EMPLOYMENT APPEALS TRIBUNAL
Denis Kinane Motors Limited T/A Denis Kinane Honda
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: Ms. K.T. O'Mahony B.L.
Members: Mr. J. Hennessy
Ms. S. Kelly
heard this claim at Thurles on 21st March 2016
Claimant: Mr Patrick McDermott, Nash McDermott & Company, Solicitors, Templemore, Co Tipperary
Respondent: Brian D. Hughes & Co., Solicitors, ''Longmall'', Slievenamon Road, Thurles, Co. Tipperary
Summary of evidence:
The claim before the Tribunal under the Unfair Dismissals Acts was one of constructive dismissal. It therefore fell to the claimant to make his case.
The claimant, a mechanic, commenced his employment with the respondent as an apprentice on 8 December 2007 and on the completion of his apprenticeship, continued in the employment until the termination of his employment on 22 August 2014.
The claimant’s position was that it was hard to satisfy the owner (MD) of the respondent company and he found it difficult to work for him. MD’s position was that while the claimant’s work performance was generally fine he needed careful watching. On occasion, he had cause to speak to the claimant but he did not issue him with any formal warnings.
On Wednesday 20August 2014, when the claimant was in the process of replacing a bulb it accidentally fell into the headlamp. When his attempts to retrieve it using a magnet failed he had to remove the car bumper to retrieve the bulb. It was alleged by the claimant that when MD discovered this he repeatedly told him that he was making the same mistakes, over and over again and that he was a “waste of space”. While doing this work MD was standing over the claimant and he became so stressed and upset that he could not “take it anymore” and decided to leave the employment. On his way out he told a work colleague (WC) that he could not take any more and was leaving. MD denied telling the claimant he was a waste of space but accepted that he had “given out” to him as there had been no need to change the bulb in the first place.
The claimant subsequently received a telephone call from MD asking him to sign a statement that he was leaving the employment, to return his overalls and a voltage meter (the meter) that MD had alleged he had stolen from him. The claimant told MD that he had not stolen the meter and he decided to return to the workplace that day to clear up the issues. Voltage meters are used for checking amps on cars
It was MD’s evidence that on 19 July 2014 the claimant had shown him a voltage meter (a tool for checking amps on cars) in the boot of his car, which he claimed that his uncle had found when he was cleaning out a garage in England. MD just walked away from the claimant on that occasion as he knew that the meter was his. It had been missing from his premises. It was the first machine he had purchased when he started the company and he considered it an heirloom. During the following weeks MD had been watching out believing the claimant would return it due to their good relationship. It was for this reason that he did not address the matter when the claimant had shown it to him on 19 July. MD was absolutely certain that the machine in the boot of the claimant’s car was his own. The claimant denied showing MD a meter on 19 July or ever telling him that his uncle had found it in a garage in England.
On Friday 22 August 2014 the claimant returned to the workplace to clear up the matter and collect his tool box. The claimant alleged that MD called him a thief. The claimant told him that if that was the case he should call the Gardai to search the claimant’s house but MD replied that he knew the claimant’s kind and that he had probably already sold the tool. The claimant denied MD’s allegations that he offered to pay for the tool or that he told him to take it out of his wages. He had bought the tool in Thurles for €25.00. MD produced a piece of paper and asked the claimant to sign it confirming that he was resigning from the employment. Due to the claimant’s stressed state he signed it. The claimant found the atmosphere very hostile. The claimant denied in evidence that he had ever seen the machine MD accused him of stealing. He had his own multi-meter which he used for performing such duties.
It was MD’s evidence that at the meeting the claimant asked what was the machine worth and MD said that he did not care about that he just wanted the machine back. MD denied calling the claimant a thief during this conversation. He did tell the claimant that he would pay his outstanding wages and holiday pay when the meter was returned. He did not pay the claimant this outstanding sum until April 2015.
The claimant’s position was that he had gone in to sort things out and up until the conversation in the office he had been contemplating returning to work there. He had felt MD would cool down after a few days and he would return
Two employees, AM (another mechanic) and WC gave evidence that when the claimant returned to the workplace on Friday, 22 August he told them he had another job. Both witnesses had expected the claimant would return to work the next day as he had walked off before and returned. AM’‘s evidence was that meters are used on vintage cars and the claimant has a vintage car. He had sold a meter to the claimant. There are also modern voltage meters. He had never seen the meter in the respondent’s garage. The witness enjoyed a good working relationship with the claimant.
WC was present in the office during the conversation between MD and the claimant. She alleged that she heard MD tell the claimant that he would pay him his outstanding wages and holiday pay when the machine was returned and when the claimant asked what it was worth MD said that he did not care about that he just wanted it back. MD did not call the claimant a thief; it was the claimant who had used the word thief, he said, “You’re calling me a thief.” She said the claimant was agitated and that was not unusual for him. She agreed that the claimant had said to call the Gardai but added that he is a dramatic person and he knew that the respondent would not call the Gardai out of respect for his parents.
The claimant’s father gave evidence that in a conversation with MD the following Monday, he had called his son a thief. MD denied calling the claimant a thief either to his face or to his father. He was shocked at his leaving as he had no one in the workshop and had to close for a week. There were other occasions when the claimant had said he was leaving the employment but he subsequently returned. MD would have taken him back but they needed to talk about the meter. The claimant’s position was that he had intended returning to work with the respondent and that was why he went to see MD at the office.
The claimant gave evidence of his financial loss since resigning from the employment and his efforts to mitigate that loss which included some temporary employment for a period of four months.
MD confirmed the claimant’s P45 was prepared as he had stated he had new employment. The claimant was replaced with an apprentice mechanic. The outstanding wages were not paid to the claimant until April 2015.
The claimant left the employment on 20 August. It was common case that the claimant had left the employment on other occasions and returned a few days later. It was further common case that this pattern would have been repeated on this occasion but for the issue of the meter. The exchange between the parties as to the meter occurred on 22 August 2014.
It is clear from the conversation between the parties on 22 August 2014 that the voltage meter became the deciding issue as to whether the employment relationship continued. Central to this is the imputation of theft by MD. Whether MD uttered the word ‘thief’ or used some other form of words connoting that the claimant had taken his voltage meter the imputation is the same. Whilst being cognisant of both parties’ evidence as to the events of 19 July 2014, even if the Tribunal were to accept MD’s version of those events his failure to investigate or discuss or in any way explore with the claimant either the missing meter from his garage or the meter the claimant had allegedly shown him on 19 July is fatal to the respondent’s case/defence.
Relying on the unsubstantiated allegation of the unlawful taking of the meter the Tribunal finds that it was reasonable for the claimant to terminate his employment on 22 August 2014.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal awards the claimant €22,000 under the Acts.
The claim under the Minimum Notice and Terms of Employment Acts was withdrawn at the outset of the hearing.
Sealed with the Seal of the
Employment Appeals Tribunal