EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Waldemar Baran, UD608/2013
against
Donegal Meat Processors Limited
t/a Foyle Donegal,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly BL
Members: Mr. D. Morrison
Mr M. McGarry
heard this case in Letterkenny on 11 September 2014 and 11 December 2014
Representation:
_______________
Claimant: Mr.Patsy Gallagher and Ms. Donna Ponsonby,
Gallagher & Brennan, Solicitors,
House B, Carnamuggagh Upper,
Kilmacrennan Road, Letterkenny,
Respondent: Mr Terry MacNamara, IBEC,
3rd Floor, Pier 1, Quay Street,
Donegal Town.
Background:
The claimant was a general operative with the respondent. The respondent has a strict absence policy, agreed with SIPTU. The policy says that you must, on the morning of any absence ring the respondent before 10am. The call must be from the person themselves. Medical certificates must be produced within 3 working days of absence and an employee must advise the respondent by 4pm on the day preceding your return to work.
The claimant breached the absence policy on three separate occasions within a one year period.
BK told the Tribunal that on 25th July 2011 the claimant was absent from work. His medical certificate was only received on the 5th day of his absence. He had a disciplinary hearing and was given a written warning which would remain on his file for 12months. He got a copy of the timekeeping policy again at this time. The claimant was again out sick from 3rd to 10th October 2011. His certificate was received on 10th October 2011. The claimant was called to a further disciplinary and insisted that he had sent the cert in on time. He refused to sign the warning. BK told the Tribunal that she was there on the 10th when the cert came in. It was brought in by a colleague of the claimant.
The final incident occurred on the 1st and 2nd of November 2012. On this occasion a female telephoned to say he would not be reporting for duty as he was sick. This lady was informed that the claimant must make contact himself. He did not. He also did not report when he was returning to work. He was called to a disciplinary meeting on 14th November and his employment was terminated. He was given leave to appeal the decision.
The Tribunal heard testimony from DG (a manager with the respondent) and AM (the general manager who dealt with a late appeal). DG explained that the respondent did all it could to ensure that employees were fully informed of the respondent’s strict policies and procedures. AM explained that, although a late appeal was not disregarded purely due to its lateness, there was no reason not to uphold the dismissal decision.
The claimant gave sworn testimony with the aid of a Tribunal-appointed interpreter. He revealed that he was not mitigating his loss but continued to receive sickness benefit due to a bad back. He did not radically disagree with the respondent’s view that he had breached the respondent’s admittedly strict policies. He claimed that DG had allowed that the respondent be contacted by a third party whereupon the respondent’s representative objected that this was not put to DG.
Determination:
The claimant had been in breach of the respondent’s somewhat strict policies. The Tribunal did consider that the claimant had been guilty of two more serious breaches prior to the third breach which led to his ultimate dismissal. However, he had been warned as to his conduct and the Tribunal understands that the respondent was anxious not to let absenteeism take root in its workforce. Production timelines were short and had to be so. The claimant’s trade union sought leniency for him but neither tried to re-negotiate terms already agreed nor argued that the dismissal was erroneous.
Having carefully considered the evidence adduced, the Tribunal finds that the dismissal was not unfair within the meaning of the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)