UD1416/2013

EMPLOYMENT APPEALS TRIBUNAL

 CASE NO.

UD1416/2013

CLAIM(S) OF:                                                                                                      

Augustin Palakunnel                     (claimant)                                      

Against

St Michaels House       (respondent)

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms N.  O'Carroll-Kelly BL

Members:     Mr J.  Goulding

                     Mr C.  Ryan

heard this claim at Dublin on 10th December 2014 and 5th March 2015

Representation:

_______________

Claimant(s) :                Mr. Simon Brady B.L. instructed by  Ruane O'Connor, Solicitors,

                                    DMG Business Centre, 9-13 Blackhall Place, Dublin 7

Respondent(s) :           Ms. Anne Byrne (1^st day), Ms. Claire Hellen (2^nd day), IBEC,                                              

                                    House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

The Tribunal have carefully considered all of the evidence together with the documentation submitted.

It is clear from the evidence adduced that there were some procedural flaws in the investigation and disciplinary process. It is well established in common law that the process of executing procedures in relation to an investigation or a disciplinary matter does not have to be perfect. As was stated in Elstone V Coras Iompair Eireann  “ The mere fact of some failing in due or agreed procedures is not a final and decisive matter for the Court on an appeal is clear from the provisions of Section 6(1) which states that regard must be had to all of the circumstances.

The tribunal is tasked with assessing all of the circumstances and in doing so must satisfy itself that the flaws did not lead to the claimant being prejudiced.

The tribunal are satisfied that whilst Ms. M should not have been involved in the investigation process and the disciplinary hearing the claimant did not establish that he was prejudiced by her involvement. The mere fact that she was involved is not sufficient.  Having reviewed the evidence the tribunal conclude that no prejudice existed.

In relation to the similar occurrence in 2012, the claimant should have been put on notice of the severity of the matter and told that a reoccurrence would not be tolerated. However, that matter does not form part of the complaint before the tribunal.

It is clear from the evidence that the claimant knew he was in dereliction of his duties. He knew that he was leaving, at least one or not two, vulnerable individuals, whom were in his care, exposed to a possible stressful situation.  He most definitely failed L by not being there for him, by intentionally going to bed to sleep. That was a breach of his contractual duty to the respondent. That is gross misconduct. 

The tribunal find that the claimant contributed 100% to his own demise and accordingly dismiss the claim under the Unfair Dismissal Acts.          

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)