EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE UD942/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr J. Goulding
Mr P. Trehy
heard this appeal at Dublin on 30th September 2013
Representation:
Appellant :
Respondent:
This case came before the Tribunal by way of an appeal by a former employee of the respondent against a recommendation by a Rights’ Commissioner reference r-119176-ud-12/RG
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is a company that operates a catering business. Among its clients was a large wholesale distribution firm that also owns and controls a number of retail outlets. The appellant was based at that client’s depot where she was employed as a kitchen porter. Up to early June 2010 when the respondent took over from another company in providing catering there was no night shift work. From that time up to April 2011 the appellant volunteered and worked some night shifts in rotation with her colleagues.
The appellant’s supervisor told the Tribunal that she arranged and published the work rosters on a three month basis. The rosters for September were on display on the premises from mid August 2011. The onus was on the relevant staff to note that roster as the respondent was not active in checking they were aware of it. From mid to late August the appellant was absent from work due to medical reasons and that was still the case when she appeared on the premises on 23 September enquiring about her roster as she fit to resume duties the following Monday 26 September. She was rostered to recommence duties beginning at 22.00 hours that Monday. The appellant then made it known to this witness that she was not prepared to work nights.
When the appellant appeared for work at 08.00 on Monday 26 September this supervisor reminded her that she was not rostered to work then and reminded her that she was now on nights. Again the appellant refused to commit in working the night shifts. Her services were not required that day and the appellant eventually vacated the premises. This witness had almost no knowledge of the appellant’s medical certificates except to state that she might have received them.
An area manager met the appellant and her sister around that time. He was informed by her that she would not work nights and offered no reasons for that stance. This witness felt that this issue would be best dealt with by human resources.
The human resource manager confirmed that from June 2010 onwards four staff including the appellant were rostered on a regular basis to work nights. While the appellant was aware and indeed complied with rotation the rosters for the week commencing 26 September 2011 were displayed on the client’s premises the previous Wednesday or Thursday. In the weeks preceding that date the appellant was not on those premises due to absence on health grounds. Neither this witness nor anyone from the respondent were unable to produce medical certificates relating to that absence. In addition the company struggled to give dates, backgrounds and circumstances of that absence.
This manager received an email from the appellant on 26 September 2013 in which she stated her objections to working nights. That email was sent on 23 September. The appellant cited contractual reasons for her refusal. No mention was made of health issues. In reply this witness referred the appellant to her contract of employment and asked her to speak to her supervisor and area manager. The appellant responded and on that occasion informed the human resource manager that she had previously applied for a transfer from night to day shifts due to medical conditions.
The respondent was forced to hire agency staff for the night shift as the appellant did not report for her rostered shifts all that week. The witness wrote to the appellant on 30 September that a full investigation would not be carried out into her continuing refusal to work nights. While this witness acknowledged that the appellant only became aware on 23 September of her forthcoming night shifts that fact did not form part of the investigation. The human resource manager notified the appellant that should she be found to have acted in a gross misconduct way then the sanction could be dismissal. The claimant was placed on suspension and due to her ongoing involvement with a trade union that investigation and subsequent disciplinary hearing only concluded in early November. In an email also dated 30 September the human resource manager acknowledged the appellant’s reference to her medical condition.
As part of the investigation this witness spoke to the appellant’s supervisor and area manager. She was also conscious of treating all four relevant staff fairly and took into consideration the appellant’s record of actually working nights up to April 2011. The witness told the Tribunal that had the appellant introduced her medical condition as a factor then perhaps events would have turned out differently. A disciplinary hearing chaired by the witness into the appellant’s behaviour took place on 27 October 2013. The respondent did not present notes or minutes of that meeting into evidence. Following that hearing the witness received a detailed email from the appellant clearly stating her belief she had committed no misconduct relating to night shifts.
In referring to the appellant’s correspondence and to the disciplinary hearing the human resource manager wrote to the appellant on 2 November 2011. She wrote that the appellant was in breach of her contract in refusing to work night shifts and that the respondent treated that behaviour as gross misconduct. The company decided it has no option now but to immediately dismiss the appellant. While that letter made no reference to an appeal process the witness commented that such a facility was available and open to the appellant as per the company handbook. She was represented during that disciplinary procedure by her trade union official. The respondent did not receive an appeal application from the appellant. Throughout this process the appellant did not give details of her reported medical condition. The respondent also never sought an explanation for the appellant’s references to her medical condition and did not involve the company doctor in dealing with that issue.
Appellant’s Case
When the appellant commenced employment with the previous employer in June 2008 she signed a contract of employment setting out her terms and conditions of employment. Both she and those terms were transferred over to the respondent as part of a transfer of undertaking exercise effective from 1 June 2010. Prior to that transfer the appellant’s former employer did not offer night shift work. The respondent did she along with other colleagues worked that shift from June 2010 onwards and in the case of the appellant up to April 2011.
From April 2011 onwards the appellant remained exclusively on day shifts. According to the appellant she informed her supervisor about her illness and how it would prevent her from working nights. She succumbed to her illness in the latter half of August 2011 and had to excuse herself from duties then. Medical certificates declaring her unfit for work were then and subsequently submitted to her workplace on at least a fortnightly basis. Those certificates expired on 25 September 2011. Two days earlier she visited the premises and learned she was rostered to work the following week on nights and objected to that arrangement to her supervisor.
In an email addressed to the human resource manager that day the appellant cited contractual reasons for her refusal to work that shift. She was silent on her medical condition. However she raised that condition with the area manager when they met around that time and explained it prevented her from working at nights. While absent during a five week period up to 23 September the respondent did not make any contact with her. When the appellant returned and reported for work she again raised her medical condition. The respondent did not offer her medical assistance or treatment. The respondent did not offer her an appeal against her dismissal and she did not appeal that sanction to the company.
Determination
Flaws and shortcomings in the procedures and management from both parties were a feature of this case. The respondent was remiss in allowing the investigation, disciplinary process and decision making to be conducted by one person. No notes or minutes of that investigation and disciplinary meetings were made available to the Tribunal. Likewise, the respondent had no record of medical certificates from the appellant or indeed any official explanation as how it handled that absence. The company made little or no effort to explore the appellant’s medical condition and appeared to disregard her grievances.
The appellant was also deficient in dealing with this case. There was no written record of her reported illness either through medical certificates or her request to be excluded from night shift work. She was slow and silent in highlighting her illness to the human resource manager. She made no reference to it in her initial email to that manager but did refer to her contract. Instead of refusing to work night shifts the appellant could have worked under protest pending a resolution to that issue. She did not appeal the decision to dismiss her despite having a trade union representative. The Tribunal was also unimpressed with her evidence regarding mitigation of loss.
Having considered the evidence the Tribunal upsets the recommendation of the rights commissioner as it finds that the appellant’s dismissal was unfair under the Unfair Dismissals Act, 1977 to 2007 and awards her €5000.00 in compensation. The greater onus in this case lay with the respondent to show its sanction of dismissal was fair in all the circumstances. Its treatment of the appellant as presented outweighed the appellant’s defects.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)