EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Colm White UD888/2013claimant
Balfour Beatty CLG Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr B. Kealy
Mr J. Flannery
heard this claim at Dublin on 25th March 2014 and 28th July 2014.
Claimant: Ms Rachel Ryan
Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr Ger Connolly
Mason Hayes & Curran Solicitors
South Bank House, Barrow Street, Dublin 4
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
The claimant was employed by the respondent company as a gas fitter. He was dismissed for failing to work as scheduled over Christmas 2012. The respondent company is contracted by Bord Gais Eireann to provide services including emergency response call outs. Should a member of the public report a gas leak the company is to respond within 50 minutes. This is a key requirement of the contract. The claimant was part of the emergency response team. The service operates 24 hours a day 365 days per year. The company receives 13,000 reports of the smell of gas every year. In 2013 approximately 5,000 of these were out of hours.
The Contracts Manager gave evidence. Employees are designated areas so that the emergency response times can be met. The claimant covered South Dublin. The on call rota for the year is normally completed in February so the claimant had plenty of time to notify the respondent of any difficulties with the Christmas schedule. However, it was not until 17th December 2012 that the claimant raised any issue. He told his supervisor that he had a difficulty covering the 24th and 25th of December 2012. He was scheduled to cover the week beginning 21st December 2012. He spoke with the claimant on 18th December 2012 and informed him that it was very late to raise any issue and that he must fulfill his duties. The claimant said he would be out of the area and that to cover it he would have to stay in his mother in law’s house which he had a personal difficulty with. The claimant had moved to Wexford previously.
The company booked a room for the claimant in a hotel in Tallaght for the Christmas period but the claimant said he did not wish to be away from his family. The claimant suggested that a named subcontractor cover the Christmas period but this suggestion was unacceptable to the company as this person was no longer considered suitable for emergency response duties. He made it clear to the claimant that he was contracted to do the work and stressed the severe consequences if he did not fulfill his duties. The Operations Manager sent out a general text to other workers for volunteers to cover the claimant’s shift but there were no replies.
A meeting was held with the Operations Manager, the HR Manager, the claimant and his shop steward on Friday 21st December 2012. The claimant confirmed that he did not wish to carry out the on call duties over Christmas as he did not wish to be away from his family. The HR Manager advised the claimant that failure to undertake his duty constituted gross misconduct under the disciplinary procedures. The claimant was suspended with pay and advised that the ultimate sanction could include dismissal. He was requested to attend a further meeting after Christmas. The respondent had to inform the client that there was no cover for the claimant’s area over Christmas. The Operations Manager and other supervisors left their phones on to cover.
A disciplinary meeting was held on 7th January 2013. The meeting was attended by the Operations Manager, the HR Manager, the claimant and two shop stewards. The claimant did not put forward any new reason for not wishing to work over the Christmas. He was dismissed by letter of 8th January 2013.
The HR Manager gave evidence. He convened the meeting on 21st December 2012 to discover why the claimant was refusing to fulfill his duties. He did not recall the claimant suggesting that the subcontractor could cover the days. The claimant said he was not prepared to cover the two days in question as he wished to be with his family. The HR Manager pointed out the critical nature of emergency cover. He could not understand the claimant’s continued refusal. He made efforts to accommodate the claimant including offering to accommodate him and his family in a hotel for the two days. He informed the claimant that his contract required him to provide emergency cover and that a refusal could lead to disciplinary action up to and including dismissal and regretfully suspended him.
After the meeting he spoke with the claimant in the company of his shop steward. He was very concerned for the claimant and could not understand why he would put his job at risk for the sake of two days. The shop steward also tried to explain this to the claimant. He asked him if it was really worth two days to which the claimant replied ‘if I do, I do’. He seemed completely indifferent. He was informed on a number of occasions that dismissal was a possibility.
The HR Manager departed from the normal 48 hour gap before a disciplinary meeting, as set out in the disciplinary procedures, to allow the claimant to reflect over the Christmas. There was no material change in the claimant’s attitude after Christmas. He showed no contrition.
The Contracts Support Manager gave evidence. He heard the claimant’s appeal on 23rd January 2013. The claimant attended with his trade union representative and an employee shop steward. The ground for the appeal was the severity of the sanction. There was no issue with prior procedures. No new reason was put forward for why the claimant refused to work. The claimant put forward that he had suggested a subcontractor to cover his days but the Operations Manager had refused this alternative.
The claimant felt that he had been scheduled to work at Christmas more than others. The witness explored this and believed it not to have been the case. The claimant had been scheduled to be on call over Christmas 2011 but had called in sick. In 2010 he was scheduled for non-public holiday days over Christmas. The claimant confirmed that he was aware of the possible consequences prior to his suspension on 21st December 2012. After the meeting the witness met other employees who had been involved with the claimant’s meetings and the Rota Supervisor. Ultimately he upheld the decision to dismiss the claimant. The emergency response duty is small in value in terms of the contract but comes first in priority.
The Contracts Support Manager was cross-examined. He agreed that not all of the grounds for appeal were required in writing. He considered all the points raised at the meeting. He considered sanctions other than dismissal. He considered the number of times the claimant was warned of the likelihood of dismissal and his continued refusal to do the work. He could not be confident that the claimant would not do the same in the future. The claimant had refused to cover the whole week beginning 21st December 2012.
Summary of Claimant’s Case:
The claimant gave evidence. The claimant was employed as a gas fitter and commenced work in February 2005. He worked as part of the emergency response team. The on call rota is prepared in February of each year. There was an interim roster imposed on employees in July 2012 that had not been agreed. The claimant was contractually bound to work from 21st to 28th December 2012. He did not refuse to work his shift. However, he only wanted 25th December 2012 off to be with his family. MK had agreed to cover for him that day. MK had covered for him in the past. His understanding was that MK posed no risk to the company. He had never been stood down. The claimant had contacted other colleagues but no one was available to cover for him on 25th December. He could not stay at his mother-in-laws on 24th December 2012. The claimant had intended to give MK the necessary equipment to cover 25th December 2012. He made the company aware on 17th, 18th and 21st December that he would cover the Christmas period except for Christmas Day. It was at the disciplinary meeting on 21st December 2012 that the claimant was told that MK could not cover for him. He wanted to go home early on Christmas morning and return to work early on 26th December 2012. While he had not agreed the minutes of the meeting held on 21st December he however signed them at the end of the meeting. He was then suspended. MF told him that he should reconsider and if he refused he could be dismissed. He was told the company would be in touch with him in the New Year.
The claimant’s employment was terminated on 8th January 2013. The claimant appealed his dismissal and his appeal hearing was heard on 23rd January 2013. The grounds of his appeal related to the severity of his discipline imposed by the company as well as other issues. His reason for his dismissal surrounded the severity of the disciplinary sanction and other issues.
His appeal was upheld.
The claimant has not secured alternative work since the termination of his employment.
The Tribunal finds that in the particular circumstances of the dismissal it was fair. This is so because of the fact that the claimant was made aware in advance of his refusal to work his full rostered shift that such a failure could result in his dismissal. Further, this roster was set in February 2012 and it did not change in relation to the requirement for him to work the week of Christmas when there was an alteration in July. Therefore, he had very reasonable notice of the requirement to work this week.
Where the claimant was informed that the alternative cover that he had secured for the shift was not suitable, he should have fulfilled his basic contractual duty which was to work his reasonably rostered hours. There were no over-riding exceptional reasons as to why he did not do so, and in those circumstances, it was reasonable for the employer to terminate his employment.
Therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal