EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE -claimant
UD476/2012
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O'Grady
Mr J. Dorney
heard this claim at Dublin on 26th June 2013 and 29th July 2013
Representation:
Claimant:
Respondent:
Determination:
The Tribunal has carefully considered the evidence it has heard over the course of two days before it. The claimant was dismissed on 24 October 2011 having been found to have committed what his employer perceived to be a gross misconduct.
The claimant is deaf and commenced employment with the respondent company in or around November 2007 and he has worked with and alongside people who are deaf as a carer since that time.
In recognition of his good work and popularity with the respondent’s patients and clients the claimant was promoted to the position of supervisor. This position conferred responsibility on the claimant to regulate, roster and organise for the appropriate care of patients in a quasi- managerial capacity.
The employer sought to up skill the claimant commensurate with his new role and although the claimant had already been acting as supervisor for some 20 months, he was asked to attend the Marino Institute to undertake a course which would compliment the work he was now carrying out. The course in question started in October 2010 and was to be completed in April 2011.
The claimant continued with his employment with the respondent working his regular shifts each week. The claimant’s rotas were worked in and around his need to attend the Marino Institute.
The respondent indicated that many of its staff would have coveted the opportunity presented to the claimant and that it was a mark of the respect the respondent had for the claimant and indicative of the high regard they had for him.
The respondent paid for the course on the claimant’s behalf and their funds came from the Health Service Executive and the Catholic institutes.
In addition, the respondent was agreeing to remunerate the claimant for his attendance at the Marino Institute. Additionally, it was suggested that the respondent had to cover the claimant’s absence from the workplace at its own expense.
The claimant commenced his course as agreed in and around October 2010. The claimant continued working the shifts he was rostered to work with the respondent. The evidence is that the respondent assumed and had no reason not to believe that the claimant was taking the course in his stride.
However, the claimant was not finding the course easy. From early on the claimant was struggling. The claimant put great emphasis on the lack of a “work safety” and “infection control policy” in the workplace as having had a knock-on effect on his ability to turn in assignments and/or complete projects. The Tribunal does not understand this proposition and there can be no doubt that the employer was not advised that their perceived failure to have a policy was now preventing the claimant proceeding with the course.
The situation deteriorated and the claimant was failing to attend for lectures and it is generally accepted that the claimant in total missed 44% of his course. The knock-on effect of this non-attendance was an incomplete college year and by reason of incomplete course work the claimant never achieved his Fetac level 5 qualification.
Whether or not the claimant would have achieved his Fetac level 5 qualification if he had attended all his classes, the Tribunal can never know. Certainly, the claimant had not given himself every opportunity to achieve it if he was not even at the lectures and classes he was expected to attend.
It was only after the completion of the course in April 2011 that the claimant’s attendance record came to light.
In and around June 2011, LT of the respondent was advised by the relevant funding body that the attendance record was well below what could reasonably be expected.
An explanation was sought from the claimant by LT and it came to light that the claimant had become “stressed” by the requirements of the course and had become frustrated and overwhelmed by the course load.
The difficulty from the respondent’s point of view was that the staff had no inkling that the claimant was having difficulty, they had no inkling that the claimant was under severe stress for the duration of the course and more importantly the respondent’s staff did not know that the claimant did not attend the course for 14 of the 32 days (spread out over seven months) for which he was being remunerated. It is now accepted that the claimant was paid in excess of €1,800 for attending course seminars and lectures he did not attend.
From the start and to his credit, the claimant did accept that he had failed to attend for all of the hours for which he was paid. The claimant submitted to an investigation and disciplinary process and it is noted that the claimant continued working in the workplace for the duration of the disciplinary process. It is accepted by the Tribunal that allowing the claimant continue in the workplace conflicts with the respondent’s contention that there was a loss of trust in the claimant. In fact most unusually, given the events that subsequently unfolded the claimant was kept on until October 2011, until the completion of his appeal from a decision to dismiss in September 2011.
Given, therefore, that the claimant continued on in the workplace for the duration of the disciplinary process it must be accepted that they trusted his ability to carry out his very specialised job.
Ultimately, it came down to the reality that the claimant had taken remuneration for days that he was not turning in for his course and the question becomes one of proportionality. The Tribunal finds that in all the circumstances the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007, therefore fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)