hotel and golf course. The claimant commenced employment in September 2002 as a green keeper. When the head green keeper left employment in November 2011 the claimant took over the role and received a corresponding pay increase. He did not receive a contract on promotion; he was aware of the probation period but not that it was for 12 months. The financial controller (PD) informed him of the promotion, there was no one else at the meeting. The claimant was not aware that the managing director (JG) had any reservations regarding his suitability for the role. Up until his promotion the claimant’s only management interaction was with the head green keeper.
Work proceeded as normal without any issues until a meeting with JG and the golf pro in May or June 2012. He was informed that there had been customer complaints regarding the condition of the golf course. The claimant attempted to rectify the problems but faced difficulty due to the weather conditions that year and problems with the machinery.
The claimant met with JG again in July 2012 where he was informed he should not have given authorisation for the staff to go on annual leave during the summer. The claimant had received verbal warnings and instructed to show more leadership. The claimant was not given any training for his new role as head green keeper. In August 2012 the claimant was informed that he was being replaced as head green keeper and that he would revert to the green keeper role. His replacement had more experience and qualifications than the claimant and the role was now referred to as the golf superintendent. The claimant was unhappy with the situation so requested a contract to clarify his position.
In September 2012 the financial controller (PD) informed the claimant that his position was at risk for redundancy. The claimant was then given a date that he would be placed on lay-off for the winter. This had been standard for the past few years in the respondent. The golf superintendent noticed how unhappy the claimant was and asked him if he would like to go on lay-off earlier (2nd of November 2012) in place of a green keeper with less service. The claimant accepted and at the request of the golf superintendent wrote a letter of request to that effect on the 23rd of October 2012. This was not a resignation letter, only a letter stating he agreed to leave on the earlier date of the 2nd of November. A letter of the 7th of November 2012 from the respondent confirms that the claimant was placed on lay-off from that date.
On the 22nd of November 2012 the claimant applied for redundancy based on the fact that he had been on lay-off for a continuous 4 week period. As a result the claimant was asked to a meeting. At this meeting the respondent maintained that the claimant had resigned by letter of the 23rd of October 2012. The respondent then offered him alternative work but did not clarify what this work would be. The claimant had requested redundancy as “I didn’t want to go back, I’d just had enough.” The claimant did not avail of the respondent’s grievance procedure. The respondent never provided any detail or terms and conditions of the job offer but expected him to arrive for a job on the 10th of January 2013. The claimant was told that he might possibly be filling the night porter role. A subsequent letter informed the claimant that, as he did not attend for work on the 10th of January 2013 he was coming close to dismissal.
The claimant considers himself dismissed or made redundant by the respondent. The claimant gave evidence of his loss and his attempts to mitigate his loss.
The respondent managing director (JG) gave evidence. JG had reservations about appointing the claimant to the role of head green keeper due to his lack of experience. JG and PD interviewed the claimant for the role. JG put her reservations to the claimant and they agreed to help him as much as possible and give him a full year’s probation period; this was discussed with the claimant. The claimant never asked for any help; JG was always available for advice.
JG gave evidence of the numerous complaints received regarding the condition of the golf course. JG and the pro golfer spoke to the claimant on a number of occasions about getting the golf course back into good condition. They decided to inform the claimant that the probation period as head green keeper did not work out so he would be reverting to green keeper. The claimant was not dismissed from the respondent.
The pro golfer (MC) gave evidence of the complaints he received regarding the condition of the golf course. MC spoke to the claimant on a number of occasions but the issues were never resolved. While the weather was bad, conditions in other golf courses in the area were not as bad as the respondent.
The financial controller (PD) who also acts as the general manager gave evidence. The previous head green keeper recommended the claimant for the position he was vacating. PD and JG discussed it and decided to give the claimant the promotion. The claimant was given 1 years probation which is standard for any management role even though the staff handbook states a probationary period of 6 months. PD generally only interacts with the green keepers when they wish to make purchases. PD spoke to the claimant in March regarding a large chemical purchase the claimant wished to make. PD was aware of the ongoing issues with the claimant and the condition of the golf course but had no involvement until he spoke to him in June 2012. The claimant requested more staff but the claimant had the same amount of staff as the previous year and he had also authorised staff to go on holidays during the summer which is against company policy.
On approximately the 7th of August PD informed the claimant that they were reviewing his position as head green keeper. PD went through the golf course issues and told the claimant that he was not being proactive in his role. On the 16th of August 2012 PD informed the claimant that he wasn’t working out as head green keeper and he would revert to green keeper. There was never a suggestion that he was being dismissed from the respondent. In September 2012 a replacement head green keeper was appointed and the role was renamed golf superintendent. No help was given to the claimant to improve his performance.
The claimant first requested his contract of employment and terms and conditions of employment on the 19th of August; he never had anything before this in writing. These documents were sent to the claimant on the 6th of September. The claimant sought a meeting but did not attend at the arranged date of the 11th of September. On the 27th of September the claimant requested a meeting to discuss the situation as stated in his email. The claimant did not do anything further to organise the meeting so it did not take place.
The claimant again sought his contract of employment and the terms and conditions of employment in October 2012. The claimant was placed on lay-off for the winter in October 2012. The policy is to retain the head green keeper and the green keeper with the longest service for the winter.
On the 22nd of November 2012 the claimant requested redundancy which was refused. The request was refused as he hadn’t been made redundant and it was the respondent’s intention to re-employ him the following year.
The claimant was offered alternative employment but he failed to attend work on the date set down on the 10th of January 2013. Although PD stated in his letter of the 31st of December 2012 to the claimant that he had refused the alternative employment, PD does not recall the claimant actually refusing the alternative employment only requesting further details. PD never informed the claimant what this alternative employment would be.
PD then wrote to the claimant informing him that his failure to attend work was unacceptable and that unless a medical certificate was provided disciplinary action would be taken. The claimant failed to reply so the respondent wrote again on the 24th of January informing him that the disciplinary process was now invoked and invited him to attend a disciplinary meeting. The claimant did not attend the disciplinary meeting. The claimant wrote to the respondent stating that he had not received the staff handbook; the respondent then sent it to him and reiterated that he would be dismissed on foot of an absence without cause. There was no response from the claimant to requests to return to work.
Having considered all of the evidence adduced, the Tribunal find that both the Unfair Dismissals Acts, 1977 to 2007 and the Redundancy Payments Acts, 1967 to 2007 fail.
Sealed with the Seal of the
Employment Appeals Tribunal