EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr M. Carr
Mr T. Brady
heard this claim at Dublin on 2nd December 2013
Claimant: Garrett J Fortune & Co, Solicitors, 11 Church View, Cavan
Respondent: Micheal Shanley, General Counsel, Nurendale Limited, Panda
Waste Services, Ballymount Cross, Upper Ballymount Road, Dublin 24
The determination of the Tribunal was as follows:-
Preliminary issues were raised on behalf of the respondent in respect of the Tribunal’s jurisdiction to hear the claim under the Unfair Dismissals Acts. The respondent contended that the claimant did not have requisite 52 weeks of service as per the Unfair Dismissals Act and evidence was adduced from the claimant as to his date of cessation and the date of completion of the workplace relations complaint form. On balance the Tribunal decided that he did have the requisite service.
The Tribunal heard evidence from the respondent regarding the claimant’s attendance record and sick leave record. BC provided a work planner with a list of over 40 days in one year where the claimant did not attend for work, these days were in addition to medically certified sick leave.
He also provided evidence of warnings and final written warnings to the claimant. The claimant was written to by the respondent on 7th February 2011 saying that no contact had been made since 2nd February, and requesting his return to work. They wrote again on 26th April having not heard anything since 1st April. The respondent met with the claimant on 2nd August and again on 16th September. There was no improvement in his behaviour so he was dismissed from his position. He was given the right of appeal.
The claimant gave evidence of being a general operative. He told the Tribunal that his work was outdoor and because of that he suffered from flu and his general health was also affected. He said that on days when he did not attend for work, he always telephoned or texted in advance and was 100% sure that there was no way it could have been up to 40 days in the year. He did not keep any records of the calls or texts made and did not receive written correspondence from the respondent except for one letter.
Having taken the totality of the evidence into consideration the Tribunal finds on the balance of probabilities that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal