EMPLOYMENT APPEALS TRIBUNAL
Murphy Contract Cleaners Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan B.L.
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this claim at Waterford on 3rd June 2016 and 18th July 2016 and 19th October 2016
On the first day of hearing: Ms. Carmel Goggin B.L. instructed by H R Delahunty, Solicitors, 55 Johnstown, Waterford
On the second and third day of hearing: Mr. Hilary Delahunty, H R Delahunty Solicitors, 55 Johnstown, Waterford
Respondent: Mr Joe Bolger, ESA, Novum Building, Clonshaugh Ind. Est., Dublin 17
This matter came before the Tribunal by way of a claim for unfair dismissal. The claimant commenced employment with the respondent on 3rd November 2014 and was dismissed on 15th May 2015. Accordingly, the claimant did not have one year’s service.
The respondent made a preliminary application that as the claimant did not have the one year’s service requirement the Tribunal had no jurisdiction to hear the claim. The claimant said because his dismissal resulted from his trade union activities the one year’s service requirement did not apply to him.
The legal representative for the claimant submitted that the matter as to whether the claimant was required to satisfy the one year’s service requirement or not could not be determined as a preliminary issue.
The claimant in evidence said he was a member of Waterford Branch of SIPTU and that there was dissatisfaction amongst staff regarding pay and hours towards the end of April 2015. He said he spoke to staff at a meeting regarding signing up to SIPTU and it was following the meeting on 15th May 2015 that he was dismissed. Therefore his dismissal was a result of these trade union activities and he was not required to have one year’s service in order to take a claim for unfair dismissal. The claimant opened to the Tribunal copies of SIPTU application forms which he says were completed by the staff members in question.
Having heard the evidence of the claimant, the Tribunal determined that it is, as submitted by the legal representative for the claimant, difficult to separate the preliminary issue and the substantive matter and accordingly a full hearing was deemed necessary following which a determination would be made on the preliminary issue and on the substantive matter if it was established that the Tribunal did have jurisdiction.
The respondent’s case:
TT, manager for the Respondent, gave evidence that the claimant was a supervisor. He said he spent 90% of his time with the claimant and he gave him advice and help. In cross-examination TT’s evidence was that he never said that the claimant’s work was below par and he accepted that he never said anything about poor work of the claimant.
PM, for the respondent, said he was the owner. He visited the site where the claimant was to check progress and management. He said on a weekly basis he walked the site. On the day in question he could not contact the claimant on the company mobile phone so he went down to the site to discuss what was happening.
He said the claimant had moved from construction cleaning to contract cleaning which paid a lower hourly rate of pay. He told the Tribunal that in late April 2015 he meet staff in the canteen to discuss matters of pay, changes in rosters and night work.
PM said he had no knowledge as to whether the claimant was seeking to recruit people to join a union or not.
He said that the claimant shouted inappropriately at other employees and that there were missed communications. He said the claimant was not suitable for the job, there was difficulty contacting him so he took the phone and badge from the claimant and told him he was suspended. It was put to PM in cross-examination that he never spoke to the claimant regarding poor performance or being below par and this was accepted by PM. It was put to PM that the claimant would say he asked PM why would you suspend me and he was told because “you have been organising meetings”. This was disputed by PM.
RD, warehouse operative for the respondent, said that he got the SIPTU membership forms, he filled them in and he got the employees to sign them. In April 2015 he went into work and the claimant told him about a meeting and spoke about a rate cut of €1 per hour for cleaners and €4 per hour for forklift operatives. RD said he was moving to the role of forklift operative and was concerned. He said “I took it upon myself” to print off the membership forms and got the fellows to sign up”. He said he didn’t want to go behind the claimant’s back, as he was the supervisor, so he told him what he was doing. The claimant said to RD “fine”. RD said the claimant had no involvement in the union forms. That day, 7th May 2015, RD said the forms went missing from his locker. RD said he later spoke with PM and management and realised that they were misled by the claimant regarding the cut for forklift operatives. When the claimant was suspended and dismissed RD was offered and accepted the claimant’s role as supervisor on a temporary basis.
It was put to RD, in cross-examination, that he was not friendly with the claimant and RDagreed. RD accepted that the claimant organised the meeting on 7th May 2015 and that the claimant spoke in front of about 18 to 20 employees about money and other terms of their employment. It was not a premeditated meeting; there was short notification and the meeting was at 11 a.m. He said he told the claimant that he had got people to sign up to the union and the claimant said “fine”.
