EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1630/2014
CLAIM OF:
Robert Miller
- claimant
Against
Eco-Hygiene Limited T/A Eco Hygiene
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr F. Moloney
Mr M. O'Reilly
heard this claim at Dublin on 14th March 2016 and 3rd June 2016
Representation:
Claimant: Mr. Conor Bowman BL instructed by Bourke & Co, Solicitors, 167-171 Drimnagh Road, Walkinstown, Dublin 12
Respondent: Hughes & Associates Solicitors, Meeting House Square, 13 Eustace Street, Dublin 2
The determination of the Tribunal was as follows:-
Respondents Case:
The respondent supplies goods/services to the cleaning industry predominately.
The respondent and owner of the company (MM) had previously worked with the claimant in a warehouse and always thought him to be hardworking and of good character. The respondent started up his own company in 2006, proposing to the claimant that he work for him in the capacity of a van driver, provided the claimant obtained the necessary Full Drivers Licence.
A contract of employment was drawn up and given to the claimant but never signed, apparently because of the issue with the driver’s licence. The respondent hoped that a licence would be obtained and was prepared to wait and be patient.
Issues began to arise in early 2007 when the respondent began finding the claimant at work, apparently under the influence of alcohol. The claimant would invariably be on sick leave, particularly following a weekend or Bank Holiday.
However, it wasn’t until 2014 that matters turned serious with a verbal warning being issued to the claimant following items going missing after delivery runs to places like Belfast and Cork. By this time, the claimant was driving the delivery van.
Other issues arising included work procedures not being followed, the warehouse not being organised as agreed, stock going missing and not being accounted for.
The claimant was asked to help out with administration work, specifically answering the telephone, during a busy time for the company. Also, the respondent felt the claimant was a good speaker and had good interpersonal skills.
This went fine until 3rd September 2014 when customers (including a rent-a-car company, a valued and revenue-generating client) were getting no replies / answers to their telephone calls, prompting speculation that the respondent was perhaps no longer trading. The respondent himself phoned the warehouse but with no reply. When he arrived at the warehouse at 9.50am that morning, the claimant informed him that he was too busy to answer the calls, despite being told that this would have a potentially disastrous impact on customers / sales.
Subsequent meetings and discussions following this brought the following results –
- Personal abuse of the Owners wife
- Requests for a “pay off” of €20,000.00 to leave the company
- Verbal warning being issued to the Claimant
- Written warning being issued to the Claimant
Terms and Conditions of Employment had been given to the Claimant by the Respondent but apparently never signed by him, despite requests from the respondent. No apology was received in relation to the Claimant’s behaviour towards the owner’s wife.
The last contact appeared to have been on 5th September 2014 when a letter of termination was handed to the claimant. “See you in Court” was the claimant’s response.
The respondent indicated that an extra week’s wages was given to the claimant as a goodwill gesture. The respondent expressed regret at the claimant’s departure as the intention was never for him to leave.
Claimant’s Case:
The claimant commenced employment with the respondent on 8th October 2007. His role entailed warehouse duties, looking after deliveries and helping with the loading of vans. He worked alongside a van driver and an engineer.
His relationship with the respondent (MM) was quite good but they had their differences. He saw MM about five times a year as he worked from his home. He spoke to him on a regular basis.
He also looked after tele sales with a view to generating business for the company. MM’s wife (K) looked after the telephone calls and when she was on holidays the calls were diverted to his workplace. In 2011 the claimant reached agreement with MM to deal with all telephone calls and to be put back on a five day week.
On 3 September 2014 while he was helping to load the vans with A the telephone rang. As A was nearest the phone he answered the phone. He informed the claimant that the caller had hung up. Within a minute the claimant’s mobile phone rang. MM told him that he was being paid to answer phones. The claimant told him that he would ring him back. MM then arrived on the premises. The claimant told him that the phone only rang once and that he had been loading the vans. MM had a telephone call from an irate customer. The claimant arrived at work a quarter of an hour early each day and in that time he checked voice mails and missed calls. He never refused to answer the phone.
He checked the telephone and there were no missed calls. A tirade of abuse then ensued.
He remained working in the premises. In the following two hours or thereabouts they discussed a sage system being installed in the workplace. The existing system did not provide a purchase price. The claimant had to hand write every order. He wanted the tools to do his job. This new system would provide him with all the information he required. The claimant believed the company could afford it and the benefits it would reap for the company. MM did not agree. They discussed stock. At no stage did the claimant engage in a character assassination of MM’s wife or family. He never asked MM for €20,000 to move on. Nor at any time did he seek to be made redundant. He never asked for a pay increase of €60. He never knew what MM earned.
After some time MM left the premises. The claimant received a letter from MM on 4th September 2014. In that letter MM referred to him, his wife and family being subjected to an unprovoked verbal attack on their whole character. He also cited private matters being absolutely slated. He considered the claimant’s actions the previous day to be of gross misconduct and he was prepared to give the claimant another chance provided he offered a full apology to himself and his wife, that the issue at hand, being the phone being given priority above all other duties, that he sign a contract of employment and that he start treating his position as manager exactly as it should be. MM regarded this as a serious breach of company conduct and another instance of this would result in the claimant’s dismissal.
MM required a response the following day. The claimant was not in a position to respond until the following Monday. He spoke to MM and he said it was ok. MM telephoned him back and said ‘if you haven’t anything in the following day you are gone’. MM arrived into work the following day. As the claimant had not furnished any apologies MM took out a letter dated 5th September 2014 and told the claimant that he was fired. He asked the claimant to leave his sim card and his key and to leave the premises. He was not offered an opportunity to appeal his dismissal.
The claimant had worked hard and stayed late in the evenings if there was work to be done. He enjoyed working in the company.
The claimant secured alternative employment the following Monday but hurt his back and was unable to continue working. In January 2015 he secured an internship in a company through Job Bridge and worked there voluntarily until 27th May 2016.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this hearing over two days.
It is clear to the Tribunal that there is a conflict of evidence between the parties. The evidence of the Respondent was to the fact that a “row” which lasted over 2 ½ hours ensued between the parties where it is claimed that the Claimant made both personal remarks and professional criticism of the business. The Tribunal is of the view that to address any issues regarding the concerns of an employer regarding the employment of an employee in such a setting is not best practice.
It is for the respondent in such a case to prove that any dismissal of the Claimant was fair. The Tribunal finds that the respondent failed to follow fair procedures in the dismissal of the claimant to include the following matters:
a) After a letter was sent on the 4th September 2014, the Claimant gave evidence that he requested a period of time over the weekend in order to give an opportunity to reply to this letter. This request was discounted and/or time was not granted and the Claimant was dismissed by way of letter of the 5th September 2014. The time period requested was not unreasonable in the circumstances and where an employee had been in the employment of the Respondent since 2007.
b) The fact that the dismissal letter gave no right of appeal makes any dismissal fundamentally unfair.
c) The dismissal letter included several complaints or issues, which to the Tribunal were never raised before by way of grievance process or otherwise.
The Tribunal finds that the dismissal of the claimant was unfair.
It is unfortunate in this case that no request for details of loss of earnings/ job applications was made prior to the Hearing and similarly that such details and evidence in mitigation of the Claimant’s claim (to include full details with vouching evidence of all job applications made since the date of dismissal by the claimant) were not provided in advance of the Hearing. The Tribunal accepts that such documentation is not a formal requirement in any case, but it does assist both the parties addressing the issue of loss and also the Tribunal.
Taking all circumstances into account and all the evidence provided in assessing the issue of loss the Tribunal awards the claimant the sum of €30,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)