FACTS
The claimant was employed as a Warehouse Operative with the respondent since 23 March 2007.Â
The HR Manager of the respondent company, who was not employed with the respondent at the time of the incident giving rise to the claim of unfair dismissal, gave evidence based on file records. She stated that on 19 December 2010 the claimant refused to carry out an instruction by a supervisor, S. As a consequence, S informed the Night Shift Manager and both parties were called into the office by the Night Shift Manager. According to the respondents’ records, the claimant stated that he was given an instruction by a work colleague and he was not aware that his work colleague was a supervisor. In the course of the meeting, the Night Shift Manager referred to a meeting which took place two months prior, when it was indicated that the employee in question had been appointed as a supervisor.Â
The HR Manager gave evidence that, according to the file notes, the claimant demanded a letter at a meeting on 21 December 2012, confirming that the employee had in fact been appointed as a supervisor. The notes also indicated that the claimant was disrespectful and refused to apologise. The claimant was dismissed. He did not appeal the dismissal. Neither the Night Shift Manager nor the HR Manager at the time were available to give evidence before the Tribunal.
In giving evidence before the Tribunal, the claimant stated that he was approached by the employee, S, on 19 December 2010, who told him to do the checking. The claimant said ok but indicated to S that the reason he had to do S’s work was that S had been talking all night. S told the claimant that it was none of the claimant’s business and then went to speak to the Night Shift Manager. The claimant gave evidence that the Night Shift Manager told the claimant that S was the supervisor and instructed S to go home. The claimant indicated that he was not aware that S was a supervisor. He also stated that he did not refuse to do the task and he denied asking for a letter stating S was a supervisor.Â
The claimant stated that he received a dismissal letter approximately one week after the incident and he has no idea why he was dismissed. The claimant said he was not aware of any investigation into the matter and he did not appeal the dismissal as he did not know how to initiate an appeal.Â
The claimant gave evidence regarding loss and his efforts to mitigate the loss.Â
Evidence was also given by CB, who had been asked to translate the exchange between the claimant, the Night Shift Manager and S on 19 December 2010. CB stated that the claimant accepted that S was a supervisor and then went home following instruction from the Night Shift Manager.
Further evidence was given by AD that AD was not aware that S was a supervisor. He stated that the claimant said he would carry out the instruction given to him but pointed out to S that because he was talking all night meant the claimant had to do the work of S.Â
DETERMINATIONÂ
The Tribunal noted that the facts as delivered by the claimant were at odds with the facts as delivered by the respondent.
The Tribunal stated that even if the evidence of the respondent was accepted in its entirety, no fair procedures were followed in respect of the incident. The Tribunal noted the claimant was summarily dismissed for allegedly being disrespectful to a superior, without being given any warning that he might lose his job, or any opportunity with advance notice to present his case.Â
The Tribunal awarded the claimant €20,000 under the Unfair Dismissals Acts, 1977 to 2007.
LEGAL REVIEW
The respondent company had a number of difficulties with its case prior to hearing. Firstly, they did not have the two relevant witnesses, namely “S” and the Night Shift Manager. This meant that the only evidence available was that of the claimant, and of CB and of AD. Secondly, and perhaps more problematic, the HR Manager could not give evidence as to the procedures that were followed but merely state what was contained on the record of the HR file.Â
The EAT is primarily a forum for oral evidence. Written evidence can only be strictly speaking adduced where the written evidence is proved by a person giving oral evidence. Typically this involves the evidence being given by the person who drafted the document or letter, or by the person who received such document or letter.Â
Whilst EAT cases typically take more than the initial day of hearing, the lack of evidence on behalf of the respondent meant that the matter could be disposed of quickly on the first day of hearing. Unfortunately for the respondent it also meant that an award was made against it, which was substantial (€20,000) given the employment position occupied by the claimant.Â
Full Case Decision:
http://www.eatribunal.ie/determinationAttachments/3b7fe56d-0af0-4b90-a2ef-1fac2f3aaf4a.pdfÂ
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