The claimant’s case:
The claimant said he was 34 years of age, a qualified carpenter and a family man with 2 children and another on the way. He said he worked for the respondent from 3rd November 2014 to May 2015 as a supervisor on a particular site. He had worked at the site prior to commencing with the respondent but at that time it was a construction site rather than a manufacturing plant. He said PM, the owner, spoke to him once or twice per week. He thought the relationship was good with no unpleasantness and poor performance never raised. He said he was always available to answer the phone. He dealt with MK, for the respondent, regularly. The claimant said things were going fine up to the middle of April 2015.
PM met with staff regarding changes on site such as night shifts, weekend shifts, pay cuts and employees being let go. The claimant said the employees were in a state of panic and that there were on-going talks with staff regarding changes. He spoke to NB and LO’S of from the client site regarding the proposed changes. He spoke to PM and MK for the respondent and told them staff were not happy with the changes, pay changes and changes in shifts. He said he spoke to RD regarding union activities and the staff agreed “we call a meeting”. He said RD was at the meetings and he spoke like everybody else. The union was discussed. He said “we felt we had no choice but to sign up”. Regarding the origin of the forms he said he printed them on the client’s printer and that only he had access to this printer not RD. The claimant said he got everybody to sign the forms which he had given out the previous week. He said the meeting was organised at tea time (10.00 a.m.) and people were told about it. He said RD told him the meeting was at 11.00 and that RD was enthusiastic regarding the union but that he, the claimant, was the main speaker at the meeting.
He said 20 minutes after the meeting he went back to his daily work and got a phone call from PM who was to “come down for a chat”. He met PM outside the canteen in the yard. He was asked for his phone which PM retained and was told by PM that he was suspended for one week to investigate “what I was up to”. There was a reference to a meeting and staff.
The claimant said he went to the security desk at the client site to hand back the camera and files which he considered belonged to the client and not to the respondent.
The claimant who secured alternative employment as a carpenter on 28th October 2015 gave evidence of mitigation of loss.
At the request of the Tribunal it was confirmed that it was the claimant’s case that he was dismissed for “trade union activity”.
The Tribunal finds that unless the claimant can bring himself within the ambit of section 2(1) of the Unfair Dismissal Act 1977 as amended by section 14 of the Unfair Dismissal Act 1993 he is excluded from the application of the Act of 1977. Section 2(1) and section 14 provide as follows:-
2.—(1) This Act shall not apply in relation to any of the following persons:
(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,
14.—Sections 2 (1), 3 and 4 and subsections (1) and (6) of section 6 of the Principal Act shall not apply to a person referred to in paragraph (a) or (b) of the said section 2 (1) or the said section 3 or 4 who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of the said section 6.
Section 14 has removed the exclusion of an employee with less than one year’s service if the dismissal results from matters referred to in section 6(2)(a) of the Act of 1997. Section 6(2)(a) provides as follows:-
Section 6(2)(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 so to engage
Having considered the evidence of the parties adduced at the hearing the Tribunal finds as follows:-
1. That the claimant may have failed to realise that the respondent and not the respondent’s client was his employer. This finding is supported by the fact that the claimant went to the client’s personnel regarding the proposed changes. These actions by the claimant had the potential to damage the relationship between the respondent and his client and could result in a loss of trust and confidence between the respondent and the claimant. This finding is also supported by the fact that the claimant returned the camera and the files to the client rather than to the respondent.
2. The Tribunal does not accept that it was the claimant who instigated, distributed and completed the SIPTU application forms but rather that this was done by RD.
3. The Tribunal is satisfied that the claimant was not dismissed because of his membership of SIPTU. This is supported by the fact that RD was not dismissed despite informing the respondent of his intention to join SIPTU and that he had encouraged other employees to join up.
4. The Tribunal does not accept the reason advanced by the respondent for the dismissal of the claimant. However, the Tribunal is satisfied that the claimant was not dismissed for engaging in trade union activities within the meaning of section 6(2)(a) as even if the claimant had engaged in trade union activities the alleged engagement was not outside hours of work or at times during hours of work in which the claimant was permitted pursuant to the contract of employment between him and the respondent so to engage.
5. There was no evidence that there was a term in any agreement, oral or otherwise, between the claimant and the respondent permitting the claimant to engage at certain times during working time in trade union activities.
In the circumstances the claimant is not entitled to the benefit of section 2(1)(a) as amended and accordingly his claim under the Unfair Dismissals Acts 1977-2007 cannot be maintained.
Sealed with the Seal of the
Employment Appeals Tribunal