EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
- claimant UD1520/2013
Campbell Wallcoverings Limited T/A House of Tiles
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr G. Mc Auliffe
Mr. S. O'Donnell
heard this claim at Dublin on 11th December 2014 and 3rd February 2015
Claimant(s) : Mr Owen Keaney B.L. instructed by Michael O'Shea & Co, Solicitors,
291 Templeogue Road, Templeogue, Dublin 6w (at hearing on 3 February 2015)
Respondent(s) : Mr John Barry, Management Support Services,
The Courtyard, Hill Street, Dublin 1
The determination of the Tribunal was as follows:-
Summary of Evidence
The dismissal being in dispute the Tribunal heard the claimant’s evidence first. The claimant commenced employment with the respondent company in January 2005. He was employed in the role of store manager at the Sandyford branch of the company. A contract of employment opened to the Tribunal referenced his place of work as the Sandyford branch. The respondent’s head office was based in Ballyfermot. A good working relationship existed between employees and management. The claimant reported to CC director. With the downturn in sales the company commenced a redundancy process in March 2013 which included one senior manager from another branch. At that time the claimant was offered a job by another employer in the Wexford area which would be more suitable given his long commute each day. He approached PC the managing director asking to be considered for any further redundancies but this was turned down. It was agreed however that he would reconsider in September 2013. The claimant took time off in June 2013 due to a family member’s illness. On the 5 July 2013 he was going about his normal Friday duties preparing lodgements and was due to go to the bank. He called to his brother in law’s (JH) premises to get the car keys as they travelled to work together. JH was a former employee of the respondent. DC a director of the respondent company had parked up close by and seems watched his movements. He was later asked to meet PC at the head office of the respondent. DC was also present. The claimant was questioned about the other premises and if JH was opening a business in competition with them. The claimant did not believe it was his place to inform the respondent if JH was opening a tile store. Heated words were exchanged and he felt threatened. He was informed that if JH was opening a tile store that there was a conflict of interest with him working at the Sandyford store and he was instructed to take the remainder of the day off and to report to the Ballyfermot branch the following Monday. He later requested the instruction in writing. He had no handbook to refer to in order to lodge a grievance. He attended his doctor due to the stress and anxiety and submitted a medical certificate to his employer. He returned to work at the Sandyford branch on the 12 July 2013 and met CC and PC. He was again instructed to go to the Ballyfermot branch but refused. He was prevented from entering the premises and told by PC “not to set foot into the fucking building”. He left and returned to his doctor. He continued to submit medical certificates. During the period of sick leave he called to JH’s premises with his family. On one occasion DC called in asking to speak with him. The respondent attempted to arrange meetings however he was on certified sick leave at the time and felt unable to attend. He wrote to the respondent on the 19 August 2013 resigning his position due to the ongoing campaign calling to JH checking up on him.
The claimant denied having any knowledge of his brother in law opening a tile store before July 2013. On hearing from JH that he was opening a tile store he advised JH that he was mad opening a tile store. He denied having any involvement with the establishment of the other business and denied putting up any signage relating to the new store. His first involvement was on the 21 October 2013 when JH employed him. At no time was he informed that the relocation to Ballyfermot was a temporary measure.
JH gave evidence of being employed with the respondent company up to his redundancy in April 2013. He gained employment soon after and was approached by his new employer to set up a tile business. A number of locations were considered and in mid May 2013 a decision was made. JH believes that he informed the claimant in and around the 3 July 2013 of his intention to open the store. He recalled the claimant saying “are you mad going up against other tile companies”. The claimant had no involvement in the business and did not assist with the setting up of the business. DC called to his store on the 14 August looking to speak with the claimant. The claimant was not there at the time. The following day CC called when the claimant was in the store with his family. He described CC as aggressive and wound up at the time. The claimant refused to speak with him. CC commented that he was looking for a tile cutter. He threatened the witness not to enter his premises. On the 21 October he employed the claimant in a general sales role.
