EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD37/2014
CLAIM OF:
Norbert Besenyei
against
Rosderra Irish Meats Group Limited And Rosderra Irish Meats Group
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr J. Flavin
heard this claim at Thurles on 16th February 2015
Representation:
Claimant:
Mr. Colm Hickey, Frank Ward & Co., Solicitors,
Equity House, Upper Ormond Quay, Dublin 7
Respondent:
IBEC West, Ross House, Victoria Place, Galway
Preliminary issue:
The respondent submitted that the Tribunal had no jurisdiction to hear this claim as the claimant had not lodged his claim within 6 months of being dismissed. The claim was lodged with the Tribunal on 19th December 2013 and the respondent dismissed the claimant on 30th May 2013.
However the claimant contended that he had been dismissed without statutory minimum notice and that despite the fact that he had not lodged a claim for such notice the date of his dismissal for the purpose of the Unfair Dismissals Acts should be the date on which such notice would have expired.
Respondent’s case:
The respondent company operates a meat processing plant and the claimant was employed there as a Boner from 24th June 2005 until he was dismissed on 30th May 2013.
The witnesses for the respondent gave evidence in respect of the procedures followed in reaching the decision to dismiss the claimant. Over a period of time leading up to his dismissal the claimant had received a verbal warning followed by a written warning, a final written warning and most recently a two day suspension without pay. The claimant appealed his dismissal and was afforded an appeal hearing where upon it was decided to uphold his dismissal.
There were a number of issues considered in reaching the decision to dismiss the claimant but it was the witnesses’ contention that the main reason for his dismissal was the claimant’s persistent refusal to wear a protective glove when instructed to do so in order to comply with Health and Safety best practice as determined by the respondent.
It was the respondent’s position that the claimant was given every opportunity to improve his behaviour but failed to do so and left the respondent with no option but to dismiss him.
Claimant’s case:
It was the claimant’s position that he did not want to wear the particular glove that the respondent required him to wear as it caused him pain in his elbow. However no formal grievance was lodged with the respondent with regard to this nor was any medical evidence provided to the respondent in respect of this. The claimant also held that he did not need to wear this particular glove as he was experienced and had not used it for the last 19 years, including while he worked in Germany.
The claimant contended that the decision by the respondent to dismiss him was disproportionate and that he was therefore unfairly dismissed.
Determination:
The Respondent raised a Preliminary point as to whether the Claim was initiated in time. The Claimant’s last day at work was 30th May 2013 and his Claim was not filed until 19th December 2013.
The Tribunal gave due consideration to the issue of the Date of Dismissal in this particular instance. The Minimum Notice and Term of Employment Act gives the Claimant a prima facia entitlement to 4 weeks notice. The Tribunal was satisfied that the Date of Dismissal for purposes of jurisdiction in this Case was the date on which this Notice would have expired if given. The position is unaffected by the fact that no Minimum Notice Claim had been filed. Accordingly the Tribunal held that it had jurisdiction to hear the claim.
The principal reason for the Claimant’s dismissal was his refusal to wear the arm-length safety glove designated for use by Boners on the Respondent’s production line. Production operations of the nature conducted by the Respondent carry a high level of risk and compliance with Health & Safety Regulations is paramount. Not only must risk assessments be carried out and Health and Safety measures implemented but these must also be reviewed on an on-going basis. All Employees also have obligations for their own safety.
It is unacceptable in circumstances where a properly conducted Risk Assessment has led to the introduction of a safety measure that an employee should arbitrarily decide not to comply with the measure. The Claimant simply had no reason for so doing and, even when faced with the prospect of dismissal, refused to resile from the position adopted by him. The Respondent was left with no option but to dismiss in all of the circumstances.
No Unfair Dismissal occurred in this instance and, accordingly, the Claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)