EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Glenman Corporation Limited
- appellant
against the recommendations of the Rights Commissioner in the case of:
Shaun McCaffrey UD1552/14
- respondent no. 1 TE8/15
Gerry Flanagan
- respondent no. 2 TE7/15
Michael Dwyer - respondent no. 3 UD103/15
TE140/14
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr M. Noone
Mr A. Butler
heard these appeals at Dublin on 14th December 2015.
Representation:
Appellant: In person
Respondent: Mr. Andrew Smith, Building and Allied Trade Union, 13
Blessington Street, Dublin 7
These cases came before the Tribunal by way of the employer appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 and Terms of Employment (Information) Act, 1994 r-138416-ud-13/SR, r-135915-te-13/SR, r-138419-ud-13/SR, r135921-te-13/SR and r-138418-ud-13/SR r-135920-te-13/SR.
The determination of the Tribunal was as follows:-
Determination:
The employees did not have one year’s service but they argued that they were dismissed for trade union engagement which is one of the exceptions in the Unfair Dismissals Act, 1977.
Section 6(2) (a) provides:
(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:
(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to engage.
The company said these employees and others were engaged for a short period to do certain brick and block building work on a building site and this would last only for a short period. Some complications arose about windows which changed the schedule so the urgency for which the employees were employed no longer existed.
The company did not present the employees with written contracts of employment when they commenced and the object of their employment was never made clear.
Later issues arose between the trade union and a sub contractor who employed brick and block builders working on site. The employees in the present appeal were members of that trade union but it would appear all of the other employees were not in the union at that time.
The trade union referred their concerns to the Labour Relations Commission and by letter dated 29th May 2013 received by both parties on 31st May 2013, the LRC informed them of the dispute. On the same day the employees were informed by the company that their employment was terminated. The company submitted that the two issues were not related and that the two matters happening at the same time was just a coincidence, that the employees were no longer required by them.
On behalf of the employees it was argued that this was no coincidence. The Tribunal attaches great significance to the fact that the dismissals happened on the same day and on the balance of probability the Tribunal finds that there is a cause – and – effect relationship.
The Tribunal determines that the dismissals were attributable to trade union membership or activity and therefore this case is the exception to the need for one year’s service. This is also deemed to be unfair under Section 6(2)(a) of the Unfair Dismissals Acts 1977.
Accordingly, the Tribunal upholds the recommendations of the Rights Commissioner and makes awards of €6,000.00 to each of the employees.
The company withdrew the appeals under the Terms of Employment (Information) Act, 1994 to 2012. Accordingly, the Tribunal upholds the recommendations of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)