EMPLOYMENT APPEALS TRIBUNAL
against the recommendation of the Rights Commissioner in the case of:
Wincanton Ireland Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr C. McHugh
Ms. N. Greene
heard this appeal at Dublin on 30th May 2016
Appellant: Mr. Jack Tchrakian BL instructed by: Phelim O'Neill, Phelim O'Neill, Solicitors, 120 Pembroke Road, Dublin 4
Respondent: Mr. John Redmond, IBEC, Confederation House, 84/86, Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an employee (appellant) appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference: r-149447-ud-14/SR and the Payment of Wages Act, 1991, reference r-149075-pw-14.
The determination of the Tribunal was as follows:-
The appellant was employed by the respondent company as a General Operative from the 1st January 2007 to the 14th April 2014 and was paid a weekly wage of €524.30. The appellant had transferred to the respondent company from a previous employer under the Transfers of Undertakings Regulations on the 26th March 2007.
The appellant was employed as a Night Loader working a fixed night shift from the 9 p.m. to 5 a.m. approximately. His duties as a Night Loader was to load textile and home-ware products onto trucks for distribution to a major national retailer.
Towards the end of March 2014 the respondent company became concerned that there were recurring thefts at the premises. A decision was made that a full search of the employees on the night shift would be carried out. At approximately 4 a.m. on the morning of the 1st April 2014 the search of the employee’s lockers and their personal vehicles took place. A bag containing stock was found in the appellant’s car. The appellant stated someone must have placed it there in his unlocked vehicle. The appellant was suspended on full pay pending investigation.
On the 3rd April 2014 and investigation meeting took place, the meeting rescheduled on the 4th of April 2014. On the 8th April 2014 the appellant submitted a written statement containing alternative reasons why the items were found in his car. A disciplinary meeting took place on the 10th of April 2014.
A disciplinary out come was held on the 14th April 2014. The decision was made to summarily dismiss the appellant. He was notified in writing the following day.
The appellant lodged a claim for unfair dismissal and minimum notice to the Rights Commissioner. The Rights Commissioner found the appellant complaints were “not well founded” and rejected his claims.
The appellant appealed the Rights Commissioners Recommendations to the Employment Appeals Tribunal.
The, now, General Manager, gave evidence. It transpired during his sworn evidence that he was not involved personally in the initial search, the investigation or the disciplinary process involved in the appellant’s dismissal. No other witnesses on behalf of the respondent were present on the day of this hearing to give sworn evidence of the events that took place and the decision made as to why and how the appellant was dismissed.
The appellant gave evidence of his efforts to mitigate his loss of earnings since his dismissal from the respondent company he had worked for a period of seven years. There had been no prior disciplinary matters concerning the appellant during that time.
The Tribunal have carefully considered the sworn evidence adduced in this matter. The onus of proof rests on the respondent to prove, in all the circumstances, that a dismissal is fair. No direct sworn evidence was adduced on behalf of the respondent from any witness who had a direct role in the dismissal of the appellant.
Based on the evidence adduced the Tribunal finds the appellant was unfairly dismissed. The Tribunal are not satisfied the appellant made sufficient attempts to mitigate his loss of earnings and accordingly, the Tribunal upsets the Rights Commissioners Recommendations and awards the appellant the sum of €500 (five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal also awards the sum of €2,094.40, this being four weeks gross wages, for the appellant’s claim for minimum notice under the Payment of Wages Act, 1991.
Sealed with the Seal of the
Employment Appeals Tribunal