EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Sebastian Jordan (appellant) UD1741/2012
Mainway North Road Limited
against the recommendation of the Rights Commissioner in the case of:
Mainway North Road Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr C. Lucey
Mr F. Keoghan
heard this appeal at Dublin on 13th February 2014 and 4th July 2014
Appellant(s) : Mr William Kelly BL
Mr Eamonn O'Hanrahan, O'Hanrahan & Company, Solicitors,
Lexington House, 71 Ballybough Road, Fairview, Dublin 3
Respondent(s) : Mr Don Garry
The determination of the Tribunal was as follows:
This case came before the Tribunal by way of an employee appeal of a recommendation of a Rights Commissioner- (ref: r117564,120359-ud-11/JT).
Summary of Respondent’s Case
The respondent company is engaged in the business of car sales. The HR advisor told the Tribunal that the appellant worked for a short time with the respondent company. The appellant was on a final written warning on 10th September, 2011 and had a history of unauthorised absences from work. The appellant was absent from work on 18th and 19th October, 2011 and failed to contact the respondent as per company procedures. On 20th October, 2011 the appellant submitted a third party sick certificate i.e. in the name of his daughter. According to the HR advisor the appellant was aware of company procedures regarding notification of absences from work. The respondent was not satisfied that there was an emergency situation at home to warrant the unauthorised absence of the appellant.
Under cross-examination, the HR advisor indicated that the appellant was dismissed as a result of unauthorised absences, coupled with a final written warning and previous history of non-attendance. The appellant failed to provide the respondent with a logical explanation of his non-attendance on 18th and 19th October, 2011. The HR advisor denied that the appellant had made contact with the respondent in relation to 18th and 19th October, 2011 as per procedures. A sick certificate in relation to the appellant’s daughter’s illness was given to the respondent subsequent to the absenteeism.
The HR Manager gave evidence and stated that she wrote to the appellant on 19th October, 2011 regarding his failure to follow the company absence notification procedures. The letter outlined to the appellant that unauthorised absences will result in disciplinary procedures up to and including dismissal. A return to work meeting was held with the appellant on 25th October, 2011. The first mention by the appellant of an emergency at home was when a solicitor’s letter was received from the appellant.
Under cross-examination, the HR Manager stated that a medical certificate was received from the appellant in or around 20th October, 2011. She stated there was no evidence to show that the appellant had tried to contact the respondent as per procedures. The respondent did not doubt the certificate but it was a third party certificate and was not a certificate covering the appellant’s absence. At the disciplinary meeting of 25th October, 2011 the appellant told the HR Manager that the reason he was absent on 18th and 19th October, 2011 was because his wife could not drop the daughter to Montessori. The HR Manager was not aware of the appellant’s wife sitting exams. A letter of dismissal was issued to the appellant on 26th October, 2011.
Summary of Appellant’s Case:
The appellant’s employment with the respondent company as a car valet commenced in February 2010. The employment was uneventful until 2nd September 2011 when he was involved in a fight with a colleague in the staff canteen. A disciplinary meeting followed and he was issued with a final written warning on 10th September 2011. He claimed that he did not understand the severity of the warning or its possible future implications.
The appellant was absent from work from 18th to 21st October 2011 to care for his 18 month old daughter who was ill. He discovered she was ill on the morning of October 18th and phoned the reception desk of the company twice that morning in an effort to contact his line manager. The receptionist informed him that his manager was in a meeting but that she would pass on a message for him to phone the appellant. The appellant produced his mobile phone records which showed two calls placed to the company at 8.33am and 8.56am on that morning. The appellant never received a call back from his manager. He had his line manager’s phone number on a card, but could not find it on this occasion.
He had a colleague bring a medical certificate, dated 18th October 2011, to his employer on 20th October 2011. The certificate stated that his daughter was ill and certified the appellant from 18th to 21st October 2011. He received a letter from the company dated 19th October 2011 informing him that he was on an unauthorised absence which could lead to his dismissal. He was invited to a disciplinary meeting on 25th October 2011. A Polish colleague came to the meeting with him to assist with interpretation. He explained when asked about his absence that he was caring for his sick daughter. He told her that he had phoned the office twice on the morning of the first absence. It had not been possible to have anyone else mind his daughter. His partner had an exam that morning. He did not receive any notes of the disciplinary meeting. He was dismissed by letter of 26th October 2011. He then consulted a solicitor who corresponded on his behalf. He did not attend an appeal meeting.
The appellant gave evidence of loss and mitigation of loss.
The appellant was cross-examined. The appellant contended that he had not received a contract of employment but he had received the staff handbook.
Having heard the evidence the Tribunal is satisfied that notification of the intended absence of the appellant was given to the employer and that taking into account the reason for the absence that this is something the employer should have considered. In all the circumstances the Tribunal finds that the employer did not act reasonably in terminating the appellant’s position, however, the Tribunal notes that the appellant did not exhaust the internal appeals process on offer. Accordingly the Tribunal upsets the decision of the Rights Commissioner and awards the appellant €25,000 (twenty-five thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal