EMPLOYMENT APPEALS TRIBUNAL
Temp Technology Limited T/A Temp Tech - appellant
Robert Ryan – respondent
against the recommendation of the Rights Commissioner in the case of:
Temp Technology Limited T/A Temp Tech
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr F. Moloney
Ms M. Maher
heard this appeal at Dublin on 29th May 2015
Appellant(s): Mr Brian Gageby BL instructed by Mr Kieran O'Brien, O'Brien & Associates, Solicitors, Mill House, Henry Street, Limerick
Respondent(s): Ms Mary Paula Guinness BL instructed by Mr Hugh O'Neill, Marcus Lynch, Solicitors, 12 Lower Ormond Quay, Dublin 1
This appeal came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r-143338-ud-14/JOC,
The determination of the Tribunal was as follows:-
Summary of Appellant’s Evidence:
The Managing Director of the appellant company gave evidence. The appellant operates an engineering business which installs and maintains CHP (combined heat and power) systems. The respondent (employee) was hired as an apprentice mechanic in 2002. There were no performance issues during his apprenticeship. There was a break in employment during 2008. From 2010 on there were issues with the respondent’s performance.
In December 2010 there was an oil spill onto a hospital installation which began to smoulder and produce a lot of heat. The Fire Brigade had to remove the installation as there was a possibility of fire. The cost to the company from the incident was €20,000.
One year later at a leisure centre the owner of a unit which the company maintains complained about the condition the unit was being kept in and threatened to pull the maintenance contract for the ten machines the appellant is contracted to maintain.
In February 2012 the same client found that one of their units, which was located in a supermarket in Kildare, had all the water protection disconnected. The client refused to honour any warranties on the machines when they saw the water protection had been disconnected.
The MD met with the client and all the company’s engineers. He met with the respondent first as he was the engineer onsite. He stressed the need to have the water protection operational. The respondent apologised and said it would not happen again.
On 5th October 2012 he issued the respondent with a verbal warning for refusing to attend a service at a hotel in Wexford on 27th September 2012. The respondent is based in Dublin and the company is based in Limerick. Six months prior to that the MD had met the respondent at a tennis club, where he was working on a unit, to discuss his performance. The respondent looked unwell and explained he was experiencing difficulties in his relationship. The MD accepted that and said he would draw a line and they could move on.
He issued the respondent with a first written warning on 11th January 2013 for the following issues:
Before Christmas the respondent’s failure to tighten head bolts on unit in a Drogheda leisure centre led to unit being down for nine days and associated costs. A different engineer resolved the issue.
Monday 24th December 2012 the respondent attended a Dublin hotel to fix a tripped unit. The unit was made operational by the respondent but tripped again that evening and was resolved by a different engineer on 27th December 2012. Normally when a unit breaks down it runs fine for a few weeks after being repaired.
Also on Monday 24th December 2012 at a different hotel the unit had tripped. The respondent made it operational but the unit tripped again on 31st December 2012. The respondent had to attend again on 2nd January 2013.
On 3rd January 2013 the respondent attended a leisure centre unit. He informed the office that the unit had been operational since 14.00 2nd January 2013. However when investigated from the office it was found to have been down from 14.04 on 2nd January 2013 and that the unit continued to trip as no repairs were carried out on it until another engineer visited on 7th January 2013.
The MD met with the respondent on 7th October 2013 to discuss his performance. The respondent was 30 minutes late. The MD showed the respondent a letter outlining incidents concerning the respondent’s performance and discussed these with him. After a while the respondent began to mimic him and referred to his colleagues as ‘minions’. The MD discontinued the meeting and left. He formalised the letter he gave to the respondent and issued it as a final written warning on 7th October 2013.
Following further incidents in November 2013 the MD phoned the respondent on 27th January 2014 to organise a meeting for later that day. The respondent asked if it was a disciplinary meeting and he confirmed it was. The respondent wanted to attend with his trade union representative which the MD refused. The company does not recognise a union. He offered the respondent the option of bringing a colleague which was turned down. The MD posted the respondent the letter of termination of employment which he had intended giving to him at the meeting. The letter outlined performance issues relating to three jobs the respondent had undertaken in a hospital and two hotels.
