EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Lisa Matthews, UD452/2013
against the recommendation of the Rights Commissioner in the case of:
Home Fare Services
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy SC
Members: Mr. B. Kealy
Mr. C. Ryan
heard this appeal in Dublin on 23 April 2014
Representation:
_______________
Appellant(s):
Ms. Mary Duffy-King, S.I.P.T.U.
Misc Unit,
Liberty Hall,
Dublin 1
Respondent(s):
Mr Seamus White on behalf of
Mary Hanson,
Kylemore Services Group,
McKee Ave,
Dublin 11
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-125755-ud-12/JT.
The respondent employer’s position was that it eventually found itself with no option but to dismiss the appellant following her absences from a very early morning senior barperson shift at an airport which had the effect that the bar on several occasions went unopened at the material time.
It was undisputed that the appellant had suffered tragic bereavement and a not unrelated drink problem.
The appellant’s representative told the Tribunal that the appellant had lost out because colleagues had received redundancy lump sums after the appellant’s dismissal.
The Tribunal was pleased to hear that the appellant had come through post-dismissal disability and had mitigated her financial loss admirably in that she was now in new employment.
Determination:
Section 6 (4) of the Unfair Dismissals Act, 1977, states that the dismissal of an employee shall be deemed not to be an unfair dismissal if it results wholly or mainly from (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do or (b) the conduct of the employee.
The Tribunal finds that the company has shown a substantial ground justifying the dismissal.
Section 5 (b) of the Unfair Dismissals (Amendment) Act, 1993, provides that, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so, to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.
However, the company’s failure to activate the final warning in March had the effect of diluting that warning, thereby leading the appellant to believe that the final warning had been diminished in some way.
Under the Act compensation is to be “just and equitable having regard to all the circumstances”. Having regard to the fact that a substantial ground has been shown to justify the dismissal and the dismissal is deemed unfair only by virtue of the 1993 Amendment, a modest or even nominal award would be appropriate.
Allowing the appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-125755-ud-12/JT, the Tribunal awards the appellant €2,000.00 (two thousand euro) as compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)