John Hennessy v Castle T. Furniture Ltd
| Jurisdiction | Ireland |
| Judgment Date | 21 April 2009 |
| Judgment citation (vLex) | [2009] 4 JIEC 2104 |
| Date | 21 April 2009 |
| Court | Employment Appeal Tribunal (Ireland) |
Employment Appeals Tribunal
EAT: John Hennessy (claimant) v Castle T. Furniture Limited (respondent)
Unfair Dismissal - Termination of employment - Allegations of bullying - Fair Procedures - Trade union membership - Whether employee unfairly dismissed - Unfair Dismissals Acts, 1977 to 2007 - Minimum Notice and Terms of Employment Acts, 1973 to 2005 - Organisation of Working Time Act, 1997.
EMPLOYMENT APPEALS TRIBUNAL
| CLAIM(S) OF: | CASE NO. |
| John Hennessy, 47 Derrynane, - claimant | UD745/2008 |
| Old Cork Road, Limerick | MN687/2008 |
| WT312/2008 |
against
Castle T. Furniture Limited, - respondent
24 Glentworth Street, Limerick
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
| Chairman: | Ms. P. Clancy |
| Members: | Mr. G. Phelan |
| Mr. A. Kennelly |
heard these claims in Limerick on 18 February 2009 and 21 April 2009
Facts The claimant had begun working for the respondent in 1986 sweeping the floor and had then worked on machines. The respondent manufactured office furniture. The claimant assembled units and then started doing the spraying of units and desktops. After a number of years the spraying was affecting the claimant's health and he started doing screens for desktops. The claimant contended that he had started running into difficulties from management when he joined a trade union. The claimant had been repeatedly bullied and harassed. It was contended that a particular incident had occurred when he was asked to do a certain task. The claimant had felt that owing to a back injury he was unable to carry out the task in question. It was claimed that a director of the company had shouted at him in an abusive fashion, told him to leave and had physically run him off the premises. The respondent denied that the claimant had been dismissed or constructively dismissed; contending that the claimant had terminated his own employment. It was denied that the claimant had been shouted at, abused bullied or harassed in any way but that he had been asked to leave and get a medical certificate. Witnesses, who had been there on the day in question, gave evidence to the tribunal, that the claimant had been shouted at, abused and escorted off the premises by the director in question.
Held by the Employment Appeals Tribunal in finding of the claimant. Having carefully considered the evidence adduced, the Tribunal, preferred the evidence of the claimant and his witnesses. The claimant had been unfairly dismissed. The Tribunal was not completely satisfied that the claimant did everything he could to mitigate his loss by seeking new employment. The Tribunal deemed it just and equitable in the circumstances of this case, to award the claimant the sum of €10,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal would also award the claimant the sum of €2,557.86 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The claimant claimed to have worked for the respondent from 1986 to 13 May 2008 when he was dismissed, without any prior warning or notice, after being shouted at and abused by a respondent director (hereafter referred to as RD) in the presence of a number of employees on the factory floor. The claimant alleged that RD had shouted at him to get out and had physically run him off the premises by following the claimant around and repeatedly urging him to get out. The claimant further alleged that he had been repeatedly bullied and harassed by RD over the preceding months. It was also claimed that there were three days of holidays sdue to the claimant.
The respondent denied that the claimant had been dismissed contending that the claimant had terminated his own employment and denying that the claimant had been constructively dismissed. It was denied that the claimant had been shouted at or abused in any way by RD or by any employee or agent of the respondent. It was also denied that the claimant had been bullied or harassed in any way.
Giving sworn testimony, the claimant said that he had begun working for the respondent in February 1986 after having been interviewed by RD. The claimant started by sweeping the floor and then worked on machines. The respondent manufactured office furniture. The claimant was assembling units and then started doing the spraying of units and desktops. Asked if had received training, the claimant replied that he “kind of picked it up”.