The MD was cross-examined. The Kildare supermarket was not identified as contributing to the dismissal, neither was a leisure centre referred to in evidence. He was not advised that he was subject to any disciplinary process prior to being issued with a written warning. He was not told in writing that he could appeal. He phoned the respondent to organise the meeting on 7th October 2013 and told him he wanted to discuss his work. He brought a letter outlining the issues. He intended to issue a warning if he was not satisfied. He accepted that he had not sent the respondent a copy of the disciplinary process. He was not offered an opportunity to appeal the final written warning.
Three new issues were put in the letter of dismissal that had not been previously raised with the respondent. He was going to discuss them at the meeting and decide if not happy with the answers. He did not have his mind made up but it was close and he ‘felt his hand was forced’ when the respondent refused to meet. He prepared the letter of termination after the phone call.
Summary of Respondent’s Evidence:
The respondent gave evidence. He was phoned about the issue with the Kildare supermarket unit, but there was no investigation or written correspondence; only phone calls. There was a second engineer working on that site who the respondent believed had disconnected the water protection. Regarding the Wexford trip the respondent did not accept that he could make a return trip to Wexford and service two machines taking three hours each and return by 5pm. He was not paid overtime. He did not believe the engineer who attended carried out full services. He received a verbal warning in the post. He was not aware he could appeal. He was not aware of any disciplinary process prior to receiving a first written warning dated 11th January 2013. He was not aware that the Newlands Cross meeting on 7th October 2013 was to be disciplinary in nature. The MD handed him a letter and asked him not to speak while the MD read out the incidents referred to therein. The respondent felt under pressure. He admitted that he had mimicked the MD while he read out the letter and he apologised for referring to his colleagues as ‘minions’. He tried to argue the points raised but the MD became irate and so did the respondent. The MD said the office employees were annoyed by the respondent and the respondent replied ‘I don’t know what your minions are saying’. The MD said ‘I’m not f***ing taking this’ and walked out.
The respondent contacted his trade union representative for advice. He was told to keep working and the union would contact the employer directly.
He received a call from the MD on 27th January 2014 and was invited to attend a meeting. He asked if it was about the ‘issues at hand’ to which the MD agreed. The respondent indicated that he wished to bring his trade union representative but this was refused. He stated that he did not wish to attend under these circumstances. The MD said he might be suspended. The respondent then contacted his trade union representative for advice and they discussed bringing a colleague to the meeting. However the next day he received the letter of dismissal. The respondent gave evidence of his loss and his efforts to mitigate his loss.
There were a number of procedural defects in the dismissal of the respondent by the appellant. He received a number of warnings but he was not advised before any of those meetings that he was the subject of a disciplinary process. This was particularly so in advance of the proposed final meeting before his dismissal. Further, although it was intended by the appellant to address a number of performance issues with him at those meetings, the respondent was not advised what those issues were in advance of the meetings. There was, however, a more fundamental defect in the procedure in that it had never been made clear to the respondent what the disciplinary procedure was. It does not appear to have been set out anywhere and does not appear to have been communicated in any way. It bore the appearances of an ad hoc process. An employee is entitled to know where he stands vis-à-vis a disciplinary process.
It was clear that the appellant had a number of issues with the respondent’s performance. That this was so was disputed by the respondent. The Tribunal does not require to determine whether there was merit in the issues concerning the appellant. If there were issues with the respondent’s performance, these should have been addressed with him in a manner that allowed him to address the issues and improve his performance. The appellant does not appear to have taken any steps to assist the respondent improve his performance. He was given a number of warnings but at no time was he counselled in any way or given any assistance to improve his performance. This should have been done. The respondent had satisfactorily completed an apprenticeship with the appellant and had had several issue-free years of employment. He was clearly capable of the tasks required of him.
Notwithstanding a persuasive argument advanced by counsel for the appellant, the Tribunal cannot accept that there had been a fundamentally fair process.
The Tribunal is satisfied that the respondent was unfairly dismissed within the meaning of the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal varies the recommendation of the Rights Commissioner and awards the respondent (employee) €25,000 (twenty-five thousand euro) as being just and equitable in the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal