Dismissal Deemed Fair

Background to Complaint

The claimant was employed as a caretaker at the school which caters for 640 children. He was employed from September 1999 to December 2005.

The incident that gave rise to his dismissal occurred in October 2005. The claimant intended to travel with some friends on 25th October to New York.

His employment contract stated that he was required to take annual leave during normal school holiday times and the final decision on leave rests with the Board of Management (BOM).

Annual Leave Request Declined

The claimant applied to the BOM for the leave during term-time but was refused and this was communicated in a letter dated 20th September. The claimant applied again and told his employer that he had found a replacement who had Garda clearance. As it turned out, the Garda clearance related to his replacement working as a taxi driver and not with children. The BOM declined leave as the replacement was not suitable to work with children. The decision was communicated in writing on 17th October and the letter explicitly stated that the claimant was expected to be present for work on the days he had requested.

Stress-Related Illness Claimed

The claimant was due to travel on the 25th October and on 20th October he delivered a doctor’s certificate from his general practitioner. It stated that he was unfit for work from 19th October until 2nd November because he was suffering from a “stress related problem”.

On receipt of the medical certificate the BOM decided that the claimant should be independently examined. A letter, personally delivered by the chairman of the Board, requested the claimant to attend for a medical examination on the morning of 28th October. Although the employee’s car was in the driveway and the TV on, there was no answer so the letter was dropped into the letter box. The employee denied receiving the letter and said his wife had put it aside and only told him about it on 3rd November.

The claimant attended his dentist on 21st October who performed an upper molar extraction. He returned to his dentist on 24th October complaining of pain at the extraction site. The dentist gave him a certificate confirming attendance and stating that in his view he was unfit for work for 7 days. This certificate was not given, however, to the BOM until 4th November.

The claimant claimed that he decided that while he was home alone and had tickets for New York he might as well recuperate there as at home.

On his return to work on the 3/11 he confirmed he had been to New York and BOM decided to suspend him on full pay pending an investigation.

He attended a meeting with the BOM with his solicitor on 14th November. At the end of the meeting, it was decided to dismiss the claimant.

Under his contract the claimant had a right to appeal to the Chairman of the BOM or another appropriate person. The claimant claimed that his former solicitor had a copy of his letter of appeal on file but the chairman of BOM had no recollection of receiving such a letter and no such letter was on the BOM file.

Dismissal Deemed Fair

The Tribunal found that:

  • The claimant was determined to go on his trip to New York by having booked the trip prior to receiving permission for leave, ignoring a letter asking him to attend a medical examination and relying on two bland medical certificates where the circumstances pointed to him having gone to New York in defiance of the BOM
  • BOM acted fairly in dismissing the claimant.

The Tribunal dismissed the claim under the Unfair Dismissals Act, 1997-2001.

Case: Barry v Board of Management St. Oliver Plunkett School, Employment Appeals Tribunal, 2006

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