EMPLOYMENT APPEALS TRIBUNAL
Suir Pharma Ireland Limited (In Liquidation)
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Ms S. Kelly
heard this claim at Thurles on 8th September 2016, 10th November 2016 and 11th November 2016
Ms Cliona Cleary BL instructed by Ms Deirdre Blackhall solicitor, Emma Timoney, Solicitors, The Borstal Gate, Emmet Street, Clonmel, Co Tipperary
Mr. Damian Cahill IBEC, Knockrea house, Douglas Road, Cork.
Mr. Michael Mc Ateer, Grant Thornton, Chartered Accountants, 24/26 City Quay, Dublin 2
On the second/third days of hearing there was no attendance by the respondent/liquidator or their representative who had come off record.
The claimant was dismissed as a result of what could most fairly be characterised as a horseplay incident where the claimant had a reflex action to being struck with a towel in the groin area. The Tribunal is satisfied that a level of horseplay was tolerated in the workplace and, had, on at least one occasion, been characterised as “high spirits” by the respondent.
The Tribunal is satisfied that a reasonable employer is unlikely to have escalated to a full disciplinary hearing the incident that ultimately led to Mr. Last’s dismissal or, had it done so, would have applied a sanction that was considerably lower than one of dismissal.
The Tribunal heard evidence from the respondent’s external HR Specialist, who conducted the disciplinary process in tandem with another individual who was not present at the Tribunal, that a decision to summarily dismiss the claimant was made. The Tribunal considers that this decision was not justified by the facts of what occurred. Indeed, it was clear to the Tribunal that the initial version of events given by the claimant and by the other individual involved in the incident was inaccurately communicated to those who conducted the disciplinary process and would, inevitably, have led the latter to incorrect and unfair conclusions to the detriment of the claimant.
In truth, the Tribunal had suspicions that the other factors were at play in the decision to dismiss the claimant. He was blatantly treated in an unfair fashion. No reasonable employer would have arrived at the conclusions that the respondent arrived at nor would a reasonable employer have felt it necessary to treat him in the manner in which he was treated.
For the respondent to as it did was equally unfair to Mr. M (the other party to the incident that occurred) as he has clearly been left to feel considerable guilt and responsibility around the claimant’s dismissal. The Tribunal was impressed by the manner in which Mr. M. presented before the Tribunal.
The Tribunal is satisfied that the claimant should not have been dismissed. Indeed, a reasonable employer might well have concluded that no sanction was appropriate on this occasion. The Tribunal is of the view that the claimant was treated unfairly and that the facts suggest an inconsistency on the part of the respondent around issues of horseplay in the workplace.
The Tribunal must then consider the appropriate remedy. The claimant’s representative has urged the Tribunal to re-instate the claimant.
The Tribunal heard evidence from the claimant that some 8 weeks after dismissal he developed symptoms of depression and anxiety for which he has been receiving treatment. This has left him unavailable for work. While the Tribunal is not qualified to arrive at a medical assessment it is, nevertheless, satisfied on the uncontested evidence of the claimant that his residual anxiety can be expected to resolve on the conclusion of the Tribunal case so that he is once again available for work.
The respondent is in liquidation since the 13th of June 2016 and the liquidator remains in place.
Section 7 of the Unfair Dismissals Act 1977 provides that the Tribunal may order re-instatement where considered appropriate having regard to “all of the circumstances”.
While it might be argued that a work position must actually still exist within an employer’s organisation if there is to be re-instatement to that position, this Tribunal considers that it is not fettered in any way by this consideration where the employer is still in existence. In preferring this interpretation of it’s entitlement to make a Re-Instatement Order, this Tribunal is supported by the decision of the Employment Appeals Tribunal in the case of Rapple-v-Irish Press Newspapers UD841-1995
Re-instatement is the only remedy in this instance that has the possibility of providing the claimant with a level of redress as envisaged by existing Unfair Dismissal legislation.
Accordingly, the Tribunal makes an Order for re-instatement of the claimant. The claimant is to be re-instated from the 9th October 2014 with no loss of continuity and with the rights and entitlements that he enjoyed at the date of dismissal and any rights and entitlements accruing to fellow employees in his absence
The claimant has only being available for work during a relatively short period following his dismissal as a result of his subsequent illness. The Tribunal awards the claimant €5,400 (based on a rounded 9 week loss figure of €600) by way of monetary compensation. The claimant shall be entitled to apply for payment of this sum through the Insolvency Payments Scheme. From the date of dismissal to the date hereof the claimant is considered to have a period of 45 weeks of “Non Reckonable” Service.
These Orders of the Tribunal shall be binding on the Liquidator of the respondent company
Sealed with the Seal of the
Employment Appeals Tribunal