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Gorham’s wins appeal over employment tribunal ruling

Gorham's (Photograph by Akil Simmons)

A ruling that a warehouse worker was unfairly dismissed two days after his probation period had ended has been overturned.

While the Employment Tribunal found last year that Gorham’s owed David Robinson almost $19,000 for wrongful termination after he was fired on January 16, 2019, the company launched an appeal in the Supreme Court.

The firm argued in a hearing in April that it was entitled to let him go when it did.

In a judgment handed down last week, Puisne Judge Larry Mussenden found that Mr Robinson was terminated as soon as practical after his probation period ended when he failed to heed warnings that he needed to improve.

“The probationary period ended on January 14, 2019, which was a date when Mr Robinson was on scheduled days off, namely January 14 and 15, 2019,” he said.

“The evidence showed that because Mr Robinson was on his scheduled days off, when he came to work on January 16, 2019, he was terminated, that being the earliest opportunity for doing so as he was under the belief that a probationer could not be terminated on his days off work.”

While the judge rejected that Mr Robinson was owed 26 weeks of pay, as determined by the tribunal, he found that he was entitled to one week of notice and should receive one week of pay.

The court heard that Mr Robinson started work at Gorham’s on October 15, 2018, and began a 90-day probation period.

That period ended on January 14, but he was told on January 16 that he had been terminated.

Mr Robinson argued before the Employment Tribunal that he had been fired because he had called left work early on December 31 citing illness but the company did not believe he was actually ill.

He said that because of the nature of his termination, he should be treated as a full-time employee and be entitled to up to 26 weeks’ pay – a total of $18,990.

The tribunal found in his favour in a hearing last year, but the company launched an appeal on the basis that the tribunal had not properly considered all the facts in the case.

Craig Rothwell, counsel for Gorham’s, said the company had provided the tribunal a letter that highlighted issues raised with Mr Robinson on January 2, 2019.

The letter said that Mr Robinson had failed to stay at work on December 31 after the company refused to let him take the day as holiday.

However, he was also reportedly warned that he had been caught sleeping on the job and leaving his post without notification, and he needed to show a drastic improvement to be kept once his probation period had ended.

Mr Robinson accepted that he had met with management on January 2 and was given a warning, however he denied that he had ever slept on the job.

Mr Justice Mussenden said that given the circumstances, it appeared the tribunal had not properly considered the evidence of the January 2 meeting when evaluating the case.

He said: “If Gorham’s terminated Mr Robinson for going off work ill when they believed he was not ill on December 31, 2018, then why did they not terminate him on January 2 for that very reason when they met with him that day.

“There would have been no reason for Gorham’s to wait to terminate him.

“In my view, this is strong evidence that Gorham’s did not terminate Mr Robinson for leaving work for illness on 31 December 2018.”

Mr Justice Mussenden said Gorham’s was within its rights to terminate Mr Robinson when it did as his probation period had come to an end, although the company did owe him one week’s salary in lieu of his notice period.

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