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Recent Employment Appeals Decisions – 6 June 2012 – Part 2

Hi all, following on from my previous case summaries posted, some further cases are summarised below. Again these decisions can be accessed on the Employment Appeals Tribunal website or you can have them emailed directly to you if you subscribe at eat@djei.ie.Case UD1146/2010/WT 1487/2010 – MB v City Electrical Factors BackgroundThe Claimant commenced employment with the Respondent (a supplier of electrical equipment) as a Sales Executive on or about 1st February 2008 and resigned by letter issued on 23rd June 2010. The Claimant stated that he enjoyed a good relationship with his immediate supervisor, the Branch Manager but that difficulties arose following events in the last week of April 2010, when all employees of the Respondent company, including the Claimant, were expected to partake in the annual stock take which took place on 30th April. The Claimant maintained that he was unable to partake in the annual stock take due to illness. The Branch Manager suspected that the Claimant had in fact attended a wedding on that date as he had previously sought and been refused permission to take time off to attend the wedding. On 30th April, the Branch Manager drove to the Claimant’s home (at some considerable distance) for the stated purpose of checking the mileage on the Claimant’s company car for the purposes of completing the stock take. When he called to the house, he rang the doorbell and did not receive any reply from the Claimant. A subsequent meeting took place between the Claimant and the Branch Manager on the following week on 4th May 2010. The Claimant alleged that at that meeting the Branch Manager called him a liar. The Claimant further alleged that the Branch Manager lost his temper and came around the desk and charged at him with his shoulder into his chest with force. The Branch Manager denied that any physical assault took place and said at most he may have brushed against the Claimant’s coat. The Claimant alleged that following the meeting he ran out the door and was in a terrible state and subsequently made a complaint to the Respondent’s General Manager and to the Health and Safety Authority. The Claimant said that following his making of the complaint to the General Manager, the Branch Manager phoned him and made a threat however this was denied by the respondent.  There were numerous conflicts of evidence at the hearing. Following the meeting of 4th May and his complaint, the new Group Manager wrote to the Claimant by letter dated 11th May 2010 which stated inter alia: “Please note that we require the specific nature of illness to be recorded on Medical Certificates”. If your absence is continuing, you must telephone your Manager ..….. on the first day of each week in which you are absent ….. Failure to comply with any of the terms of Sick Leave Policy may result in disciplinary action (up to and including dismissal). Under the terms of the Sick Leave Policy, the payment of sick pay is at the absolute discretion of the employer.” The Group Manager’s letter then stated that he had “reviewed your Sick absence record and noted that in the current leave year you have been absent on sick leave on the following dates: 19th/26th April inclusive, 29th/30th April, 7th/10th May. Having regard to the fact that (the employer)has paid you sick pay during these frequent, intermittent absences to date, I must advise you that (the employer) will be exercising its discretion not to pay you sick pay for the period of your current absence”.Counsel for the Respondent submitted that the Claimant had failed to comply with the requirement to invoke and follow the grievance procedure and had failed to utilise the grievance procedure up to and following his resignation. No written complaint was ever made by the Claimant. The Claimant alleged that he had never been furnished with nor had he ever seen the relevant company policy. The Respondent maintained that it was readily available, including on the company Intranet, but that in any event the letter of 15th May clearly set out that a written complaint was required.Following the Claimant’s resignation, the Respondent’s solicitors wrote to the Claimant’s Solicitors on 2nd July inviting the Claimant to reconsider his decision to resign from his employment and stated that the employer remained willing to investigate the complaint against the Claimant’s Manager. In response, the Claimant’s Solicitor stated that the Claimant’s health had suffered greatly as a result of what had happened to him during the course of his employment and the Claimant did not wish to reconsider his position.DeterminationThe onus of proof in a constructive dismissal case rests with the Claimant, who must prove the behaviour of the employer justified his action in resigning. The burden is onerous. Moreover, Counsel for the Respondent placed reliance on Conway .v. Ulster Bank Ltd (UD474/1981) in which the employee resigned his position without fully engaging with the Respondent company’s grievance procedures in order to resolve his difficulties.The Tribunal considered whether it was reasonable for the Claimant in these particular circumstances not to exhaust available procedures. In essence, the Claimant’s case was that he was not required to do so for a number of reasons including the threats made against him, being wrongly accused of having a poor sickness record and being cut him from the Sick Pay Scheme. In addition the Claimant stated that no meaningful effort was made by the Respondent to follow up with him in relation to his failure to provide a written complaint and that a letter was sent to him withdrawing sick pay which also threatened him with disciplinary action if he did not file complete Sick Certificates.The Tribunal finds, having regard to all the facts in this particular case, that the Claimant’s termination of his employment constitutes constructive dismissal within the meaning of the Unfair Dismissal Acts. However, the Tribunal finds that the Claimant substantially contributed to his constructive dismissal, taking into account the fact that he had agreed to submit a written complaint and never indicated that he would not do so, and had resigned without giving the employer any notice of his dissatisfaction. The Tribunal awards the Claimant €6,500 under the Unfair Dismissals Acts, 1977 to 2007CommentThis is a lengthy decision dealing with difficult test of constructive dismissal. Section 1 of the Unfair Dismissal Act 1977 (as amended) defines Dismissal inter alia as “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”The statutory definition therefore contains two tests either or both of which may be argued by an employee. In the “Contract” test, the employee claims an entitlement to resign on the basis that there has been a significant breach of contract by the employer which goes to the root of the contract or the “Reasonableness” test whereby the employee claims that it was “reasonable” for him to resign.There is a wealth of caselaw in this area which is not possible to deal with here however some successful cases on the employee front to look out for include Laird v Health Service Executive (UD165/2007), Glynn v River Island Clothing Company (Ireland) Limited (UD 583/2008), Carmella Simpson v The Finglas Adult and Child Centre (Circuit Court Appeal), Melligan v Karmarton Limited (UD101/2008), Kane v Willstan Racing (Ireland) Limited (UD1263/2008), Barry O’Carroll v Sovereign Security Limited (UD1131/2009), Fionnbar Walsh v Atlantis Holiday Group Limited (UD1370/2009) and Langowski v Connemara & Isles Heritage Tourism Limited (UD1030/2009).Case UD2114/2010 – Appeal of Tesco Ireland Limited against decision of Rights Commissioner in the case of LGBackgroundThe store HR manager gave evidence that shrink or stock loss was a big issue in the store. It was discussed at meetings and raised with employees every day. The respondent did have a contract of employment, which referred to a staff handbook that was given to all members of staff. The incident that led to the respondent’s dismissal happened on the evening of 9 November 2009. The store HR manager was made aware of it by the security officer the following morning. The respondent had failed to scan 4 items while serving a customer. The store HR manager called the respondent, accompanied by her shop steward, to an investigative meeting. The check-out manager also attended. The store HR manager asked the respondent if she remembered anything. The respondent did not remember anything. The store HR manager suspended the respondent on full pay and referred the matter to the store manager. The CCTV footage of the incident was shown to the store HR manager and to the Tribunal.On the CCTV footage the respondent was serving a customer’s groceries. Four items did not scan when the respondent passed them across the scanner.   The store manager made the decision to dismiss. He did not feel that the decision was disproportionate as the bond of trust was broken.  After her meeting with the respondent the employee relations manager looked at the CCTV footage. There was a further meeting with the respondent because the employee relations manager felt that it was important to hear her explanation. The employee relations manager decided to uphold the decision to dismiss the respondent. The respondent accepted that she had been trained in till procedures. She was aware of her responsibility to scan all items. She made a mistake and apologised. The respondent did not feel that she deserved to lose her job.DeterminationThe Tribunal noted that details of the incident that led to the dismissal of the respondent were accepted by both parties. Also there was no evidence that the respondent acted dishonestly or in bad faith. In considering the proportionality of the sanction imposed by the appellant, the Tribunal took into account the 8 year unblemished employment record of the respondent and the availability of alternative sanctions to the appellant. The Tribunal accepted that the appellant needed to take action to contain the serious problem of shrinkage in the store. The Tribunal found that in the circumstances the sanction of dismissal was not warranted by the apologised for the lapse. The dismissal of the respondent was unfair. The appeal under the Unfair Dismissals Acts 1977 to 2007 fails. The recommendation