EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD428/2013
MN237/2013
WT64/2013
CLAIM OF:
Mark Galbraith
against
Donegal Meat Processors Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 26 June 2014, 21 October 2014, 27 May 2015 and on 9th July 2015.
Representation:
_______________
Claimant: Mr. Kieran O'Gorman, Kieran R O'Gorman Solicitors, 62 Upper Main Street, Letterkenny, Co. Donegal
Respondent: Mr. Declan Thomas for Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street, Donegal Town, Co Donegal
The determination of the Tribunal was as follows:-
Dismissal is not in dispute in this case. The respondent told the Tribunal at the outset that Minimum Notice and Organisation of Working Time entitlements were paid to claimant.
Respondents Case:
BK HR manager gave evidence of policy and procedures within the respondent company. These include telephoning on the morning of any absence before 10am, medical certificates are required for any sick absences and if on sick leave you must make contact before 4pm on the day preceding your return to work. A return to work questionnaire must also be done with your manager on your return because as a food processing plant it is necessary to be aware of the nature of the illness.
BK outlined a number of instances beginning 19th September 2011 and on 5th December 2011 the claimant received a Final Written Warning at a disciplinary meeting of the same date. This was not appealed. The next instance was 6th 7th and 8th February 2012. The claimant had 3 absences in a six month period and was reminded of same. This resulted in a verbal warning even though he was in compliance with procedures.
The next incident was 22nd and 23rd May where the claimant was not in breach of procedures but in breach of policy. The claimant was absent again on 24th and 25th September but not in breach of policy or procedure.
The claimant was absent again on 8th October (he said he thought it was a Sunday). BK noted that most of the claimant’s absenteeism was on Mondays.
On 15th October the claimant was advised of his suspension pending an enquiry. Two meetings were held on that day, one giving him a final written warning and one suspending him pending an enquiry.
Details of the disciplinary hearing were read to the Tribunal.
Giving sworn testimony at the Tribunal hearing on 27 May 2015, LM said that he still worked for the respondent and was based in England but had been the claimant’s product manager in Donegal when correspondence took place and a meeting was held at which BK took notes. The claimant did not avail of representation.
The claimant’s representative said that the respondent’s older procedural policy had not been produced. The respondent replied that in December 2011 the claimant had said that he was aware of the policy but that the respondent did not have it at the May 2015 hearing.
LM said that the claimant lived only five or ten minutes from the respondent’s factory. Asked if the claimant had given any mitigating factor, LM replied that the claimant mentioned that the conduct in question had not been stated on his final written warning. LM confirmed that he had taken the claimant’s previous absences into account.
Worker absence had a serious effect on production in that it was very hard to run the operation successfully if someone kept letting the respondent down. LM said that for a worker to say he had thought a Monday had been a Sunday was indicative of someone who did not care about his position.
Asked if dismissal had been appropriate, LM said that the respondent had wanted to give the claimant a chance to improve but he had not changed LM’s mind in that he gave no mitigating evidence. LM had known that the claimant had been on a final written warning which had been valid for twelve months and had been still valid. The claimant had had chances to improve. The respondent did not want to dismiss people and while the claimant had been there some thirteen or fourteen years there had been a lack of respect for the respondent. The claimant had received the respondent’s policies on numerous occasions. LM had had access to the claimant’s previous warnings and his signature to the new policy. The claimant was on a Final Writing Warning, again breached policy and was therefore dismissed, he was given the right to appeal.
Asked if he had considered a lesser sanction than dismissal, LM replied that he had of course but that the claimant had not taken the respondent procedures on board. The claimant had known the procedure and had signed up. Warnings had not been appealed. He could have contacted the respondent at any time to seek clarification. LM felt that the claimant had not cared enough to come to the factory and save his job.
Under cross-examination, LM said that he had worked with the claimant for just a year. He would see the claimant on about four out of every five days. Absences had led to the claimant being disciplined. LM knew that the claimant had been suspended. He assumed that the claimant had got all the respondent’s policies. He did not go into all of that with the claimant but did go through a list of the claimant’s absences.
It was put to LM that the claimant’s saying that he thought a Monday had been a Sunday had been “a throwaway comment” for which he had apologised. LM replied that he did not accept the claimant’s explanation.
The claimant’s absenteeism rate percentage was looked at. LM said that he did not have the calculations with him and that he had not had the claimant’s file in front of him but that he had wanted to hear the claimant’s story. It was put to LM that he had decided to dismiss the claimant without all the facts and that the process should have been conducted more thoroughly. LM accepted that the claimant had been with the respondent some fourteen years and said that he had wanted to be fair. The respondent would record how long someone was off. There had been other dismissals when employees went outside the respondent’s agreed policies. The claimant had been in breach by not phoning the respondent.
Asked how the claimant had shown a lack of respect, LM replied that the claimant’s record had spoken for itself. (The respondent’s representative objected that this had been “flogged to death” at the previous day of hearing.) LM professed familiarity with the respondent’s policy and added that he himself was subject to it. He admitted that he had not gone through it in detail. The policy applied whether an employee’s service was long or short. Length of service was not a major consideration. LM had no issue with the claimant’s work when he was there. The claimant had accepted warnings. LM did not look at other aspects but felt that he had to be consistent in his application of the respondent policy.
