EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Stephen Dunphy – (claimant) UD718/2014
Industrial Temps Limited T/A Industrial Temps
Eddie Stobart Ireland T/A Eddie Stobart
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 R. Maguire, B.L.
Members: Mr P. Pierce
Mr D. Thomas
heard this claim at Dublin on 25th February 2015 and 20th April 2015
Claimant(s) : Diarmaid Fassett B.L. instructed by Finian Brannigan & Co, Solicitors,
16 Fair Street, Drogheda, Co Louth
Respondent(s) : For respondent 2
Mr Einde O’Donnell
Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway
No appearance by or representation on behalf of respondent 1
The determination of the Tribunal was as follows:
There was no appearance by or representation on behalf of the first named respondent (Respondent 1). Respondent 1 operated as an employment agency who supplied the claimant (a haulage driver) and other drivers to Respondent 2. Respondent 2 is a haulage company whose business in Ireland is focussed on one multi-million euro contract with a third company (hereinafter referred to as the ‘client company’) who is not named in these proceedings. No request was made to add this company to the proceedings. Respondent 1 was an external company which whose Irish registration was ceased on 9th October 2006. A similarly named agency operates from the same registered address but was not named as a party to these proceedings.
Respondent 2 submitted that the claim before the Tribunal was out of time and after hearing evidence from both parties, the Tribunal decided that exceptional circumstances existed and the claim could proceed.
Respondent 2 also submitted that the claimant was not an employee of theirs nor was the claimant dismissed by them. The client company informed respondent 2 that it was withdrawing the claimant’s invitation to operate at any of its sites. As respondent 2 exclusively worked for the client company, they had no option but to inform the recruitment agency of this development (respondent 1). The claimant received his letter of dismissal from respondent 1. The claimant’s representative submitted that redress for unfair dismissal is against respondent 2 as per section 13 (a) of the Unfair Dismissal Act, 1993.
The claimant went into evidence first.
Summary of Claimant’s Case:
The claimant told the Tribunal that he was a truck driver delivering goods to supermarket outlets belonging to the client company. He was employed through a recruitment agency (respondent 1) and was on placement with respondent 2. He was employed from April 2009, until 12th May 2012. He was dismissed by letter dated 22nd May 2013 as a result of an incident that occurred on 12th May 2012.
On Saturday 12th May 2012 the claimant had just completed a 13 hour shift. He went to sign out at approx. 8pm. When the claimant was stopped at security, he offered his bag for search as normal. The security asked the claimant to put his leg up so as the security card could see his socks. The claimant reluctantly agreed and was eventually given the go ahead to leave. The claimant had never before been asked to lift his trousers. When the claimant arrived home he rang AO’L, Recruitment Manager with respondent 1 and reported the matter. AO’L sympathised with the claimant and told him “it won’t happen again”. On 22nd May 2012 the claimant received a letter of dismissal from respondent 1, signed by AO’L. The claimant submitted an appeal on 29th May 2012. No appeal took place. The Tribunal was shown CCTV footage of the incident.
Under cross-examination, the claimant stated he reported the matter to AO’L as he is obliged to report any incidents to his employer. On previous searches, security only looked in the claimant’s bag. The claimant did not know that the security officer had complied with security policies in asking the claimant to raise his trouser legs. The claimant was not thinking straight when the security officer pointed to the policy during the search and did not feel that it was a reasonable request. The claimant would not normally look at notices displayed on the premises and accepted that the security officer was doing his job. The reason the claimant asked the security officer where he was from was to ‘break the ice’. He had previously travelled to Mauritius and Thailand. The claimant indicated that AO’L had taken responsibility to follow up the matter.
In re-examination, the claimant stated that the reason he reported the matter to AO’L was because he was the Manager with respondent 1. The claimant denied that he received the security policy dated 14th September, 2011. He did not believe that the security officer was entitled to look under his trousers. The claimant was not given an opportunity to voice his side of the story. He never heard about a disciplinary hearing referred to in letter dated 22nd May 2012. The claimant gave evidence of his loss.
Summary of Respondent 2’s Case:
The General Manager gave evidence. She was Transport Manager at the time of the incident. She was informed directly by an onsite employee of the incident and on Monday morning a client company representative came to her office. The security guard had made a complaint against the claimant and an investigation was underway. It was alleged that the claimant had been verbally abusive, aggressive and there was a racial element. She viewed the CCTV of the incident with a representative of the employment agency. The agency was provided with a copy of the CCTV footage and said they would investigate the matter. They did not engage with the witness regarding the incident.
The client company viewed the claimant’s refusal to comply was in itself gross misconduct and when he was reminded of the policy he allegedly became aggressive and verbally abusive. He asked the security guard of Asian origin where he was from. The security guard took offence to this and believed if he was Irish he would not have been asked. As a result of the client company’s withdrawal of the claimant’s site invite she had no work to offer the claimant. Respondent 2 had no involvement in the dismissal of the claimant and were unaware of it until the claim was submitted to the claimant.
The Tribunal is satisfied although the claimant was recruited through an agency that the correct respondent for the purposes of the Unfair Dismissals legislation as per section 13 (a) of the Unfair Dismissal Act, 1993, is Respondent 2. The claim against Respondent 1 is therefore dismissed.
The company should be aware of the legislation and its responsibilities towards agency workers.
The Tribunal considers the sanction of dismissal as excessive for a first offence. The claimant can be seen at the end of the CCTV footage to show his socks as requested. The Tribunal is of the opinion that the claimant’s question to the security about where he was from was an attempt to mollify the situation and not a racist comment. The claimant was never given an opportunity to be heard as no investigation meeting or disciplinary procedures were instigated.
Taking all matters into account the Tribunal awards the claimant €23,000.00 (twenty-three thousand euro) in compensation under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant €752.00 (seven hundred and fifty-two euro) in respect of two weeks’ pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal