EMPLOYMENT APPEALS TRIBUNAL
Gabor Mihaly Hidvegi
Rosderra Irish Meats Group
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMNET ACTS 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath
Members: Mr A. O’Mara
Mr F. Barry
heard this claim at Tullamore on 3rd May and on 20th June 2016
Claimant: Mr Robert Crowley BL instructed by McGuigan Solicitors, Main Street, Belturbet, Co. Cavan
Respondent: Mr John Brennan of IBEC, Ross House, Victoria Place, Galway
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced over the course of two days of hearing. The claimant brings his claim under the Unfair Dismissals legislation arising out of the termination of his employment on or about the 6th of August 2015.
The claimant is a Hungarian national and had been employed with the respondent entity since in or around May of 2006. The respondent company is in the business of meat production and the claimant was a boner and cutter and general factotum in the plant and at the time of dismissal the claimant was on a salary of circa €490.00 per week.
The claimant was dismissed at a meeting conducted by the manager on the 6th August 2015. This was the second of two meetings conducted over the course of two or three days and which took place on the claimant’s return to the workplace after a two week period of illness.
The respondent is a production led company, where line operative numbers are key to a steady production. The Tribunal recognises that employees cannot expect prolonged periods of absenteeism to be acceptable in such a workplace and there can be no doubt that the Company Handbook has quite detailed guidelines in respect of absenteeism certification and notification.
The claimant had allowed a significant number of absenteeisms to tarnish his generally good working record. By the start of 2015 the claimant was taken aside by his immediate supervisor and told how the previous year’s absences had amounted to 21 days, which is an unacceptable number of days.
It is generally accepted that the claimant’s absences from the workplace were usually certified by a medical practitioner and though there is some question about whether he notified the workplace as quickly as he might be expected to have done the Tribunal was shown at least one text message sent to his supervisor 2 hours before his shift was due to start and which his supervisor had apparently forgotten.
By April 2015 the claimant had attracted the attention of management once again at which time the claimant had built up a full 12 days of absenteeism. Again, it seems to be accepted that this too was probably certified and, as such, excusable but the respondent company opted to discipline the claimant at this time as his absences ‘put a burden on other staff members and negatively affect productivity’. The claimant was given a 2 day suspension and a final written warning.
The Tribunal notes that there had been a previous warning on file over a failure to work overtime but on balance believes this incident and warning have no bearing on what subsequently happened.
In July of 2015 the claimant became sick with asthma type symptoms and was in need of medical attention. It is an unfortunate fact that this illness gave rise to two weeks of absenteeism. Again, it seems that this absence was medically certified and the Tribunal is satisfied that the claimant notified his supervisor that he was going to the doctor on the first day of the absenteeism.
On his return to the workplace in early August, the claimant was brought into a meeting with the HR manager. It is noted that B, a fellow employee of the claimant and a Hungarian national was available to translate. The Tribunal accepts that B did the best she could in all the circumstances but is surprised to note that the respondent failed to heed the concerns raised by the claimant as to the adequacy of the translation being provided. This is in circumstances where it is clear to the Tribunal that the claimant’s grasp of English is deeply imperfect.
The claimant had a union representative at this meeting but it is clear from the evidence that the union representative acted in the capacity of ‘witness’ rather than representative.
There can be no doubt that the claimant was placed at a huge disadvantage by the manner in which these meetings were conducted. Counsel for the claimant invited the Tribunal to recognise, the many and varied, breaches of fair procedure and the Tribunal has to acknowledge the truth of this.
Not least of the issues is the generality of the reasons for which the claimant was dismissed. There was no investigation into a specific complaint out of which this disciplinary process arose. Instead there was a letter sent some 4 to 5 weeks after the hearing which simply cited persistent absenteeism. Whilst the Tribunal accepts such absenteeism is difficult to deal with and especially in a production line enterprise, the Tribunal must also recognise that where a company explicitly provides for excusable absenteeism then the company must clearly explain how an excusable absenteeism becomes inexcusable.
Another area where the respondent’s procedures were at odds with the principles of fairness was the apparent failure to notify the claimant in writing that a right to appeal could be availed of.
On balance, by a majority decision, the Tribunal finds the dismissal to have been unfair and taking all the circumstances into account awards the claimant the sum of €8,000.00 under the Unfair Dismissals Acts 1977 to 2007.
The claim under the Redundancy Payments Acts 1967 to 2007 is dismissed.
The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 succeeds and the claimant is awarded the sum of €1,960.00,
Sealed with the Seal of the
Employment Appeals Tribunal