EMPLOYMENT APPEALS TRIBUNAL
Belcross Enterprises Limited
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. C Egan BL
Members: Mr. T. L.Gill
Mr. T. J. Gill
heard this appeal at Castlebar on 24th October 2016
Appellant: Mr. Dan O'Connell, O'Connell & Associates, Management Consultants, Castle Park, Ashbourne, Co Meath
Respondent: Ms Martina Weir, Assistant Industrial Organiser, SIPTU, Liberty Hall, Dublin 1
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Decision ref: r-144157-ud-14/EOS under the Unfair Dismissals Acts, 1977 to 2007.
This case was heard in conjunction with an appeal by the employee against the same Rights Commissioner’s Decision – ref: UD153/2015.
As this is the case the parties shall be referred to as the EE – the employee and ER - the employer.
The determination of the Tribunal was as follows:-
EE was employed as a construction worker with ER from the 2nd of February 2012 until the 25th of March 2014. ER supplied contract labour to the main contractor located on the sea to land gas site in county Mayo. In December 2013 to January 2014 EE was relocated to another site due to work shortages. EE then worked between two sites – Aughoose and Glengad. In January 2014 the main contractor had no more work for ER’s staff and EE’s position terminated on the 25th of March 2014.
(ER) - Employer’s Position:
The Managing Director (MD) of ER gave evidence. He explained that he had employed EE in the past and had to let him and other staff go because of lack of work. In February 2012 EE and the other staff returned to work.
MD explained that EE was hired on a short term and “as needed” basis. The term of the contract stated:
“This is a short term contract as and when required. Mobilisation and Demobilisation dates will be issued to you accordingly.”
On the 4th of February 2014 MD emailed the main contractor to request in writing why EE and his colleague had been given their notice that they were finished on site. The main contractor replied on the 6th of February 2014 confirming there was no longer work available for them. He also stated:
“After completion of the construction of the reception shaft in Glengad, both operatives moved to the work site in Aughoose. At that time, a temporary position was available in Shift 2 to provide cover to a W& F employee who had been on sick leave. (EE named) was assigned to this role. The aforementioned individual has returned to the site and as such the role afforded (EE) is now no longer available. In relation to (colleague named), on moving back to Aughoose he was afforded a position as a storeman in Shift 1. As part of this role of certain mechanical ability is expected (e.g. ability to weld, carry out minor repairs to mechanical systems etc.). Unfortunately, the team feel that (Employee) is lacking in this ability and as such is considered to be no longer suitable for the position.”
MD told the Tribunal that he had tried to secure work for the staff he had to let go. MD submitted staff curriculum vitaes to the new contractor who came on site and some of his former staff were hired. When MD discussed the matter with EE, he replied that he would not walk on the office site again as he was being spoken about.
Under cross-examination, MD told the Tribunal the hearing at the Rights Commissioner related only to an alleged incident between EE and a Manager (JR) from one of the main contractors and not the fact that he had to let EE go because there was no more work available.
MD agreed that he was ER and stated that he had no issues with EE or his work. He had done some work as a Banksman and some carpentry work of which he was qualified. When put to him he said that he had not been aware that EE was a trained locomotive driver. MD refuted the contention that EE had the longest service but was let go anyway. Some other staff that had longer service remained working in different areas on the site.
When asked what was his selection criteria, MD replied that it was a skills set and he had no more work for the Employee.
When asked if he was aware of the incident between EE and JR, he replied that he had been informed by a third party some days later but was told it was sorted. When he discussed it with EE he was told it “was fine.” MD said he had not been asked to investigate. MD told the Tribunal that EE had told him that he would not go back on site with JR present.
EE - Employee’s Position:
EE stated he was employed by ER as a Banksman / Dumper Driver on the Aughoose site. He also undertook some carpentry work. He explained to the Tribunal that he was qualified in both positions as well as having tickets for working in confined spaces, locomotive driving and first aid.
When working on the Aughoose site he explained that he always reported to SA from “BAM”. On one occasion SA asked him to cover the confined space hut during a tea break. It was a daily task for him. Fifteen minutes later one of the German Contractor Managers JR approached him and told him to “get out and bank the crane”. EE replied that he could not leave the hut unattended. JR told him “when I tell you to do something you do it”. JR came nearer to him put his hand on his shoulder / arm and put him out, though not in an aggressive manner. He informed the Site Engineer and the Tunnel Inspector straight away. He also informed the Project Manager.
The following day the Project Manager invited him to a meeting. JR entered the room and pointed in his face. EE told JR that “we treat people with respect”. He then left the room as JR and the Project Manager were talking in German and he felt intimidated. A few days later he told MD who informed him the matter was being dealt with. Two weeks later he was moved to the Glengad site. In November 2013 three of EE’S colleagues were moved back but he was not. He contacted SA who informed him that he was lucky he had been moved to Glengad. He was then given two weeks’ notice. When he raised the issue he was given work in other locations in north Mayo.
EE told the Tribunal that another incident occurred with JR in November 2013 when he returned to the Aughoose site. JR shouted at him when he saw him on the site asking “why are you here, you should be gone”. EE was asked to apologise but refused as he saw no reason to do so.
In February 2014 EE was advised his employment was to be terminated. EE told the Tribunal that other staff from ER remained on site and the only reason he was dismissed was because of JR.
EE gave evidence of his efforts to mitigate his loss of earnings.
Under cross-examination EE agreed he had signed a contract of employment but it was in 2012 and he was not given a copy of it. When put to him, EE said that he had not known who JR was and had never seen him on site before.
When asked, EE stated that he had not reported the incident with JR to his union representative.
In this matter both parties have appealed a recommendation of a Rights Commissioner (ref: r-144157-ud-14/EOS) who found in favour of EE awarding him the sum of €3,000. ER states the Rights Commissioner erred in her determination and EE feels the amount of compensation awarded is insufficient.
Having carefully considered the sworn evidence adduced the Tribunal upholds the Rights Commissioner recommendation (ref: r-144157-ud-14/EOS) awarding EE the sum of €3,000.00 (three thousand euro) under the Unfair Dismissals Act, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal