EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE UD1120/2011
MN1212/2011
against
EMPLOYER
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Taaffe
Members: Mr. W. Power
Mr. C. Ryan
heard this claim at Dublin on 2nd November 2012, 27th February 2013, 28th February 2013 and 22nd July 2013.
Representation:
Claimant: The claimant in person
Respondent: Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8
Respondent’s case
The claimant commenced employment with the respondent as an established Civil Servant on 23rd November 2009 and was to serve a probationary period of one year. The respondent wrote a letter dated 15th November 2009 informing the claimant that his contract of employment was to be terminated with effect from 22nd November 2010. This decision was verbally relayed, by phone, to the claimant some hours after he had finished work on 15th November 2010. The letter was handed to the claimant on 16th November 2010 early in his shift of 16th November 2010. The claimant was not paid for 22nd November 2010. Therefore the respondent held that the claimant did not have a year’s continuous service and that the Tribunal did not have jurisdiction to hear his claim under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal decided that it did have jurisdiction to hear this claim and therefore the respondent continued to present it’s position in respect of this claim.
The person (SA) who made the decision to dismiss the claimant told the Tribunal that he did so based on the overall attendance record of the claimant and the import of this on his ability to provide reliable service going forward. The claimant was absent on certified sick leave on 5 separate occasions for a total of 17 days. The Tribunal was given a copy of the claimant’s sick leave record, written warnings (2) and probationary reports (2).
The first written warning was dated 24th March 2010 in respect of 10 days sick leave taken up to that date.
The second written warning dated 30th April 2010 was in respect of a further 6 days sick leave taken up to that date.
The first probationary report dated 3rd June 2010 makes reference to the claimant having been verbally warned about his sick leave absences and been advised as to future absences. The author of this report and his superior officer recommended confirmation of appointment of the claimant at this date.
The second probationary report dated 23rd August 2010 makes reference to the fact that the claimant had no sick leave absences since the previous probationary report. The author of this report and his superior officer recommended confirmation of appointment of the claimant at this date.
There was a further 2 day absence on certified sick leave from 30th September 2010 to 1st October 2010 inclusive.
The H.R. Officer for the respondent recommended that the claimant’s contract be terminated and SA agreed with this recommendation and the letter of 15th November 2010 issued in accordance with that decision.
Claimant’s case:
The claimant contended that his record improved after he received the written and verbal warnings and that the sick leave incurred on 30th September and 1st October 2010 was due to an infection he contracted from being spat in the face in the course of his duty. He also referred to a two day absence on “Force Majuer” from 14th October 2010.
Immediately after being dismissed the claimant began to apply for alternative employment but has had no success. He has been caring for his seriously ill Father for some time but other members of his family would be available to take his place should he secure employment.
Preliminary issue:
A preliminary issue arose in respect of whether the Tribunal had jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007. The respondent contended that the claimant had less than one year’s continuous service as his notice expired before 22nd of November 2010 and was therefore excluded from the Acts by virtue of section 2. (1)(a) of the 1977 Act.
It was common case that the claimant commenced employment on 23rd November 2009 and that on the 15th November 2010, having already finished work for that day, he was verbally given notice of termination of employment. The claimant was handed written notice of termination of employment on 16th November 2010. Therefore, notwithstanding the fact that the written notice was dated 15th November 2010, the claimant’s notice only took effect from 16th November 2010. Accordingly the Tribunal awards the claimant €119.80, being pay for one day, under the Minimum Notice and Terms of Employment Acts, 1993 to 2005.
Section 1 of the Unfair Dismissals Act, 1977 defines the “date of dismissal” as follows.
“date of dismissal” means—
(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.
(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973 , the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 ,
Therefore the Tribunal determines that the claimant’s date of dismissal was 22nd November 2010. This means that the claimant had service of exactly one year with the respondent and accordingly the Tribunal has jurisdiction to hear his claim under the Unfair Dismissals Acts, 1977 to 2007.
Determination
It is common case that consideration by the respondent of the conduct and performance of the claimant in the course of his probationary contract resulted in the emergence of a diverging view in respect of it’s termination. In essence the question addressed was whether the claimant could provide regular and affective service. The Tribunal has therefore closely examined the entire record of the claimant in respect of the duration of his contract and finds and determines as follows.
1. Sick leave and it’s abuse is justifiably an issue deserving of a process of continual monitoring by virtue of the nature of the service that the respondent provides
2. Sick leave does and did arise in respect of the claimant as a result of the nature of the
service.
3. (a) The claimant’s sick leave record was unsatisfactory and (b) was made known to him and resulted in a significant improvement subsequently.
4. That the remaining duties of the claimant were satisfactorily discharged in the course of his probation including the addressing by him of a matter concerning his second semester.
5. That the claimant therefore heeded and responded to the warnings issued which were in respect of sick leave.
6. That no communication subsequent to these warnings was made to the claimant indicating a continuing concern in respect of sick leave prior to the issuing of a letter to him confirming a recommendation of termination of his contract.
Having carefully considered the afore-mentioned the Tribunal is satisfied that (a) the overall assessment by the respondent of the conduct and performance of the claimant in the course of his contract and which resulted in it’s termination was unfair and unreasonable and was not a proportionate response to the manner in which the claimant had discharged his contract and (b) because of the aforementioned therefore unfairly dismissed the claimant.
The Tribunal considered whether the claimant had in any way contributed to the termination of his contract and determines that he did. Firstly in respect of his record of sick leave and secondly in his failure to avail of counselling and advice services provided by the respondent. It is finally determined that the claimant also contributed to his loss in that he failed to conduct a sustained effort to mitigate his loss in seeking alternative employment.
The Tribunal determines that the claimant be re-engaged within six weeks of the date of communication of this order and awards him €5,000 in respect of compensation for loss of pay.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)