LM had twenty-four years of service and said that he would have come to the same decision again. He had experience of disciplinary hearings. He himself had worked as a boning hall manager. All terms and conditions had trade union agreement. Agreement with unions was not an overriding factor. LM had taken the decision to dismiss the claimant.
Giving sworn testimony, LO (Group HR manager with the respondent) heard the claimants appeal. He said that he had gone through points made by the claimant. LO thought that the disciplinary hearing had been conducted in a fair manner.
LO was aware of the claimant’s absences and noticed their pattern of falling on a Monday. LO did not contradict LM’s point about respect and the claimant’s failure to contact the respondent to inform it that he would have an absence in November 2011. LO felt that the claimant’s previous incidents had no bearing on his ultimate dismissal. The claimant’s general performance and conduct when present at work had not been in question. The process had not been looking at the claimant’s performance when he attended work. Issue was taken with the claimant’s taking a Monday for a Sunday. The claimant was thoroughly taken through the respondent’s policy. It had been done with SX (a major trade union). The claimant had twice signed for the policy.
The Tribunal considered the claimant’s written warning and final written warning history. The point was made that inconsistent application of policy could be a double-edged sword for an employer. A pattern of absenteeism was being used to dismiss the claimant. The claimant was not dismissed for missing Mondays but for unauthorised absences.
The point was raised that the claimant had been on a final written warning for unauthorised absence and a written warning for something else. It was unauthorised absence for which the claimant was dismissed. Confusion about the pattern and four-out-of-five were not part of the dismissal. LO told the Tribunal that the claimant might have confused issues. It was said that benefit could be taken from confusion but that the claimant had held a key job. His disciplinary record had been looked at. His attendance had been good in previous years. However, after the final arbitration the claimant was dismissed. No effort had been made to contact the respondent. The respondent thought it had acted fairly. The claimant had signed to say that he had understood the respondent policy. Unauthorised absence was its clearest part. LO had not spoken to the claimant.
Claimant’s case:
The claimant gave evidence of his 14 years of service for the respondent. He told the Tribunal that he initially worked under an old agreement and had no issue with it. When the new agreement was given to him he was told to just sign for it. His understanding was that you were not absent if you were on a sick certificate. He was not aware of having to telephone before 4pm on the day before your return to work and also suggested that when doing your back to work cert, you were asked did you ring in. He had been told by some of his supervisors “I’ll say you did”. Sometimes if you missed a day and weren’t getting paid for it a supervisor would say “I’ll put you down for a day’s holidays so”. The claimant stated that he was aware of the policy but that didn’t mean he understood it.
The claimant told the Tribunal that he had Final Written Warnings before that never amounted to anything and assumed that this time would be the same. He had no idea what the date of his Final Written Warning was and the respondent did not remind him of same. The claimant said that he did not appeal any of his previous warnings as it would be a waste of time and felt that his manger was “out to get him”. He gave evidence of loss which was agreed at 27k and his efforts to mitigate same.
Determination:
Dissenting opinion of Mr Morrison:
It was sufficiently clear to the claimant that he was on a Final Written Warning for unauthorized absences. He had a further breach of this policy on 8th October 2012 and this breach was a dismissible offence as per the company/ trade union agreement of 2008. The claimant was fully aware that this agreement was in place and he signed for it on numerous occasions, he was a trade union member up to 2011. The policy and procedure is clear on unauthorised absences and there could be no confusion on behalf of the claimant.
A recognised, negotiated agreement between a company and a trade union cannot be frustrated in any circumstances, regardless of length of service or any previous practices. From the agreed annual loss of €27k it is reasonable to assume that any employee contributing over 75% to their dismissal is fairly dismissed. It is also unjust in my opinion to penalise any employer for carrying out agreed and negotiated procedures.
Majority Decision:
It is clear that the claimant had been in breach of the respondent’s somewhat strict and complicated disciplinary procedures for absenteeism. While the procedures themselves, having been agreed between the company management and the unions, are not flawed, the inconsistent manner that they were applied, in this particular case, was.
It is accepted by the company that the Claimant’s unauthorised absence on 8th October 2012, was the tipping point for the respondent to dismiss the claimant, however the Tribunal considers that prior to this date, it was not sufficiently clear to the claimant that he was facing dismissal if he had one more unauthorized absence. The strictness of the policy was not consistently applied to the Claimant prior to the 8 October and as a result, it was not unreasonable for him to think that the breach on the 8 October would not result in dismissal.
However it is clear that the claimant, by his actions, and his attitude that the claimant made no effort to find out the possible consequences of his actions. He admitted that he believed his position to be secure regardless of his behaviour. In this way, he contributed significantly to his own dismissal. The Tribunal therefore award the claimant €6000.00 under the Unfair Dismissals Act 1977 to 2007.
No evidence was adduced to contradict the company’s contention that Minimum Notice and entitlements under the Organisation of Working Time Acts were paid in full. These claims are therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)