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EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Yasir Azad, Apartment 170, Block C, Arus Na Clanui, Clondalkin, Dublin 22 - Claimant UD2311/ MN2256/ Against
Tesco Ireland Limited, Gresham House, Marine Road, Dun Laoghaire, Co Dublin - Respondent
under UNFAIR DISMISSALS ACTS, 1977 TO 2007 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal (Division of Tribunal)
Chairman: Mr. P. O'Leary B. L. Members: Mr. D. Winston Ms. E. Brezina
heard this claim at Dublin on 10 April 2012 and 7 June 2012
Representation:
Claimant: Hughes & Liddy, Solicitors, 2 Upper Fitzwilliam Street, Dublin 2
Respondent: Mr. Gary O’Mahony, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
IK gave evidence of being the line manager at the store where the claimant worked at the time. Two employees approached him expressing their unhappiness working with the claimant on the night shift. One employee (KN) the night manager said that the claimant would not take instruction from her and the second employee (LM) agreed it was difficult working with the claimant. He referred the complaints to his manager.
RG the store manager at the time was informed of the complaints from the two employees. She told the Tribunal that she spoke with both employees and they were afraid of the claimant. KN and LM told her of threatening remarks made by the claimant. She was told how the claimant offered between €8,000 and €15,000 to each of them for a paper marriage as his visa was running out. KN was concerned that the claimant would not take instructionfrom her becauseshe had refused to marry him. She had an informal meeting with the claimant followingspeaking with the two employees. She put the issues to him and was of the view that he had anissue with taking instruction from KN as he had more service than her and she was now atrainee manager. She was told of comments the claimant made about her from time to time butas she had no proof of the accuracy she did not discuss the alleged comments
with him. Sheheard how the claimant said that if she spoke to him in a certain manner that he would slap her.
RG said she had supervised the claimant for almost two years and agreed there were no previous issues. She considered his performance and conduct prior to this as good. The witness denied that at the informal meeting she had with the claimant on the 10 April 2010 that she discussed deep rooted personal issues. In reference to a Facebook link titled “females are horrible managers” which included her picture she stated she was not aware of its existence until after the meeting in and around the 12 April. The Facebook link was brought to her attention by her brother also an employee. She agreed that she could not prove who set up the page or who was the author of the comments.
The witness told the Tribunal that she did not report the threats to staff and the offers of money for marriage to secure a visa to the Gardaí as the respondent had an internal policy and procedure to deal with the matter. She investigated the complaints made by staff, she believed they were frightened and distressed and passed on her notes to another manager and she did not conduct or attend the disciplinary meeting.
KN in her evidence told the Tribunal she commenced employment in October 2007 at the store and in October 2009 commenced night shift duty. The claimant offered her €8,000 if she would marry him and on a second occasion offered her between €10,000 and €15,000 saying he needed a visa. Following her refusal on both occasions he became rude and ignored her requeststo carry out certain tasks. He had no respect for her and she was scared working on the nightshift with the claimant.
She said the marriage for money offer was put to her on three or more occasions. She didn’t complain at the time and continued refusing the offers. The witness stated that she only became fearful when her colleague (LM) told her that the claimant had said he wanted to cut her head off. She was unable to confirm the dates of the incidents and could not recall exactly what brought the issues to a head on the day she complained to her manager. She admitted that she had thought she could handle the problem herself without reporting each incident to her manager but in the end had to complain.
LM told the Tribunal that the claimant had said to her he would like to cut KN’s head off and put it on the roof of the store. On another earlier occasion a jar of beetroot was broken on the floor and he commented that it was KN’s blood on the floor. She told of her fear and was scared of the claimant’s behaviour. The claimant offered her money for marriage and said he needed a visa but she refused and told him she had a boyfriend. She was offered up to €4,000 for a paper marriage.
MH gave evidence of knowing the claimant and working with him. He had completed a course in event management which involved the study of social media platforms including facebookand twitter. He was friends with the claimant on facebook and received an invite from him tojoin a link titled “females are horrible managers”. He did not join and referred the details to RGhis sister. He did not know who set up the page referred to in his evidence. ED for the respondent company outlined how he was selected from a group personnel panel to investigate the allegations made against the claimant and later conducted a disciplinary meeting. As part of the investigation process he met with witnesses including IK, NA, KN and LM and took statements. The issues addressed included
opportunity to cross examine those whohad made the allegations. He was concerned that in one statement reference was made to himbeing an extremist which he interpreted as a terrorist. The claimant denied sending the “femalesare horrible managers” link to MH. He denied threatening to slap RG and he denied offeringmoney for marriage to any of his colleagues.
The claimant’s brother a former employee of the respondent outlined to the Tribunal that he met with RG as he was concerned about what was happening with his brother. RG told him she would fire the claimant and call the Gardaí to deport him as he was ruining her career. She asked him to get his brother to admit to the allegations.
Determination
The Tribunal considered the evidence given in this case and the procedures used. The main complaints made against the claimant were;
· That he did not follow instructions · That he made illicit offers of proposals of marriage to female staff · That he made threats to staff · That he exhibited a picture of and made derisory comments about a manager on Facebook
It was noted by the Tribunal that the claimant was summoned to an informal meeting by the said manager despite her being aware of the allegation made against the claimant in respect of Facebook. While this may not have been seen by the employer as part of the disciplinary procedure the Tribunal determine that it was part of the disciplinary procedure used. The Tribunal determines that the claimant should have been provided with a copy of the allegations made against him at this meeting. The complaints made by the two female staff about the claimant were such that when made were so prejudicial that their probative value was diminished. The Tribunal prefers the evidence of the claimant on these issues. A language interpretation problem may have been a factor in these matters. There was no clear evidence that the staff member that gave the claimant instructions was in fact senior to the claimant however the Tribunal accepts that the claimant was wrong in not following those instructions. No evidence whatsoever was produced to the Tribunal that the claimant was the author or instigator of the Facebook picture or comments. The Tribunal determines that the claimant was unfairly dismissed. However he did contribute to that dismissal by not following the directions given him.
The Tribunal award the claimant the sum of €7,500.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal further award the claimant €467.52 in lieu of two weeks minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________ (CHAIRMAN)
