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Jobseekers Benefit - Case 2

Question At Issue:

Nine-week disqualification.

Background:

The appellant was disqualified from receiving Unemployment Benefit for a period of nine weeks on grounds that he was dismissed from his employment through his own misconduct. He had been employed as a dog warden at an animal shelter. An internal appeal against his dismissal had been disallowed. The case was referred subsequently to a Rights Commissioner under the Labour Relations Commission but had not been heard at the time of the oral hearing. The question at issue was determined by the Appeals Officer following a second oral hearing, the first hearing having been adjourned in order to obtain a copy of the letter of dismissal issued to the appellant.

Oral Hearing:

The appellant attended, accompanied by his trade union representative. The Deciding Officer attended at the request of the Appeals Officer, as did the employer and another employee of the animal shelter. Two assessors had been invited to attend, one from the employer’s panel and one from the employee’s panel. On the day of the oral hearing only the assessor from the employer’s panel attended. The appellant gave his consent to proceeding in the absence of the other assessor. The Appeals Officer read out the report of the earlier hearing and advised that a full copy of the letter of dismissal was now on the appellant’s file.

In her evidence, the Deciding Officer stated that she had disqualified the appellant for the maximum period of nine weeks. She said that she considered this appropriate as he had been dismissed for gross misconduct. In support of her decision, she relied on a partial photocopy of the letter of dismissal issued to the appellant. She contended that she had photocopied the document she had been given by the appellant and that it had contained only two pages, the first page of the letter and the page outlining allegations numbers 6 and 7. She indicated that when she made her decision, these were the only issues she was aware of.

The Appeals Officer asked the employer to comment on each of the allegations set out in the letter issued to the appellant. These referred to the length of time for which stray dogs were held at the shelter before being put down, the matter of the appellant’s having kept his own dogs at the shelter and an allegation that the appellant bred dogs there for sale. The employer made reference to the provisions of the Control of Dogs Act, 1986 and outlined his concerns as to the ability of the shelter to fulfil its role if additional dogs were accommodated there. He indicated also that it was contrary to the ethos of the organisation to use their kennels to breed dogs for sale and he contended that the appellant had not maintained the Stray Dog Register in accordance with the Control of Dogs Act, 1986.

In response to the employer’s assertion that the appellant had an ethical responsibility to seek the owners of stray dogs, his trade union representative argued that this was not outlined in his written job description. The appellant agreed that he had kept his own dogs at the shelter but denied that this had caused any capacity problem in the kennels. He acknowledged that he had bred two litters for sale. In relation to the Stray Dog Register, his trade union representative produced a copy of the relevant legislation, arguing that the appellant was not required under the Act to register his own dogs. His employer accepted that the legislation did not require the appellant to enter his own dogs in the register.

The appellant made some additional points in relation to his dismissal and to the internal appeal against that dismissal, arguing in effect that he had been unfairly dismissed. In response, his employer submitted a folder containing all the documents he held in relation to the case, pointing out that there had been no notice of an unfair dismissal claim. The hearing concluded when all parties indicated that they had nothing further to say.

Consideration of the Appeals Officer:

The Appeals Officer noted the inconsistency in the evidence in relation to the letter of dismissal issued to the appellant. While the appellant insisted that he gave the complete letter to the Deciding Officer, she was adamant that all she got was a document containing the first and last pages of the letter. The Appeals Officer was satisfied that the Deciding Officer’s version was the more reliable one, though he considered that this did not excuse the fact that no attempt was made to get the remainder of the letter when it was self evident that it was incomplete. The Appeals Officer considered that it had been established that the appellant had used the employer’s kennels for keeping his own dogs for breeding purposes. He considered that this had had the effect of reducing the number of spaces available for stray or impounded dogs, or those handed in by their owners, compromising the level of service the organisation could provide in the area. He noted also that the evidence indicated that some dogs were put down without being kept for the statutory period of five days and that the Stray Dogs Register was not maintained to the standard required by the appellant’s employer. In terms of the governing legislation, he noted that the legislators might not have envisaged that dog wardens would keep their own dogs at the pound. The Appeals Officer concluded that the appellant had lost his job as a result of misconduct. He considered, however, that a nine-week disqualification was not justified by the circumstances of the case. He noted that the appellant had already suffered a good deal, having lost the job he had held for many years and with little prospect of finding other work at his age. In the circumstances, he considered a disqualification for three weeks to be more appropriate.

Outcome:

Appeal partially allowed.

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