EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Kevin Feery – claimant UD184/2013
Against
Oxigen Environmental T/A Oxigen – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr M. Carr
Ms M. Mulcahy
heard this claim at Tullamore on 27th May 2014
Representation:
_______________
Claimant(s) : Ms Elaine Hanniffy BL, instructed by:
Mr John Keogh, Tormeys Solicitors, Castle Street, Athlone, Co Westmeath
Respondent(s): Ms Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced during the course of this hearing. The respondent company dismissed the claimant for unacceptable conduct and the onus rests with the respondent to demonstrate that it acted reasonably in all the circumstances.
The claimant was an employee operating at general operative level within the respondent company and had effectively worked at the recycling site in Edenderry since 2006.
The Tribunal accepts that the claimant had a clean disciplinary record and worked hard in increasingly adverse economic conditions as evidenced by the fact that wholesale pay cuts were being implemented in the workplace in 2012.
In and around April or May 2012 it is alleged that the claimant may have strained his back while manoeuvring some white goods. The claimant’s case is to the effect that the back injury did not improve and he was attending his GP on an ongoing basis. Towards the end of June the claimant went out sick for a full week as he had taken some pain killing injections.
The Tribunal accepts that the claimant believed he would be paid for the week he was out on certified sick leave. However, the Tribunal further notes that this expectation may have been unwarranted as the respondent company gave evidence to the effect that payment during a bout of illness is entirely at the discretion of management and applied in cases of merit and/or compassion.
To some extent the claimant’s understanding is not without comprehension as the claimant had been paid for two days’ sick leave immediately after the accident which had given rise to his back complaints.
On or about the 5th of July 2012 the claimant noted that he had missed a week of pay for the week he had been obliged to take off on medical grounds.
Having taken the issue up with his line manager, the Tribunal accepts that the claimant was given the impression that the non-payment of wages was inexplicably linked with a general disbelief on the part of the respondent company that a back injury had ever occurred.
There can be no doubt that the claimant over-reacted and this manifested itself in an unfortunate phone call to the payroll manager. The tone and content of this phone call was clearly unacceptable and the payroll manager was certainly shaken by same.
That said, the claimant was advised by the said payroll manager that no accident report form had ever been prepared and/or filed and one would be needed to sanction sick pay for the time off.
As it happened, the HR manager intercepted the phone call and confirmed to the claimant that there was no evidence that there had ever been an accident and it seems he had made enquiries about this fact just prior to intercepting the call.
The Tribunal accepts that the claimant did not temper his tone when talking to the HR manager and the conversation ended abruptly when the claimant heatedly hung up the phone.
The Tribunal accepts that the claimant lost his temper and behaved in a way that was unacceptable vis-à-vis his work colleagues. On the other hand, the Tribunal must have regard to the facts from the claimant’s point of view and in particular the underlying suggestion that the claimant was lying about having had an accident in April 2012. At the time, the claimant had gone out on two days’ sick leave for which he was paid. If there was no accident report form the claimant cannot be held responsible as his line manager knew or ought to have known that the claimant had hurt himself and was out of work in consequence. Two months later the respondent no longer accepts there was an accident – primarily, it seems, based on CCTV footage of which the claimant has no knowledge and no sight.
In short, the claimant had an expectation that he would be paid for a week’s sick leave and rather than being told that this would not happen and the reasons that this decision was being made he was left to find out for himself. In addition to the fact of the loss of a much needed week’s wages the claimant was made to feel by his line manager, and the payroll manager and the HR manager that he had been found out in some sort of fabrication.
Both the operations director and the managing director on appeal made their decision to dismiss based on the claimant’s unacceptable telephonic outburst without having any regard to the claimant’s disciplinary record, financial circumstances and ignorance of the respondent’s modus operandi.
On balance, the Tribunal finds that the claimant was unfairly dismissed. In assessing the compensation that should be awarded the Tribunal must take into account the element of contribution on the claimant’s part as well as the fact that the claimant was unavailable for work by reason of disability from February 2013.
The Tribunal awards €6,500 (six thousand five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)