Claire Dunne v Irish Prison Service [Employment Appeals Tribunal]

• Jurisdiction: Ireland
• Judgment Date: 29 September 2010
• Judgment citation (vLex): [2010] 9 JIEC 2901
• Date: 29 September 2010
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

Representation:

Claimant(s) : Ms. Rosemary Mallon BL instructed by Mr. Brian Gallagher, Gallagher Shatter, Solicitors, 4 Upper Ely Place, Dublin 2

Respondent(s) : Mr. Tony Kerr BL instructed by Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8

Abstract:

Employment law - Probation period - Absenteeism - Probation period extended by employer -

CLAIM(S) OF:	CASE NO.
Claire Dunne, 32 Maryborough Crescent, Dublin Road, Portlaoise, Co Laois - claimant	UD704/2009 MN722/2009

against

Irish Prison Service, IDA Business Park, Ballinalee Road, Longford - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:	Ms C. Gleeson B.L.
Members:	Mr E. Handley
	Ms M. Maher

heard this claim at Dublin on 22nd February 2010 10th May 2010 and 29th September 2010

Facts The claimant joined the Irish Prison Service on a 12 month probation but due to sickness absences this was extended on occasions to 22 months. The extension of the probation period was afforded to her to give her the opportunity to improve. The claimant did not believe her work absences had put her job at risk. However, the respondent had written to her explaining that her inability to provide regular service interfered with her ability to perform her role. Claimant had received warning about her absenteeism but she previously had written to the Governor explaining her reasons for sick leave and interpreted the warning letter as a standard response to her letter. She consulted her union for advice. She claimed unfair procedures in the manner of her dismissal.

Held by the Tribunal finding in favour of the claimant and awarding her €15,000 for unfair dismissal and €2,200 under the Minimum Notice legislation. They found the claimant had been dismissed during probation and there was a lack of fair procedures.

Reporter: BD

1 Preliminary point

2 At the outset of the hearing the respondent€s representative conceded the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

3 Respondent€s Case

4 The first witness for the respondent gave evidence that she was the personnel officer with the respondent organisation that is bound by Department of Finance regulations. As such all civil service policies are applied. The witness gave background information on general policies in relation to sick leave. There is no entitlement to sick leave but there are allowable limits. The limit for uncertified sick leave is 7 days in a given year. An employee may take a maximum of 2 days uncertified sick leave but a medical certificate is required if sick leave extends beyond 2 days. With regard to certified sick leave, an employee may be absent on full pay up to a maximum of 6 months. It is the policy of the respondent organisation to issue warnings if employees have been absent on uncertified sick leave for 5 days in a given year.

5 The claimant commenced employment on the 21 October 2006 as a recruit prison officer and in line with normal procedures was required to serve a 12 month probationary period. The purpose of this probationary period includes assessing newly recruited employees in respect of their work performance, general attendance and punctuality. As part of this process a number of probationary assessments are carried out on a case-by-case basis over the probationary period. The results of these assessments are forwarded to the Human Resources department.

6 The claimant€s probationary period was extended on a few occasions and her performance was continually assessed during her periods of extended probation. Her level of absenteeism was extremely poor and her punctuality and general attendance was a cause for concern. Whilst her general assessment was fair and general work was good her attendance record and punctuality disapproved from her 6 monthly report to her 10 monthly report. This dis-improvement occurred despite the claimant receiving warnings concerning her attendance and punctuality.

7 The claimant€s probationary period was then further extended to 18 months and then 22 months. Her 18-month report recorded that she failed to provide regular effective attendance and she was not recommended for confirmation of appointment. Her 22-month report again recorded her attendance record as bad. Her final report, which was a 26-month report, again recorded a poor sick leave record and very poor lates and her confirmation of appointment was again not recommended. At this point the claimant had worked for the respondent for over 2 years and had received numerous warnings in relation to her sick leave and punctuality. The witness gave further evidence that any sick leave absences attributable to the claimant€s pregnancy were discounted when the decision was made to terminate the claimant€s employment. The witness recommended that the claimant€s employment be terminated and this recommendation was agreed with by the Director General and Secretary General of the organisation.

8 Under...