EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
UD1787/2012
Employee - appellant
against the recommendation of the Rights Commissioner in the case of:
Employee - appellant
and
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. L. Tobin
Mr A. Butler
heard this appeal at Dublin on 19th February 2014
Representation:
____________
Appellant(s): Ms Bernadette Thornton, SIPTU, Membership Information &,
Support Centre, Liberty Hall, Dublin 1
Respondent(s): Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing against the recommendation of the Rights Commissioner dated 8 November 2012 reference r-119613-ud-12/DI.
Respondent’s Case
The customer service manager EMcG told the Tribunal that he knew the appellant. The respondent provided a security service to its clients seven days and seven nights. Employees could be rostered at any location and flexibility was a major requirement in the security industry. The clients required employees to undertake security duty during the day and night. The appellant was not available to work on day shifts from Monday to Friday due to family commitments. There were no contracts in place that would assign employees to work solely on days and nights. The appellant was employed as a floater for some months. Floaters covered extra requirements such as sick leave and holidays. When the respondent lost a contract it met with the person on site and discussed who would be rostered to work. If an employee could not work days this would have to be discussed. Various clients had issues with the claimant.
In July 2011 four employees were employed on the AF site. He had no involvement in the selection of employees for redundancy. He could not recall if there was a floater on the AF site and he could not recall if four were employed on this site.
MC told the Tribunal that she was responsible for the control room in the respondent which was the hub of the operation. She was responsible for issuing rosters to employees. From a health and safety perspective security guards were monitored and there was an obligation on employees to check with the control room every hour. She had to ensure that adequate cover was provided for clients. The rosters were completed two weeks in advance. She knew the appellant and she heard that the appellant had problems with the rosters. She was aware that the appellant was rostered on night shift during the week and on day shift at the weekend. The respondent tried to accommodate the appellant. The appellant was assigned to work in the AF site but this site closed down. She is no longer employed with the respondent.
Appellant’s case
The appellant gave evidence in relation to loss. He commenced work with the respondent in November 2005 and he was dismissed on the 9 November 2011. After he was dismissed he tried to obtain work. He could not find work for a year after his dismissal. He returned to college in September 2012. He is attending college full time and he is not available for work. He is looking for work while going to college.
Determination
The employer failed to establish that the appellant was fairly dismissed as required under the legislation. No evidence was adduced to the Tribunal regarding the matrix used by the employer that would render the dismissal fair. In the absence of any evidence the Tribunal must find that the appellant was unfairly dismissed and in the circumstances the Tribunal awards him compensation of €29,276.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal therefore upsets the recommendation of the Rights Commissioner and the appeal succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)