EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jenny Lynott Thomas – Claimant UD1671/2012
Atlantic Homecare Limited – Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O’Grady
Mr J. Flannery
heard this claim at Dublin on 6th January and 10th July 2014
Claimant: In person
Respondent: Mr Tiernan Doherty of IBEC,
Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced. The claimant comes before the Tribunal making the case that her summary dismissal for gross misconduct was unfair in all the circumstances.
The claimant is a qualified horticulturist and had worked in the garden centre attached to the respondent retail unit for upwards of three years in a situation where the company relied heavily on her expertise and were not providing sufficient support staff to train up and assist in the area.
There seems to have been a seasonality attaching to the rostering of employees. In particular the months from March to September were considered the busy months, with the October to February months being quieter.
In the summer months, the weekends were considered extremely busy and the days Thursday through Sunday being most busy meant that all hands were expected to be on deck.
The claimant worked 4 days one week and 6 days the next. Her contractual arrangement ensured that she had one weekend in every two off.
On a date unknown, but towards the beginning of June 2011 the claimant states that she requested a Friday, the 1st of July 2011, off. The claimant wanted the day off for personal reasons and says she requested the day off knowing that she was already rostered off the weekend of the 2nd & 3rd of July, meaning she would be getting three days off.
There is disagreement over whether or not the claimant was sanctioned the day off and her line manager denies that she was ever notified that she could have the day off. The claimant believes she was allowed the day off.
Quite by chance, the claimant was then notified that she had a driving test scheduled for Thursday the 30th of June, which she was anxious to sit.
There can be no doubt that a conversation between the claimant and her manager took place on the Wednesday 29th of June at which the manager made it clear that the claimant could not have four days in a row off and that she was expected at work on the Friday the 1st of July. The claimant came back with a suggestion of working late on the Wednesday and coming in on the Sunday and whilst the manager may or may not have said that he’d come back to her on her suggestion, he never did and the claimant fully accepts that she knew that she was expected in to work on the Friday the 1st of July.
In the circumstances, the claimant took the decision to ring in sick when she wasn’t. It is clear that the line manager who took the call on the Friday did not from the start, believe or accept that she was sick and whilst he did not say anything over the phone on the Friday he notified his own line manager of his suspicions and intention to bring the matter further.
The Tribunal does not accept that the line manager did not know that the claimant was anxious to have the Friday off to be available for race marshalling in Skerries, a hobby and passion of the claimant’s. The manager was well aware that the claimant wanted to be at the event.
Whether the claimant could have been accommodated is not clear. The line manager made no effort to try and accommodate the request and to some extent therefore put it up to the claimant.
The Tribunal notes that the company does not pay for absences through sickness so there was no financial loss to the respondent. The evidence was to the effect that there is a demand for a horticulturalist on the premises but the counter argument to this proposition is of course the fact that the horticulturalist (the claimant herein) is absent every second weekend and other sales staff have to step up to the plate in her absence.
The Tribunal finds that the company were unfair insofar as there was an unreasonableness to the decision not to allow a day of leave be given on the Friday.
That said, the Tribunal cannot overlook or condone the blatant lie told to the line manager on 1st of July and compounded by repetition on the 4th of July. The claimant’s description of the telling of this lie as a misdemeanour cannot be accepted by the Tribunal and the Tribunal cannot accept the normality and/or acceptability of ringing in sick, which was suggested in evidence by the claimant as some sort of justification.
There are procedural aspects to the investigation and the disciplinary process which were not satisfactory and in particular the launch into an investigation without proper notice was most unsatisfactory and it is quite clear to the Tribunal that the claimant was not adequately advised as to what was happening and the significance of this move.
On balance the Tribunal has to find that the decision to actively tell a lie cannot be anything other than a breach of the bond of trust which must exist between the employer and the employee and in these circumstances the Tribunal must accept that the dismissal was not unfair. The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal