UD289/2012, MN273/2012

EMPLOYMENT APPEALS TRIBUNAL

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 D. Donovan BL

Members:        Mr J. Hennessy

                        Mr O. Wills

heard these claims at Clonmel on 24 July

                                  and 3 October 2013

Representation:

Claimant:        

           Mr Conor O'Gorman on the first day, Mr Gerard Kennedy

                       on the second day, both of SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:   

                       Ms Deirdre Lyons, Butler, Cunningham & Molony Solicitors,

                        Slievenamon Road, Thurles, Co. Tipperary

The determination of the Tribunal was as follows:

The respondent, a subsidiary of a farmers’ co-operative, employed the claimant as one of eight general operative/shop assistants in its Cashel store (the store) from 2002. On Friday 29 July 2011 it was agreed with the store manager (SM) that on Tuesday 2 August 2011, the day following the preceding day’s public holiday, that the claimant could take the afternoon off in order that he could attend an appointment with his physiotherapist for treatment of a back problem. This back problem had caused him to be off work for some months earlier in the year.

The respondent’s position was that, on the evening of 2 August, SM had heard from an unnamed source that the claimant would not be in work the following day as he would be attending a meeting, in Athy, of another organisation in the agricultural sector in which he held a minor honorary position.

At around 8-30am on 3 August 2011 the claimant phoned SM to tell him that he would not be in work that day as he had been up in the night with vomiting and was too weak to come to work. The claimant’s absence from work in light of the information received the previous evening raised an issue with SM such that on two occasions he drove past the claimant’s house and on neither occasion was the claimant’s vehicle to be seen.

When the claimant returned to work on 4 August 2011 he was called to SM’s office and challenged as to whether he had been to the meeting in Athy or not. SM suspended the claimant on full pay pending further investigation into the claimant’s possible attendance at the Athy meeting. Whilst the claimant did not address the allegation his position was that SM, who had been in post since August 2009, was bullying him and picking on him in a way that a previous manager had.

Later on 4 August 2011 SM wrote to the claimant setting out the allegation against him and pointing out that under the respondent’s disciplinary procedure false reporting of illness was an example of serious misconduct.

On 5 August 2011 the human resource manager (HR) wrote to the claimant to advise that she had been requested to hold an investigation into the allegations against him. Included with this letter were the terms of reference for the investigation.

On 12 August 2011 HR wrote to the claimant to invite him to a meeting as part of the investigation on 17 August 2011. Included with this letter was a statement from SM in which he set out the allegation against the claimant. In this statement entitled “Allegation of false reporting of an illness” SM asserts that he had made enquiries and ascertained that the claimant did attend the Athy meeting.

The meeting on 17 August 2011 was attended by HR, SM, the claimant, his shop steward and a full time Union official (TU). At this meeting the claimant accepted that he had attended the Athy meeting. He asserted that he had been up most of the previous night with vomiting and diarrhoea, had self-prescribed medication and had not consulted a doctor. At around 10-00am on 3 August 2011 he began to feel better and decided to attend the Athy meeting as he had already informed SM that he was sick and would not be in work that day.

On 19 August 2011 HR wrote to the claimant enclosing a copy of the note taken on 17 August 2011 of the claimant’s response to the allegations against him. SM was given the opportunity to respond further. This further response, which was sent to the claimant on 2 September 2011, makes it clear that SM rejects the allegations that he had bullied the claimant or encouraged another member of staff to do so. It further points out that, if by 10-00am the claimant was feeling better there was nothing to stop him returning to work.

The claimant responded further on 12 September 2011 making the point that on a previous occasion a staff member who had overslept had been told to stay at home rather than to come in late.

HR wrote to the claimant on 16 September 2011 with the findings of the investigation into the allegation of serious misconduct against him. He was advised of his right to appeal the findings to the retail manager (RM). The conclusion of the investigation was that serious misconduct (false reporting of an illness) had taken place.

On 29 September 2011 the CEO of the respondent wrote to the claimant to invite him to a disciplinary meeting to be held on 6 October 2011 in relation to HR’s finding against him. At the 6 October meeting the CEO was accompanied by RM and the claimant was accompanied by TU. At this meeting TU asserted that the respondent had no proof that the claimant was not ill during the night of 2/3 August 2011. It was agreed at this meeting that this was the first time the respondent had any reason to suspect that the claimant might be infringing this area of the respondent’s procedures.

On 11 October 2011 the CEO wrote to the claimant stating that he was to be summarily dismissed for serious misconduct. He was notified of the right of appeal to the chairman of the respondent to be heard by a sub-committee of the management committee.

The claimant’s appeal was heard by the chairman and two sub-committee members on 27 October 2011. The rejection of the appeal by upholding the decision to dismiss him was notified to the claimant on 2 November 2011.

Determination:

Having considered the evidence adduced at the hearing, the Tribunal finds that the respondent could not on the evidence presented at its internal investigation conclude that the claimant had falsely reported an illness but could only conclude that false reporting of an illness was not substantiated.   The Tribunal notes that attendance at a meeting is not necessarily inconsistent with being unable to work due to an illness (see Malone v Burlington Industries (Ireland) Ltd. UD 947/82).   In the circumstances the Tribunal finds that the sanction of dismissal was not warranted and accordingly the claim under the Unfair Dismissals Acts 1977-2007succeeds.

The Tribunal determines that the appropriate remedy is compensation rather than reinstatement or re-engagement in circumstances where the Tribunal finds that the manner in which the claimant dealt with the investigation, such as refusing to answer his line manager when questioned about his absence, contributed to his dismissal.

The Tribunal awards the claimant compensation in the amount of €27,000-00.

The claimant having been dismissed without notice the Tribunal further awards €2,029-08, being 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)