Company director DC described having regular day to day contact with the claimant. They always had a good working relationship. On the 5 July 2013 he was at the Sandyford store collecting lodgements. The claimant appeared uncomfortable in his presence and anxious to get him out of the store. DC observed a builder in the store at the time and when leaving noticed JH at the other business unit. He continued to observe the claimant, the builder and JH at the new business unit for approximately thirty to forty minutes. He reported what he saw to PC. The claimant was requested to meet PC later and he was also present. The meeting was tense with no shouting and he described the claimant’s demeanour as disrespectful. At no time was the claimant told his employment was terminating only to report to the Ballyfermot store in order to investigate what was happening. At the time DC had heard rumours from sales representatives that JH was opening in competition with their business.
The managing director PC explained how business declined leading to redundancies in 2013. The respondent operated seven stores all of which were performing badly. He recalled the claimant seeking redundancy in May 2013 but he was unable to pay redundancy at the time and wished to hold on to his better staff. He described the claimant as a good performer. He had also heard rumours that JH a former employee was opening a tile store in the area. DC contacted him on the 5 July and explained he saw the claimant, a builder and JH at a premises close to his in Sandyford. He asked the claimant at a meeting that day what was going on and was told that it was not his business. He took the decision to move the claimant to the Ballyfermot store to investigate if there was a conflict with the claimant working next to his brother in law who was in direct competition with their business. The next contact with the claimant was on the 12 July following a period of certified sick leave by the claimant. He prevented the claimant from entering the Sandyford branch and instructed him to report to the Ballyfermot branch. The claimant said he was taking this action as a dismissal. PC denied using threatening abusive language. PC said he was highly suspicious that the claimant was involved in the new business. A series of letters between the respondent and the claimant were opened to the Tribunal covering the period 17 July to 22 August 2013. It was denied that the claimant was ever accused of stealing a tile cutter. As well as his suspicion that the claimant was involved in the new business he was concerned that the claimant spent up to forty minutes in the new store on the 5 July while being paid by him.
Director and sales manager CC had regular contact with the claimant. The claimant managed the Sandyford store with no difficulties. CC took over as store manager and on the 12 July when PC was dropping him off the claimant arrived for work. A conversation followed with PC asking the claimant to report to the other store. He denied that there was any tension or heated argument that only the claimant seemed agitated. Shortly after PC left, the claimant returned shook his hand and requested his P45. CC refused to arrange this stating that he was not dismissed. CC denied loosing his temper when he called to JH’s store on the 15 August 2013. He asked JH not to enter the respondent’s store at the request of employees there. The witness said that from August onwards he regularly observed the claimant at JH’s premises loading stock and opening shutters.
During the course of the hearing, the respondent accepted that there had been a failure on their part to follow fair procedures or provide an employee handbook to the claimant. Furthermore, it is clear from the evidence that the claimant’s allegation that he was bullied and harassed by members of the respondent company, no independent third party was appointed to investigate these allegations which of itself constitutes a serious breach of fair procedures.
Regarding the substantial issues before the Tribunal, in particular the issue of constructive dismissal. Section 1 of the Unfair Dismissals Act 1977 provides that
“the termination by an employee of his employment of his contract of employment with his employer, whether prior notice is given to the employer, in circumstances in which, because of the conduct of the employer, the employee was entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of termination…”
In assessing this claim, the Tribunal must consider the issue of constructive dismissal having regard to two main headings
Firstly, the Tribunal is satisfied that based on the evidence heard throughout the course of the hearing, the respondent unilaterally changed the terms and conditions of the claimant’s contract of employment when they insisted that he work at the Ballyfermot store, even if only for a temporary period. This is not something they were not entitled to do. The contract is quite clear about where the claimant’s place of work should be, and that was at the Sandyford store.
The second issue the Tribunal must consider is was the respondent’s behaviour in moving/altering the place of work of the claimant reasonable in the circumstances. The Tribunal acknowledges that the respondent’s concerns over the claimant’s involvement with his brother-in-laws new business were reasonable, however the decision to move the claimant to an entirely different store, in breach of his contract of employment was however unreasonable, all things considered.
Taking all the circumstances of this case into account, the Tribunal is satisfied that the claimant was unfairly dismissed within the meaning of the Unfair Dismissals Act and award the claimant €5,000. This takes into account a significant contribution on the part of the claimant regarding his conduct prior to his resignation.
Sealed with the Seal of the
Employment Appeals Tribunal