EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE , UD1348/2011
-claimant
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
Chairman: Ms M. Levey B.L.
Members: Mr. W. Power
Mr. A. Butler
I certify that the Tribunal
(Division of Tribunal
heard this claim at Dublin on 16th May 2013
Claimant:
Respondent:
Respondent’s case:
The Tribunal heard evidence from the general manager (RL). He explained that they had 25 employees which reduced to 11 employees in 2006 and at present they have 6 employees.
The employees are the managing director (JVM), an engineer, a laboratory person, a driller and a second man who is a filler and himself. The claimant initially worked as a second man on the drill rigs. He worked his way up to become a driller.
The witness explained that from 2009 the work was drying up and circa 50% of the work time was short-time. They examined making positions redundant towards the end of 2011.
Annual leave is one week at Christmas, two weeks in the summertime and one other week. All annual leave requests are made to him. The claimant had requested unpaid leave circa 2010 and he was granted the leave.
On 12th April 2011 the claimant called into his office and asked to take unpaid leave. The witness explained that the week of 25th April was Easter week. (Easter Sunday 24th April 2011) Also that Easter week is paid leave and the company closes down. The claimant wanted to take the week before and after Easter week as unpaid leave. He told the claimant that he would have to think about it as they were quite busy. At the time they had jobs in Dundalk, Drogheda, Dublin Airport and Enniscorthy. They had five or six contracts going and “contracts are king, critical.
The claimant was due just one week’s holidays and the was the Easter holiday. The claimant could not say that he booked his flight on the basis he agreed because from documentation the witness saw the claimant had booked his holiday in March.
He looked at the work schedule that they had and on that basis he could not grant the claimant the unpaid leave. He phoned the claimant on 13th April and left a message telling the claimant it would not be possible to take the leave. The claimant did not return his message and he was concerned so he phoned the claimant’s work colleague (JM) the next day, Thursday 14th April. JM put him onto the claimant and he told the claimant that unpaid leave was not possible because he would have to take on other staff. The claimant told him that he had booked his tickets. He told the claimant that if he took the leave it could lead to disciplinary action. He wrote to the claimant on 15th April confirming that the leave was not granted.
The claimant did not turn up for work on Monday 18th April. The claimant did not contact him
The claimant did not turn up for work on other dates. The claimant did not contact him nor did he send in medical certs. He had to take on a temporary employee for Tuesday Wednesday and Thursday of that week.
From the claimant’s own request he was due to return to return to work on the 9th May 2011. The claimant did not return to work on 9th May. He wrote to the claimant to say that he was to attend a disciplinary meeting on 13th May, to discuss the claimant’s failure to follow management instruction, his unauthorised absence, his failure to contact the company as to his whereabouts, his failure to submit medical certs to cover his absence and his intentions with respect his return to work. He was invited to bring a representative of his choice.
The claimant attended a meeting on 13th May. He did not bring anyone with him nor did he have a representative. They sat down in the office and he handed the claimant the code of practice. He asked the claimant why he did not turn up for work and the claimant told him that he had been waiting for a phone call from him. He said he had booked the flights a month previously but had only paid for them on the strength of being allowed to take leave. The claimant said no more apart from saying that he had been looking after his farm overseas and that his holidays had been booked. The meeting ended.
He decided to dismiss the claimant by letter of 24th May 2011 and the letter was opened to the Tribunal. The claimant was permitted to appeal his dismissal to the managing director. The MD upheld the decision to dismiss the claimant and a letter dated 16th June was sent to the claimant explaining this.
The witness explained that after this the claimant would almost certainly have been made redundant in September 2001 because of the company situation.
Claimant’s case:
The claimant told the Tribunal that his relationship with the respondent was good. He never got a formal warning from his employer.
He had taken the holiday for the past six or seven years. He had paid €200 to €300 off the holiday.
Regarding the holiday he phoned/met RL and said to him that he was going to take holidays the week before and after Easter. RL told him that it was ok, not a problem. When he finished work he went to the travel agent to pay the balance of the flight.
Then a work colleague phoned him to tell him that RL was mad at him for taking the jeep. He spoke to Rl over the phone and RL told him that he could not go on holiday. He told RL that he had paid nearly €1,000.00 and that he had already told him that he could go. RL told him that if he went he would be fired.
He went on holidays and when he returned he spoke to RL. He was given a letter and he had looked at this letter on the morning before he went to the meeting. He was not given a disciplinary code handbook.
RL said to him that he had caused him to employ two other temporary employees. He told RL that he had allowed him to go on the holiday and he had paid for the holiday.
He appealed his dismissal to JVM and he told JVM that RL had allowed him to go on the holiday.
The claimant gave evidence as to his losses.
Determination:
Having considered all the evidence adduced the Tribunal is satisfied that the claimant was not unfairly dismissed. Even allowing that there may have been a misunderstanding between the claimant and the respondent vis a vis the granting or not of annual leave the letter of 15th April 2011, categorically informed the claimant that if he took leave that it would result in the disciplinary process being instigated. Notwithstanding, this the claimant took leave.
The claim under the Unfair Dismissals Acts, 1977 To 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)