UD276/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                   CASE NO.

Erika Jerosenko                                                                                                          UD276/2014

against

Paul Halpin And Christine Halpin T/A Mid-West Cleaning

And

Mid West Cleaning

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms. P. Clancy

Members:       Mr. D. Hegarty

Mr. F. Dorgan

heard this claim in Limerick on 8 June 2015 and 14 September 2015

Representation:

Claimant: On 8^th June, Mr. Patrick Mulcahy solicitor for Mr. Kieran O'Donovan, On 14^th September Mr, Brian Cotter solicitor, Dorothy Tynan And Co., Solicitors, 78 O'Connell Street, Limerick

Respondent: Mr. Paul Halpin for Ms. Christina Halpin, Mid West Cleaning,

9 Dun An Oir, Shannon, Co Clare

Respondent’s case:

Giving sworn testimony, PH said that the claimant had eventually been dismissed after many absences from work. Much of this was uncertified and PH did not feel that the claimant had done enough to keep him informed as promptly as possible of when she would be out. He became concerned that the respondent could jeopardise a contract with a major client if it continued to tolerate the claimant’s absences for which she had received many warnings.

Cross-examination of PH elicited that it was not certain that the claimant had received all of the respondent’s terms, policies and procedures.

The case adjourned to hear sworn testimony from the claimant on 14 September 2015.

Evidence on 14^th September 2015:

Claimant’s case:

The Tribunal heard evidence from the Claimant. She commenced working in the Respondent company in May 2011. She was dismissed on 04^th September 2013. She was employed as a cleaner. The Claimant contends that she was dismissed because of illness related absence. She told the Tribunal that she produced medical certificates to her employer, specifically to her supervisor.

She was on holidays from 10^th to 25^th January 2013. She flew home to Latvia on 11^th January 2013. She was due to return to Ireland work on 25^th January but she did not. She had flown to Latvia to update her passport as it was due to expire. She had not booked flights home as she had initially only enough money for a ticket to Latvia. She did not get her new passport until 23 January 2013 and was due to return on 25^th January but she could not return as there were no flights.   She contacted her supervisor who told her to contact PH. She spoke to PH on 20^th January. PH told her that it was not his concern and she told him that she could not return as she had not received her passport. PH cut off her call. She returned to work on 7^th February. She received a warning.

On March 26^th she was involved in a traffic accident. A motorist hit her as she was cycling. She was unconscious for a time. The motorist brought her to hospital.   She subsequently had problems with dizziness/ head pain. She was out for three weeks on medically certified leave.   Her absences became more frequent from work. Management did not ask about her health or her recovery. She was told not to lift heavy objects according to her doctor however she still lifted heavy objects in work and no one in work listened to her.

On 11^th June 2013 she fainted in work.   Her supervisor brought her home. Two days later she received a letter of final warning. She felt that management had not been fully informed of the situation. She felt that her supervisor was not passing her papers/ details/certs to management.   She never received a contract of employment. She did not feel that her case was investigated. She was not given an opportunity to state her case; she was not given a disciplinary hearing, nor a right to be represented or an appeal.

Three days before her dismissal on or about 01^st September 2013, she was due to be in work at 8.00 am. However she became unconscious and her fiancée had to bring her to hospital. Her fiancée contacted PH to inform him however PH told her fiancée that he was to be told before her shift had commenced and not some hours after her shift had begun. The Claimant told the Tribunal that this was the only time that she had failed to notify management.

On or about 6^th September 2013 she met with PH and received her letter of dismissal.

Letter of dismissal dated 04^th September 2013:

“With reference to your recent verbal warning, written warnings and failure to report to work on Sunday 1^st September, 2013 with regard to your continued absenteeism from work and not following the proper procedures to an acceptable standard on the following dates:

30^th January 2013 – Verbal

31^st January 2013 – First written warning

21^st February 2013 – Final written warning

13^th June 2013 - Final (2^nd) written warning

01^st September 2013 – Failure to turn up for work

(The Respondent) now finds it necessary to terminate your employment as a result of an investigation as and from Wednesday, 4th September, 2013. All outstanding hours of work, holiday pay and week in hand will be paid and issued with your P45.

(The Respondent) has given you every opportunity to correct your unsatisfactory behaviour, unfortunately you have continued to re-offend. Your constant absenteeism has caused major disruption to our schedule of work and this has now been brought to our attention by XXXXX Store Manager who has indicated that this is unacceptable to XXXXX Management and has detracted from (The Respondent) good name and reputation.”

Determination:

The Claimant was employed by the respondent company as a cleaner. The Respondent had a contract to supply contract cleaning staff to a food store. The Claimant was placed in the store by the Respondent. However because of her illness or for whatever reason/s the Claimant’s attendance was poor. The store was unhappy with the situation that the work was not been carried out and notified the Respondent of their dissatisfaction and the contract could have been lost.

The Tribunal determines that the Respondent fairly and reasonably issued the Claimant with various warnings in compliance with Statutory obligations.   The Claimant frustrated her own contract of employment. Her own evidence was that she could not continue in alternative mitigating employment because of her ill health.   The Claimant was fairly dismissed and her claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)