UD458/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Alan Wall                                           -claimant

                                                                                                                        UD458/2014

against

Paul Doyle Hire Services Limited     -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                   Mr F. Dorgan

heard this claim at Waterford on 1st September 2015

Representation:

Claimant:        In person

Respondent:    Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor,

Block S, East Point Business Park, Dublin 3

Background:

The claimant was employed by the respondent company as a general operative from January 2012 until his dismissal in December 2013. Evidence was adduced by a director of the company and the claimant.

The director outlined in evidence the claimant’s employment history which saw him receive a written warning by letter dated 1^st October 2013. The warning was issued for absenteeism and failure to follow the company’s reporting procedure and was to remain on the claimant’s file for twelve months. The claimant’s contract of employment stated that absences due to sickness or injury must be advised to the director no later than 8am on the first day of the absence.

Subsequently, the claimant received a final written warning on 29 October 2013 for a further unauthorised absenteeism and failure to follow the company’s absence reporting procedure. The final written warning was in place for twelve months on his file.

The claimant gave evidence to the Tribunal of the circumstances surrounding his non-attendance at work on those occasions.

The company wrote a letter dated 2^nd December 2013 inviting the claimant to attend a disciplinary meeting in relation to an alleged unauthorised absence from work on 2 December 2013 and alleged failure to follow the relevant reporting procedure for absences. The claimant had not reported his absence until 10.30am. The letter asked the claimant to attend at 2pm on that date which was an error; the meeting was in fact scheduled for the 4^th December 2013. The claimant failed to appear for the meeting and it was rescheduled to the 6^th December 2013. At the disciplinary meeting the claimant outlined he was absent on 2^nd December as he had suffered chest pains throughout the night before falling asleep 1.5 hours prior to starting work. As a result he did not report his absence from work until 10.30am. He also attended the accident and emergency department of a hospital for 9 hours on 2^nd December 2013 due to the chest pains.

The director made the decision that dismissal was the appropriate sanction and he outlined this decision in letter dated 8^th December 2013, which he handed to the claimant on Monday, 9^th December 2013.

Determination:

The letter of dismissal of the 8^th December 2013 indicates that the claimant was dismissed for an unauthorised absence on the 2^nd December against alleged background of absenteeism.

There were certainly some issues around attendance; however, the claimant had faced some significant challenges which, while he may have handled these poorly, entitled him to reasonable consideration from the respondent.

In the Tribunal’s opinion the unauthorised attendance on the 2^nd December, given the background to that non-attendance would not, of itself, have warranted dismissal.

The Tribunal, however, has considered whether there was a history of absenteeism such as would have entitled the respondent to treat the non-attendance on the 2^nd December as the “final straw”.

On balance, the Tribunal has concluded in running its business that there had been absences that presented challenges to the respondent and that, while the claimant had encountered some challenges that led to his non-attendances he might have done more to address the issue. The claimant did not seem to appreciate the need for clear communication with his employer when he could not attend.

The Tribunal is of the view, however, that the respondent might have been a little more considerate in its dealings with the claimant and specifically around the challenging circumstances that contributed to his non-attendance on the 2^nd December. The Tribunal is further of the opinion that while an employer might have considered that some sanction was necessary, a reasonable employer would not have applied a sanction of outright dismissal on this occasion.

The Tribunal finds that the claimant was unfairly dismissed, however, in awarding compensation, the Tribunal has had due regard to the claimant’s own contribution to his ultimate dismissal.

The Tribunal awards the Claimant €6,000 compensation in respect of his unfair dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)