MND242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00027337 (CA-00034993-007)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 May 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 14 February 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Boston Scientific limited (the Appellant) against a decision of an Adjudication Officer given under the Minimum Notice and Terms of Employment Act 1973 (the Act) made by Paul Sheehan (the Complainant).

The adjudication officer decided that the complaint was well founded.

Background

The Complainant commenced employment with the Appellant on 6th July 2019.

The employment of the Complainant was terminated by way of dismissal on 9th January 2020.

Summary submission of the Appellant

The Appellant submitted that the complainant was dismissed for misconduct in that he was absent from work on 15 occasions in 17 shifts and he failed to clock out when leaving the premises on each of these occasions in breach of the gross misconduct provisions of the disciplinary procedure.

The Appellants submitted that the sole reason for the Complainant’s dismissal was his own gross misconduct and, as such, no entitlement to minimum notice arises in such an instance.

Summary submission of the Complainant

The Complainant submitted that he should not have been dismissed for gross misconduct and he should accordingly be entitled to his notice.

Relevant law

The Act at Section 4 in relevant part makes provision as follows:

Minimum period of notice.

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 8 of the Act makes provision as follows:

Right to terminate contract of employment without notice.

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by theother party.

Discussion and conclusions

Neither party chose to give testimony under oath to the Court when invited to do so by the Court.

It is not disputed that the Complainant was absent from work on repeated occasions and that he failed personally to clock out on each of these occasions. Neither is it disputed that the Appellant, following a probation review meeting, concluded that the Complainant had been guilty of gross misconduct and that the Appellant dismissed the Complainant for that reason.

It is not disputed that the Complainant did not, as he was entitled to do according to the procedures in place in the employment, appeal the decision of the Appellant to dismiss him for gross misconduct. It is not disputed that the entitlement to appeal and the means to do so were outlined to the Complainant in the letter issued to him advising him of his dismissal.

It is not for this Court in the within appeal under this Act to place itself ion the position of the decision maker in the decision to dismiss the Complainant for gross misconduct. An allegation of gross misconduct was put to the Complainant, and he was afforded the opportunity to defend himself in that matter. This is not disputed.

It is not disputed that the Complainant was dismissed for gross misconduct albeit he contends that he should not have been.

The Court concludes, by application of the law at Section 8 of the Act, that the Appellant had the right to terminate the contract of employment of the Complainant without notice because of what the Appellant concluded to be his misconduct.

Decision

The Complainant was not, by operation of the law, entitled to notice on the occasion of his dismissal.

The within appeal succeeds and the decision of the Adjudication officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
7 March 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.