of the Rights Commissioner is varied and the respondent is awarded the sum of €13,000.00.CommentWhere an employer imposes a sanction that is disproportionate to the wrongdoing of an employee, the employer may face difficulty if later defending the fairness of a dismissal. Cases such as Frank Shortt v Royal Liver Assurance Limited ([2009] E.L.R. 240) illustrate that once an employer can show that s/he adopted a diligent, fair and reasonable approach to both disciplinary procedures and sanctions, it is not the role of the courts or tribunals to conclude that the employer should have acted differently.The issue of proportionality of response arose recently in the case of Bigaignon v Powerteam Electrical Services Limited (UD 939/2010)  whereby the employee was dismissed for gross misconduct after he failed a random alcohol and drug test, having tested positive for cannabis. While the employee conceded that he had been in breach of the company’s alcohol and drug policy and that proper procedures had been followed by the company in effecting his dismissal, he argued that the sanction of dismissal was unwarranted.The Employment Appeals Tribunal  acknowledged that the only question for it to answer was as to the proportionality of the sanction:“Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair.”The Employment Appeals Tribunal noted that the test to be applied as to whether the sanction was reasonable was as set out in the case of Noritake (Ireland) Limited v Kenna (UD88/1983) in which the EAT considered the matter in terms of three questions:1.  Did the company believe that the employee misconducted himself as alleged?2.  If so, did the company have reasonable grounds to sustain that belief?3.  If so, was the penalty of dismissal proportionate to the alleged misconduct?The Employment Appeals Tribunal found that the sanction of dismissal for gross misconduct was proportionate having regard to all the circumstances and the employee’s claim for unfair dismissal therefore failed.Case 1557/2010 – GC v The Mall Bar LimitedBackground The respondent owner of the premises gave evidence that he ran a small bar with two employees and that shifts usually ran from 5 to 7pm and 10 pm to close. It was normal procedure that the employees would get two free drinks at the end of each night but he stated that he had reason to warn the claimant on numerous occasions to cut down on his drinking during working hours. It was the respondent’s position that customers had complained that he was drunk on duty and he had seen evidence of it himself. An incident occurred on Easter Sunday night which led to the claimant’s dismissal on Monday morning 5th April. The owner’s niece was working with the claimant and told the owner that he was drunk on duty. He also got phone calls from customers saying that he was drunk however the claimant denied it. The owner proceeded to dismiss the claimant. Under cross examination the owner admitted that there was no contract in place and that he had no procedure for dismissing an employee. The owner stated that he had given the claimant three or four warnings previously. A customer gave evidence that the claimant was slow to serve people and was giving out wrong drinks and that alcohol could be smelled from him but that she did not see him drinking. The Claimant stated that he knew drinking during working hours was prohibited but noted that he had never received any previous warnings. He stated that he did not drink on the night in question.DeterminationThe Tribunal acknowledged the conflict of evidence. The respondent was unsure if he was on the premises on the Sunday night in question. It was accepted that there were no payslips or terms and conditions of work in place. Procedures were non-existent. Nevertheless the claimant’s evidence was less than compelling and not altogether in accordance with the T1A form submitted. Accordingly the Tribunal awards a sum of €2,200 under the Unfair Dismissal Acts 1977 to 2007 and €800 under the Minimum Notice and Terms of Employment Acts 1973 to 2005.CommentThe respondent had no clear procedures in place and in addition there were no payslips or terms and conditions of employment in place. A timely reminder for employers to undertake a “workplace audit” to ensure all proper documentation is in place. Although the claimant was held to be unfairly dismissed, the Tribunal held that the evidence presented by the claimant was less than compelling and it was interesting to note that the Tribunal referred to the fact that the claimants evidence was not in accordance with the T1A form submitted. Although an employee is not restricted to the evidence presented on the T1A (please note a new complaint form is now in existence which replaces the old Form T1A on the workplace relations website link here) it must in some way purport to relate to the evidence given.The above decisions are a summary of the facts in the cases involved. The author accepts no responsibility for any errors or omissions in respect of the case summaries and any commentary does not purport to be legal advice. Specific legal advice should be sought in respect of any issues arising.

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