UD1765/2011, MN1814/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:     

                                                                                                CASE NO.

                                                                                                 UD1765/2011

                                                                                                 MN1814/2011

EMPLOYEE              - claimant                                                 

against

EMPLOYER               - respondent

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:    Ms. E.  Daly B.L.

Members:     Mr. D.  Morrison

                     Ms. A.  Moore

heard this claim at Letterkenny on 30^th April 2013

                                                 and 2^nd August 2013

Representation:

Claimant(s) :         Mr. Gordon Curley, O'Gorman Cunningham & Co, Solicitors,

                  16 Upper Main Street, Letterkenny, Co Donegal

Respondent(s) :    Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot   

                             Street, Dublin 2

The claimant was employed as a cleaner working in a premises belonged to the respondent’s client in Milford, Co. Donegal.

Respondent’s Case:

The Area Supervisor gave evidence. The respondent was a cleaning company with a staff of over 3,000. There were problems with the claimant regarding time keeping and her standard of work. She was requested to attend a meeting on 21 January 2010 at 1.00 p.m.  The witness, another Operations Support Manager (MK), the claimant and one other employee attended the meeting. 

The claimant denied being late for work. She said she had a hair appointment. She was informed she should do that on her own time. The meeting was adjourned and later resumed.  CCTV footage showed the claimant leaving early on numerous occasions. She had fraudulently signed in and out. The following day MK wrote to the claimant stating another incident had come to light regarding a text message which allegedly had been received by one the respondent’s clients.  The claimant was requested to attend another meeting on Thursday the 28^th January 2010 at 10.30 a.m.  She was informed that she could bring a union representative or a work colleague with her. 

The Area Supervisor put the fact that she, the claimant, had been leaving work early and had been seen doing it.  The Area Supervisor had observed her for a week.  The claimant said she probably deserved the sack.  CCTV footage was viewed by all present.  The claimant handed over a handwritten letter of resignation.  The respondent confirmed her resignation from the premises in Milford and would be returning to her position in the County Council offices. 

Another meeting was held with the claimant and a colleague on 12 February 2010 regarding time keeping, sick leave and the on-going problem of staff leaving early. 

Another meeting was held with the claimant on 3 August 2011.  The claimant had been informed it was a disciplinary meeting concerning her leaving early, fraudulently signing the sign in/out book and accepting money for work she had not carried out.  The claimant admitted leaving work early and for accepting money for work not carried out.  She was informed it constituted gross misconduct and was informed she was dismissed but could appeal the decision within 7 days of receipt of the letter. 

On cross-examination the witness stated the claimant had not been put under pressure to resign from her position in Milford. 

The Operations Support Manager gave evidence. She received the letter of appeal from the claimant dated 12 August 2011. The appeal hearing was held in Letterkenny on 23 August 2011. The claimant accepted she had been leaving early and probably deserved the sack but felt she was unequally treated, her work had always been highly regarded, her length of service should be taken into consideration and she had no previous oral or written warnings. 

The witness reviewed the claimant’s file after the meeting and spoke to management.  The witness told the Tribunal that she did take other sanctions into consideration but the trust between the parties had broken down.  The decision to dismiss was upheld.

Claimant’s Case

The claimant gave evidence that she worked as a part-time cleaner for the respondent company for 8 years. She worked as a cleaner in a number of buildings including the office of a local authority. She was entrusted as a key holder for that building because of her long service with the respondent. She accepted that she left work early on occasions but only did so after she had completed her work. She did not believe it was an issue to leave work 10/15 minutes early as long as her work was done. Nobody had ever raised this as an issue until she was invited to attend a disciplinary meeting on 3 August 2011. She did not believe that her job was at risk when she attended that meeting. Following this meeting she was informed by way of letter dated 10 August 2011 that her employment was terminated with immediate effect.

She was given the opportunity to appeal this decision and did so by way of letter dated 12 August 2011. She outlined her grounds of appeal stating that she had received unequal treatment, she had no other oral or written warnings, her work had always been highly regarded and she had 8 years’ service working in the building concerned. She stated that her work colleague, who had also left work early was not treated in the same manner and she sought an explanation for this unequal treatment. She attended the appeal hearing on 23 August 2011 and was informed by way of letter dated 30 August 2011 that her appeal had failed.

She denied that she was ever shown CCTV footage of her leaving the building early but she did accept that she had left early on occasions over a 6 week period. She denied that she stated at her disciplinary hearing that she deserved to be sacked. She told the Tribunal that she has been unemployed since the termination of her employment with the respondent.

Determination

The Tribunal carefully considered the evidence adduced and is satisfied that the actions of the claimant did not constitute gross misconduct. Therefore the Tribunal finds that she was unfairly dismissed from her employment. However the Tribunal determines that the claimant significantly contributed to her dismissal by her actions, firstly by leaving work early without notifying a supervisor and secondly by incorrectly recording her departure hours.

Taking these facts into consideration the Tribunal awards the claimant the sum of €711.00 under the Unfair Dismissals Acts 1977 to 2007. The Tribunal also awards the claimant the sum of €474.00 this sum being the equivalent of four weeks’ pay under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)