General operative, who withdrew his appeal to his employer against his dismissal for gross misconduct, is awarded €18000 for unfair dismissal due to procedural defects in the investigation process.
General operative-felt unwell-went home-dismissed for gross misconduct-refused to answer questions in investigation-claimant contacted union representative-appealed decision to dismiss-withdrew appeal on union representative advice-claimed for unfair dismissal-investigation carried out by employer-did not inform claimant-did not give opportunity to partake in investigation-employer failed to tell claimant of his right to representation-investigator also acted as disciplinarian-procedural defects in process-sufficiently flawed and invalid-withdrawal of appeal on advice of union official reasonable-€18,000 for unfair dismissal-€800 awarded under Minimum Notice and Terms of Employment Acts.
Decision published 8th November, 2012
For claimant: Grainne Duggan BL instructed by Anderson & Gallagher solicitors
For respondent: Noel O’Hanrahan, O’Hanrahan Lally solicitors
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The EAT dismisses a claim for unfair dismissal by a supermarket sales assistant who had failed to engage with the employer and who effectively dismisses himself.
Sales assistant in supermarket-accident at work-sick leave-claimant failed to respond to letters-company tried to assist coming back to work-claimant went to UK for treatment-company failed to follow it’s own disciplinary procedure-not fatal as claimant did not respond to correspondence-claimant could not hold company accountable for failing to receive letters-claimant left messages with other employees-not sufficient-claimant should have written to personnel manager-Tribunal expects employer to behave reasonably-also expects employee to do likewise-employer acted as a reasonable employer-claimant frustrated his contract by failing to engage-claims under Unfair Dismissals Act and Minimum Notice and Terms of Employments Acts fail.
Decision published: 8th November, 2012
For claimant: Mr Oisin Clarke BL instructed by Ms Megan Shannon, Paul W Tracey solicitors
For respondent: Mr. David Farrell, IBEC
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EAT awards €20,000 under the Unfair Dismissals Acts 1977 to 2007 to waitress who thought she had no option but to leave her employment. Tribunal also finds that the investigation process ineffective.
Waitress-inappropriate touching by manager alleged-complaints and serious allegations-respondent acted quickly-found some of her allegations were substantiated-delay in issuing decision due to absence of waitress on sick leave-no detail of substance of investigation, the content or reasons for outcome communicated to waitress-appeal allowed to decision maker-appeal to decision maker not a valid appeal option-appeal to be sent to a third party not communicated to waitress-respondent made stringent efforts to keep waitress and manager apart-claimant never told she would have complete certainty that this would continue-investigation process flawed-no evidence of content of investigation-Tribunal does not believe “safe environment” to work in-efforts by employer to resolve issues-request from claimant’s union ignored-employer sought to engage directly with complainant-complainant had no choice but to leave-investigation process ineffective-Minimum Notice and Terms of Employment claim not addressed and dismissed-awarded €20,000 under Unfair Dismissals Acts.
Decision published: 30th October, 2012
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Employments Appeals Tribunal awards €48,000 under the Unfair Dismissals Acts, 1977 to 2007, for unfair dismissal on the basis of the completely disproportionate actions of the employer to the incident and the absence of basic fair procedures and a flawed investigation and disciplinary procedures. EAT also awarded €1,900 under the Minimum Notice and Terms of Employment Acts.
Incident at The Square, Tallaght-use of “excessive force” alleged-basic fair procedures not adhered to-investigation and disciplinary procedures were flawed-respondent’s actions completely disproportionate to incident-no input by directors or senior management-no recall whether possible sanction was mentioned to claimant-15/20 minutes break between investigation meeting and disciplinary meeting-disciplinary meeting conducted by same person who conducted investigation meeting-“terminate” written on notes at end of investigation meeting-use of force basis of decision for dismissal-HR director accepted procedures were flawed-nevertheless upheld decision to dismiss-alternative sanctions not adequately considered-mitigating factors, including unblemished record, not sufficiently considered-at no stage did respondent communicate to the claimant that he may be disciplined.
For claimant: Siptu
For respondent: Tim O’Connell, Ibec
Decision published 30th October, 2012.
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