EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Samuel Abayomi UD228/2015
against
Portlaoise Leisure Centre Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Goulding
Mr F. Barry
heard this claim at Portlaoise on 29th March 2016
Representation:
Claimant: Mr Seamus Maher, Elaine Dunne, solicitors, 27 Jessor Street, Portlaoise, Co Laois
Respondent : John Barry, management Support Services, The Court yard, Hill Street, Dublin 1
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is a private enterprise providing sports and leisure activities and facilitates to the general public. The claimant was initially engaged on community employment with the company and this was followed by employing him on a part time basis mainly as an outdoor maintenance person. In June 2014 the claimant acknowledged the receipt of the company’s handbook. Among the contents in that document was a section on telephones which read in part: Mobile Phones must not be used during your hours of work unless authorized by a manager.
While praising the claimant as a very good worker, the general manager commented that the claimant needed lots of direction and added that his use of a mobile phone was a big issue. This witness who participated in an annual staff appraisal of the claimant in August 2014 described his sixty-six percent score as poor and instructed him to cease using his mobile.
The next month this manager handed the claimant a written warning on this issue. A second such warning issued in early October 2014. A further two separate warnings followed on the same day in December including a final written one on the ongoing use of his phone.
It was the witness’s case that having been observed using his mobile on 15 January 2015 that the claimant effectively abandoned and resigned his employment that day. The claimant presented himself on the premises the following day and returned his uniform. Efforts made to communicate with him before and subsequent to that return proved fruitless. This witness then wrote to the claimant on 20 January 2015 stating: You leave me with no alternative but to terminate your contract of employment with immediate effect.
An assistant told the Tribunal that there was some flexibility in the use of mobiles in the workplace as other staff used theirs at times. However, the claimant was constantly on his and had received warnings about this. This witness said that the claimant stormed out of a meeting with the managing director on 15 January 2015 and vacated the workplace.
Claimant’s Case
The claimant told the Tribunal that he knew not to use a mobile phone while at work. He nevertheless persisted in doing so as he listened to music and took calls on that device on a regular basis. He did not think it was a problem using his phone at work. Up to September 2014 he had never been sanctioned for that behaviour.
The claimant was initially untruthful to the general manager regarding the use of his phone on 15 January 2015 as he feared a serious reprimand. He was immediately called into a meeting without a representative or witness and left that meeting believing he had been dismissed. He then called the next day and returned his uniform. Some days later the claimant received a dismissal letter from the respondent.
Determination
Having considered the totality of the evidence and documentation submitted, the Tribunal has concluded that the claimant’s employment was terminated without a meaningful procedure around the termination itself.
The Tribunal has concluded that there was some flexibility around the application of the company’s mobile phone policy but that this was abused by the claimant who failed to comply with his employer’s directions on a number of occasions. In so doing, the claimant seriously contributed to his ultimate dismissal.
The disciplinary process was poorly implemented and no appeal of the decision to terminate was afforded to the claimant.
The Tribunal is satisfied that the procedural shortcomings amounted to unfair procedure and, consequently, to the claimant being unfairly dismissed the claim under the Unfair Dismissals Acts, 1997 to 2007 succeeds and the claimant is awarded the sum of €2,000.00 by way of compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This _______________________
(Sgd.) ________________________
(CHAIRMAN)