After about ten years the spraying was affecting the claimant's health because the fumes were so strong. He started doing screens for desktops covering them with film. There were partitions for offices. Then the work “went slack” and it went from four to two men. He often went on a forklift and did cleaning up. He did “anything to keep going”. The claimant's foreman (hereafter referred to as F) would always give him work. If T was off the claimant would not know what to do.
The claimant could not recall getting a contract. He “was just taken on”. He was never warned as to his performance. There was no problem until an incident at Xmas 2007. He had had no interaction with-RD-before—that.-F—would-always give the claimant work—and-the claimant would-do-it. -RD would often ask the claimant to do “this and that” and the claimant would do it.
About ten or eleven “lads” asked the claimant to join a trade union. The claimant did not do so. A few “lads” that were now all gone from the respondent said that the respondent did not want people joining a union. The claimant joined.
The claimant told the Tribunal that he felt that he was being “hassled” when he had joined the union. The respondent started “coming down” on him. The respondent got a letter from the union that the respondent owed backpay.
The Tribunal was furnished with a copy of a letter dated 28 January 2008 from RD to the claimant telling him that the respondent was implementing wage increases, that his new rate of pay would be Eur. 10.99 per hour and that the claimant's arrears of pay from 1 January 2007 to 21 January 2008 would be paid to him over four weekly payments commencing in the week ending 1 February 2008.
The claimant got the increase to Eur. 10.99 per hour. This applied to all union members. RD had “a different manner” to him then. The claimant felt as if he had just started. When he went in to work at 8.00 a.m. RD's brother would be straight over to him. The claimant hardly got time to put on his workboots.
The claimant told the Tribunal that he had a back problem. The respondent wanted things done differently from the way that the claimant had done them. The claimant had been doing tall units. He could not do units on benches like the respondent wanted because he had a slipped disc in his back. He had got the slipped disc in March or May of 2006 after his car had been hit by another car. He had told F that he had a slipped disc. F had asked for a letter. The claimant could not do any heavy lifting. (The Tribunal was referred to a note from a doctor saying that the claimant had back pain and was unfit for heavy work.) The claimant told the respondent that he could not do work on a bench because of his back. The respondent said that it wanted the work done on the bench. RD told him this.
Two or three months later, the claimant was outside the respondent's building. A colleague (JOD) had been working with him in the factory. JOD was having a cigarette. RD came out. The claimant was walking back in after putting rubbish in a skip. RD asked the claimant what he was doing and said that the claimant was smoking. The claimant said that he did not smoke. RD said that it was not a rest home. RD roared at F that the claimant was out back smoking. F replied that the claimant did not smoke.
One morning (13 May 2008), the claimant was working away at 8.00 a.m.. F gave him fifty or sixty pedestals to do. The claimant was assembling them. He told F that he could not lift because he had a bad back. There were two Poles present. RD came over and said: “Come on.” The claimant said that he had a bad back. RD said that no-one had told him about this. The claimant gave him a note. RD started to give out and told him that there was no work. The claimant said that he could not go on the truck. RD said that there was no other work. The claimant said that he had pedestals to do. RD said: “Get out of the factory!” The claimant said that he had to get his shoes and his jumper. RD said: “Get the fu** out of the factory!” The claimant went to get his jumper. RD said that the claimant was “like all the rest” and that all that the claimant wanted was money. F and JOD were present as well as the two Poles.
The claimant got his jumper and changed his shoes. RD, stating that there were no more screens to -be-done,-said:-”Get-out-of my fu**ing factory!” Before -the-claimant — left-he-asked if he was being let go. RD said: “Get the fu** out of the factory. There's no work there for you.” RD was very violently roaring and using terrible language. RD walked the claimant to the door.
The Tribunal was referred to a letter dated 16 May 2008 from RD to the claimant stating:
“I refer to the incident which occurred on Tuesday morning 13th May 2008, where you refused to carry out a legitimate request by your employer regarding delivery to one of our Customers.
I informed you that the Doctor's Certificate you provided was over six months old and asked you to go away and get an up-to-date Certificate certifying that you were either fit for work or giving medical reasons for your inability to...
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