UD1368/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Employee                                                                                                        UD1368/2012

                        -          claimant

against

Employer

                        -          respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. C. Corcoran BL

Members:     Mr. R. Murphy

                    Mr. C. Ryan

heard this claim at Dublin on 28^th November 2013

Representation:

Claimant(s) :    Mr. James M. Sweeney, Solicitor, 14, New Cabra Road, Dublin 7

Respondent(s) : Mr. Tim O’Connell, IBEC, Confederation House,

             84/86, Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

Background:

The claimant was employed as a Security Guard on a 24-7 site for a client of the respondent company.

Respondent’s Case:

A Branch Manager (DL) gave evidence. It came to his attention that the claimant was trying to change his rostered working hours with a number of his colleagues. The dates in question were Friday the 18^th May, Friday the 25^th May and Friday the 1^st June 2012. The witness spoke to a number of the claimant’s colleagues regarding the matter and they gave written statements. (These staff members were not present to give sworn evidence on the day of the hearing and therefore the statements were disallowed)

The claimant was absent on certified sick leave from the 23^rd May to the 3^rd June 2012 and submitted two medical certificates stating he was suffering from a chest infection.

The witness told the Tribunal that he was aware the claimant was involved in a paintball business which, on compiling research, was involved in a paintball competition in Germany. The claimant was named on this website as a player in the competition which was to take place from the 23^rd May to the 25^th May 2012. The witness rang the claimant’s mobile telephone and heard a foreign tone. The claimant answered and when questioned said he, the claimant, was at home on sick leave. The witness contacted the Human Resources (HR) Manager regarding the matter.

On cross-examination the witness said the reason he contacted the claimant while he was absent on certified sick leave was because he was concerned the claimant was trying to change the rosters. He refuted there was any allegation that the claimant was double jobbing.

The Human Resource (HR) Manager gave evidence. DL contacted her and voiced his concerns about the claimant and the possibility that he may be out of the country at a competition while absent from work on paid certified sick leave.

On the 12^th June 2012 she wrote to the claimant inviting him to a meeting on the 15^th June 2012 regarding his absences. Copies of the reports supplied by a number of his colleagues were enclosed with the letter and he was informed that he could have a union representative present.

The meeting took place on the 19^th June 2012, the witness, another Branch Manager (TL), the claimant and his union representative attended. All the reports were read out. The claimant said that he had been at home on sick leave when asked where he was when DL contacted him. The claimant’s union representative requested a break for a few minutes. On their return the claimant apologised for what he had said regarding being at home and stated he had been in Germany assisting his colleagues with the competition but said that he had not taken part. The meeting ended and the witness considered all the facts of the matter.

On the 22^nd June 2012 she wrote to the claimant explaining what had occurred at the meeting. She informed him that his employment would be terminated and stated three factors:

1. You were in breach of the company’s policies / procedures.
2. Committed an act of Gross Misconduct – please see page 44 of your Office handbook whereby it states, “guilty of any serious misconduct, or commit any serious or persistent breach of any obligation to (the respondent), or refuse or neglect to comply with any lawful orders or directions given to you by (the respondent), or are guilty of any conduct which brings or might bring (the respondent) into disrepute.
3. You deliberately broke the bond of trust between the employer and the employee.

He was given the right to appeal the decision to dismiss which he availed of.

When questioned she said she could not recall if the claimant’s medical certificates were produced at the meeting.

A Branch Manager (BD) who carried out the appeal hearing gave evidence. The hearing took place on the 20^th July 2012. The claimant did not have a union representative present and signed a disclaimer form to continue the meeting without one present. The claimant presented a letter at the meeting and said that he had been advised by his union representative not to answer any questions. The decision to dismiss the claimant was upheld.

Claimant’s Case:

The claimant gave evidence. He agreed that he had been absent on certified sick leave on the dates in question and had attended a paintball competition in Germany but had not taken an active part in it. He did not think this conflicted with him being absent on paid sick leave. He told the Tribunal that he had been surprised to receive a call from DL on his mobile phone while he had been on sick leave. He had told DL that he was at home but was in Germany at the time.

He agreed that he had changed his statement to HR at the disciplinary meeting regarding his location at the time in question. He had apologised on that occasion. He also agreed that he had not answered any questions at the appeal hearing.

He gave evidence of loss.

On cross-examination he had spoken to his doctor about his medical condition before embarking on his trip to Germany.

Determination:

The decision of the Tribunal based on the evidence adduced by both parties in this matter is that the respondent has established the burden of proof and deems the claimant’s dismissal was fair.

The claimant admitted to lying in respect of is location while on paid sick leave from his employment. As a result of this there was an irrevocable breach in trust between the claimant and the respondent.

Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)