EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Martin Jennings Wholesale Limited UD463/2014
PW55/2014
against the recommendation of the Rights Commissioner in the case of:
Zulfaqar Ali
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr A. Courell B.L.
Members: Mr D. Morrison
Mr T. Gill
heard this appeal at Castlebar on 31st July 2015
Representation:
Appellant:
Mr Declan Thomas, IBEC, 3rd Floor, Pier One,
Quay Street, Donegal Town, Co Donegal
Respondent:
Mr. Gary Mulchrone, Gilvarry & Associates, Solicitors,
Unit 9, N5 Business Park, Moneen Road, Castlebar, Co Mayo
Background:
The appellant (employer) is a meat wholesaler/ processing plant and the respondent (employee) was employed there as a trimmer on the kill floor from 22nd February 2002 until his employment terminated on 25th October 2012.
It was the employer’s position that the employee had left the employment of his own volition. The employee was refused time off from 15th October to 5th November 2012. Despite having been told at a meeting and in writing on the 11th October 2012 that if he took this time off he would be terminating his own employment the employee did not turn up for work on 15th October 2012. On 25th October 2012 the employer wrote to the employee confirming that he had terminated his own employment by not attending work.
It was the employee’s position that he was unfairly dismissed from his employment without proper procedures and contrary to natural justice. The employee held that he had taken 5.5 days annual leave in February 2012 and was entitled to take a further 14.5 days before the end of the leave year (31st December 2012). He did not sign the letter of 11th October 2011 when asked to do so because he did not agree with the contents of that letter.
Earlier in the year the employee returned to his home land to get married and applied for leave from 13th February to 10th April. This leave was granted on the basis of his annual leave entitlement in accordance with The Organisation Of Working Time Act, 1997, and the rest as unpaid leave.
Early in April 2012 the employee contacted his supervisor by phone and requested a further week off as he was experiencing some personal/family difficulties in his home land. The supervisor approved a further week unpaid leave to 17th April 2012. However the employee did not return to work until 1st May 2012 and did not contact the respondent in the meantime. On his return to work the employee was issued with a verbal warning in relation to this unauthorised absence and told that if it happened again there would be serious consequences.
The supervisor also told the Tribunal that he could not allow more than 2 staff to be off at the same time in order to maintain production. The manager stated that there was an overall staff of 85-90 employees and this was made up of 2 managers, 2 supervisors, 2 administrative staff and the rest were production workers.
On 8th June 2012 the employee booked a travel package to Mekkah for a Hajj Pilgrimage from 16th October 2012. It was the employee’s evidence that he told his supervisor about this trip around the time of booking and that the supervisor told him he would have to take unpaid leave as his annual leave was used up. However the supervisor told the Tribunal that he knew nothing of this trip until early September 2012 at which time the employee sought leave to travel and was told that it was not possible to grant him leave. The supervisor told him that it was not possible to grant this leave and the employee replied that maybe he would take it anyway to which the supervisor replied “what about your job” and the employee said “maybe I get another job”. However, the employee denied having said these things. The employee’s contract of employment stipulates that 28 days notice of intention to take leave must be given by the employee.
The supervisor referred to an entry in his diary on 2nd October 2012 which stated “spoke to the employee about this leave application and told him that he could not possibly have holidays as he has not got any left and he has already taken 10 weeks in February to April”. This entry also refers to a reply from the employee as “if you do not give me permission I will go anyway, I told you this already”.
The manager of the respondent told the Tribunal that he was informed by the supervisor of the situation in early October 2012 and that he drafted a letter informing the employee that if he took unauthorised leave from 15th October 2012 the employee would be terminating his own employment. This letter was dated 11th October 2012 and prepared prior to a meeting being held on that date with the employee. This meeting was notified to the employee at the end of his shift on 11th October 2012 and was held immediately thereafter. The employee was not given an opportunity to have a representative present at this meeting as the manager deemed it not to be a disciplinary meeting. Present at the meeting was the manager, the supervisor, the employee and a colleague whom the manager had brought along to act as interpreter for the employee. The interpreter was instructed to read the pre-prepared letter to the employee and ask him if he understood it and to sign it. The employee refused to sign the letter.
The employee did not attend work on the 15th October 2012 or thereafter. On 25th October 2012 the manager wrote to the employee informing him that “as a result of your non-attendance at work since 12th October and your failure to contact your supervisor with an explanation you have terminated your employment”. The employee was not informed of whether, or not, this decision could be appealed. In any event, the employee did not contact his employer again.
In regard to loss and his efforts to mitigate such loss the employee gave evidence in respect of seeking alternative employment from the termination of his employment with this employer on 25th October 2012 until he returned to live in his home land in March 2013. The employee gave no evidence of his efforts to mitigate his loss since returning to his home land other than to say his family had land there and he was taking care of his Mother who had broken her legs.
Determination:
The employer in this case has appealed a decision of the Rights Commissioner which found that the employee had been unfairly dismissed. The Tribunal has considered all of the oral and documentary adduced during the course of the Appeal hearing. While, the Tribunal accepts that the employee felt a religious duty to attend the Hajj, he had booked this trip without consulting his employer. The Tribunal finds that the employee did not raise the issue of the trip with his employer until early September 2012. This was the first time he sought leave to travel and he was advised by employer that the requirements of the business were such that it was not possible to grant him leave. The employee was fully advised of the consequences of taking unauthorised leave. The employee did not turn up for work of the 15th October, 2012. He was issued with his P45 by way of letter dated the 25th October, 2012. Having reviewed the evidence the Tribunal concludes that the employee in this case had acted in breach of the terms and condition of his contract of employment which clearly states that the final decision in allocating annual leave rested with his employer.
The employee in this case argued that there had been a breach of natural justice and fair procedures in that the employer failed to adhere to the disciplinary procedure. The Tribunal has considered this issue carefully but finds that the employee’s actions were tantamount to gross misconduct and that he had been fully advised that if he proceeded to take the unauthorised leave he would in effect be terminating his own employment. The employee accepted under cross examination that he understood the letter which was shown to him at the meeting on the 11th October, 2012 and that he knew that he was terminating his employment by taking the leave. The procedure adopted was fair in the circumstances of this case.
The Tribunal concludes that the employee was not unfairly dismissed and that the employer acted reasonably in terminating the employee’s employment. Accordingly, the appeal is allowed and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
The employee also claimed under the Payment of Wages Act, 1991. In this regard, the Tribunal accepts the evidence of the employer that all outstanding holidays had been paid. Furthermore, the right to minimum notice has been forfeited by the employee in light of the circumstances in which his employment ended. Accordingly, the appeal is allowed and the employee’s claim under the Payment of Wages Act, 1991 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)