01 Dec Dismissal Upheld For Failing To Work Rostered Hours on Xmas Day

This month I will be looking at some topical workplace cases in respect of the Xmas holiday season. A gas fitter had his appeal against his dismissal turned down by the EAT recently (UD888/2013)in respect of his refusal to work on Xmas Day 2012 as per a roster that had been published the previous February.

The employer outlined that they provided emergency call out services on a 24 x 7 basis, 365 days of the year in respect of reports of the smell of gas and receive 13,000 reports every year.  A call out roster for staff was prepared every February in order to give adequate notification to those that would be covering key holiday periods. The employee who had worked with the Company since 2005 did not raise an issue with the roster until the 17th December 2012 when he told his supervisor that he had a problem covering  the 24th and 25th December as he wanted to be with his family. He was informed that it was late to be raising issues.  Attempts to find someone to cover for him were unsuccessful and hotel accommodation in Dublin was offered to the employee and his family as he had moved to Wexford and he did not want to stay with his mother in law.  A meeting was held with the employee, his shop steward, the HR Manager and the Operations Manager on the 21st December during which the employee confirmed he did not intend to carry out his on call duties over Xmas as he did not want to be away from his family. 

The employee was informed that his refusal would constitute gross misconduct and result in his dismissal and he was suspended with pay.  The employee was spoken to again after the meeting and informed that he was putting his job at risk for the sake of two days over Xmas.

The employee did not provide the on call cover as required and was dismissed on the 8th January 2013. He appealed the dismissal on the grounds that the sanction was too severe but the dismissal was upheld.

The EAT agreed with the Company and said that the employee had not fulfilled his basic contractual duties in respect of his rostered hours. The Company had been reasonable in dealing with the matter and had attempted to seek someone to cover the hours and ultimately it was reasonable to dismiss in the circumstances when the consequences of not fulfilling the roster was clearly spelt out to the employee.

Lessons For Employers

• As many businesses now work on a 365 day basis, it is important that requirements in respect of working holiday periods are made clear at the outset of the employment relationship to avoid potential problems. In this case not only did the employer notify employees well in advance about the Xmas roster, they were also very reasonable in dealing with the issues raised by the employee even though it was very late in the day.
• As always make it clear if employees may be required to work over public holidays and key holiday periods. A clear contract and relevant HR procedures is the best way.
• Spell out the consequences of not carrying out required tasks and make sure employees understand implications of their actions.