EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD152/2015
APPEAL(S) OF:
Larry Hurney
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Cairborne Trading Ltd T/A Secure-All Security
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Henry
heard this appeal at Galway on 18th May 2016
Representation:
Appellant: Mr Paul Hardy, SIPTU, Liberty Hall, Dublin 1
Respondent: Mr. Ronnie Lawless, IBEC, West Regional Office, Ross House, Victoria Place, Galway
This case came before the Tribunal by way of an appeal by an employer against the recommendation of a Rights’ Commissioner References: r-144155-UD-14/EOS.
The determination of the Tribunal was as follows:-
Background:
The appellant was employed as a Security Officer with the respondent from the 10th of June 2006 to the 25th of February 2014 when it is submitted that he was dismissed for gross misconduct.
The appellant took a claim for unfair dismissal to the Rights Commissioner who found the dismissal was procedurally unfair but the appellant had “contributed substantially” to his own dismissal. The appellant was awarded the sum of €1,500.
The appellant appealed this recommendation to the Employment Appeals Tribunal that the redress awarded was inadequate.
It should be noted all correspondence between the parties and minutes of minutes were opened to the Tribunal.
Respondent’s Position:
The Operations Director (SOH) and the Financial Director (JA) gave evidence on behalf of the respondent.
The claimant was scheduled to work a night shift from 7pm to 6am on the 11th of February 2014 in the vacant hotel premises of a client of the respondent. The claimant’s Supervisor (T) had contacted the claimant, as was the norm, to ascertain if he was onsite. The claimant replied that he was. SOH, the Operations Manager, visited the hotel site at approximately 8.20pm as it was normal practice for him to visit various premises with the respondent’s staff on site. SOH found the premises in darkness and no-one present. SOH rang the claimant’s mobile phone. When asked, the claimant told SOH he was on the site. SOH told the Tribunal that he was the only person on site that night. SOH left but returned at around 9.45pm. The claimant was nowhere to be seen. SOH remained on the premises.
The following day SOH discussed the issue with JA. A decision was made to contact the claimant and invite him to a meeting to discuss his absence on the night in question. The meeting took place on the 13th of February 2014. The claimant, SOH and JA were in attendance. The claimant did not have a colleague or representative present. Both SOH and JA told the Tribunal that the claimant’s reasons for his absence on the 11th February were inconsistent. A decision was made to suspend the claimant and a further meeting would take place on the 20th of February 2014. The claimant was advised he could bring a colleague.
At the meeting of the 20th of February the claimant changed his version of events again and advised SOH and JA that he had been in extreme pain on the evening of the 11th of February. He stated that he had attended his doctor that evening and said it was too late at that stage to ring in sick to work and he was too ill to contact his Supervisor to advise him of his condition as he was in so much pain.
A third meeting was held on the 25th of February 2014 when the claimant was advised he was dismissed. SOH and JA explained to the Tribunal that the claimant was dismissed for gross misconduct. They explained that complete trust was required between the employer and employee in the security industry and the reputational damage caused by a guard on duty could not be underestimated. Both witnesses felt the decision to dismiss the claimant was reasonable in all the circumstances.
Claimant’s Case:
The claimant gave evidence. He told the Tribunal that he had loved his job and there were no previous issues between this employer and himself until the issue on the 11th of February 2014.
On the night in question he stated that he was in “severe pain from kidney stones”. He said that he attended his doctor and then drove on to work. The claimant told the Tribunal that, in hindsight, he should not have driven to work that night. On his arrival he said he tried to locate the key to enter the premises but could not find it. Because he was in so much pain he returned home. When asked why he had told his Supervisor that he was on site, he replied that at the time he was on his way but the pain increased and he was in too much pain to contact the Supervisor again to inform him.
The claimant told the Tribunal that he attended the meeting on the 13th of February with no prior knowledge of what it would entail. The claimant agreed he had not given an accurate version of events at this meeting but did at the meeting on the 20th of February. The claimant told the Tribunal that he was surprised things had “gone this far” and shocked that he had been dismissed. He thought he would get a warning.
The claimant gave evidence of his efforts to mitigate his loss of earnings since his dismissal.
In cross-examination the claimant said he could not say why his doctor had not certified him unfit for work when he visited him on the 11th of February 2014. When asked he said he had attended the hotel on the night in question. He said he had not seen SOH there and when he could not locate the key to gain entry he “returned home” as he was in so much pain.
Determination:
The Tribunal has carefully considered the sworn evidence and submissions adduced in this matter.
The Tribunal finds that procedural flaws render the dismissal unfair. However, the claimant contributed substantially to his own dismissal.
Accordingly, the Tribunal affirm the recommendation of the Rights Commissioner awarding the sum of €1,500 (one thousand five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)