EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE UD1136/2011
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan BL
Members: Mr. C.A. Ormond
Ms. M. Mulcahy
heard this case in Dublin on 23-24 January 2013 and 26 March 2013
Representation:
_______________
Claimant(s):
Mr. Brendan Foley instructed by
Maurice Leahy, Wade & Co, Solicitors,
Archway House, The Plaza, Swords, Co. Dublin
Respondent(s):
Mr. Frank Beatty BL instructed by
Mr Killian O'Reilly, O'Rourke Reid & Co., Solicitors,
Pepper Canister House, Mount Street Crescent, Dublin 2
The determination of the Tribunal was as follows:-
Having considered the evidence adduced at the hearing, the Tribunal finds that the bona fides of the medical certification of the claimant’s absences from illnesses during the period the claimant commenced employment with the respondent on 16th April 2007 until his employment was terminated on 16th August 2010 was accepted by the respondent. The Tribunal is of the opinion that dismissal procedures regarding absences due to illness should ideally involve medical certification as to fitness to work or otherwise and therefore the Tribunal disregarded these absences.
The Tribunal notes that the EMPLOYER disciplinary policy and procedure provides that absences from work resulting in abandonment of duties is conduct warranting discipline but the Tribunal makes no finding as to whether this includes or should include absences due to undisputed certified illness.
The Tribunal then considered the evidence regarding the other allegations levied against the claimant of smoking airside, insubordination and leaving work early. The Tribunal also considered the procedures used in effecting the dismissal and whether the sanction of dismissal was proportionate to the misconduct alleged.
Whereas the Tribunal disregarded the claimant’s absences due to certified sick leave nonetheless the claimant was made aware that the respondent was unhappy about the continuous absences and expected an improvement. Notwithstanding this knowledge the claimant, inter alia, informed the respondent that he would try to improve but could not guarantee it, became argumentative and insubordinate with his line manager regarding requests for days off from his annual leave allocation, was found smoking airside shortly after being told not to do so and knowing it was unlawful and left work early on one of the days he had been called to an investigatory/disciplinary meeting.
The Tribunal, having considered the claimant’s evidence in cross-examination, finds that he made no effort to reassure the respondent and had a casual attitude about engaging in conduct that could result in the respondent invoking disciplinary measures against him. The Tribunal accepts that the claimant may not have intended this but, from the point of view of the respondent and taking into account the importance of the claimant’s job, the Tribunal finds that the claimant’s conduct was such that in all the circumstances the dismissal of the claimant was a reasonable response to the situation.
The Tribunal finds that the procedures used by the respondent in effecting the dismissal overall were fair albeit that the Tribunal did note some shortcomings such as the notification given to the claimant regarding two of the meetings and that GM, the complainant of one of the allegations, signed the letter informing the claimant of his dismissal. The Tribunal finds that these shortcomings did not materially affect the outcome.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007,fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)