EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD857/2012, MN613/2012
against
EMPLOYER
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Ms H. Kelleher
heard this claim at Cork on 11th November 2013
Representation:
Claimant : Ms Claire Collins B L instructed by
Martin A Harvey & Co, Solicitors, Parliament House, 9/10 Georges Quay, Cork
Respondent : Mr. Tim O'Connell, IBEC, 84/86 Lower Baggot Street, Dublin 2
The Tribunal is satisfied that the respondent was properly notified of this hearing.
Neither the respondent nor a representative on its behalf appeared for this hearing.
The determination of the Tribunal was as follows:
Claimant’s Case
The respondent operated a security company. The claimant commenced employment with the respondent as a static guard in 1986. By the end of that decade the claimant had moved to mobile duties which included delivering cash to automatic teller machines. While performing his duty in that role in a town close to Cork city on 11 January 2011 the claimant along with a colleague was violently confronted by armed raiders. During that incident a firearm was pointed at the claimant.
Following a session with a counsellor and the regional manger the claimant returned to work a week after that incident. The company had started an investigation into that incident which concluded that the claimant breached a number of procedures. The claimant attended a disciplinary hearing on 14 February and a week later received a letter from the respondent’s human resource manager informing him that he was dismissed with immediate effect as he had breached procedures during the incident on 11 January and that the breach amounted to gross misconduct. The claimant told the Tribunal that he had been dismissed for not following a procedure in which he had never received training. They had been following their usual procedure on the day of the incident and the respondent had never raised any issue regarding that procedure. The claimant had 22 years service.
Determination
The Tribunal is satisfied that the claimant was dismissed. The Tribunal is further satisfied that the respondent was properly notified of the hearing. As the respondent did not attend the hearing to offer any evidence to discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts, the Tribunal, applying s.6 (1) of the Acts, deems the dismissal to be unfair. Accordingly, the claim under the under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Having heard evidence of loss the Tribunal awards the claimant the sum €61, 432.00 as compensation under those Acts.
The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also succeeds and the Tribunal awards the claimant compensation in the sum of €8,568.00, being the equivalent of eight weeks’ pay in lieu of notice, under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)