EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
– Employee No 1 MN90/2012
– Employee No 2 MN87/2012
– Employee No 3 MN85/2012
– Employee No 4 MN86/2012
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Wexford on 7th June 2013
and 8th October 2013
This case came before the Tribunal by way of appeals by the employees and the company against the recommendation of the Rights Commissioner reference: (r-105722-ud-11/TB, r-105726-ud-11/TB, r-105729-ud-11/TB, r-105732-ud-11/TB under the Unfair Dismissals Acts 1977 to 2007 and by way of direct claims by the employees under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
These cases were heard over a two day period. In the course of the first day of the hearing the company withdrew it appeals. The second day of the hearing was then confined to the question of redress. The employees were seeking re-instatement and gave evidence in that regard.
The Tribunal finds that the company should have been able to rely on the time management system (TMS) as a means of recording the employees working hours. The misuse of the logging of this (TMS) system by the employees contributed substantially to their dismissal. This was further added to by the admitted lies by the employees during the course of the company’s investigation. Furthermore the re-instatement of the employees would lead to the displacement of the employees currently working for the company.
Taking the above matters into consideration the Tribunal is not granting re-instatement.
Section 7 (2) of the Unfair Dismissals Act, 1977 provides that:
“without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,
The Tribunal has to have regard to the serious nature of the offence and the manner of the employees having denied the offence until presented with photographic evidence and later changing their case.
The Tribunal, in looking at the findings of the Rights Commissioner find no reason to alter his findings. The Tribunal therefore affirms the findings of the Rights Commissioner and awards compensation as follows:
Employee No 1: Compensation of €10,000.00
Employee No 2: Compensation of €10,000.00
Employee No 3: Compensation of €5,000.00
Employee No 4: Compensation of €10,000.00
Given that the dismissals are deemed unfair the Tribunal finds that the employees are entitled to notice awards under the Minimum Notice and Terms of Employment Acts 1973 to 2005 as follows:
Employee No 1:€1,271.92 this sum being the equivalent of two weeks pay.
Employee No 2: €4,559.94 this sum being the equivalent of six weeks pay.
Employee No 3: €1,271.92 this sum being the equivalent of two weeks pay.
Employee No 4: €3,815.76 this sum being the equivalent of six weeks pay.
Sealed with the Seal of the
Employment Appeals Tribunal