UD831/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Employee        -           claimant                                                                                  UD831/2012

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr E. Murray

Members:        Mr D. Hegarty

                        Mr J. Flavin

heard this claim at Cork on 6th November 2013

Representation:

_______________

Claimant:         Mr. Simon Kelly, Solicitor, 1/2 Anglesea Street, Cork

Respondent:    Mr Eugene M. Glendon, Coakley Moloney, Solicitors, 49 South

                        Mall, Cork

Dismissal is not in dispute in this case.

Summary of Evidence

The respondent is in the manufacturing industry; the claimant worked on a production line. The respondent has a zero tolerance policy towards absenteeism; any absence must be covered by a Social Welfare certificate and is subject to the respondent’s Absence Disciplinary Procedure.

The claimant had been suspended without pay as a sanction for absence from work on a previous occasion. In October 2010 the claimant commenced an extended absence from work due to illness. The claimant attended the company doctor at the request of the respondent. The result was that the claimant was suffering from a non-occupational illness that should be reviewed in 6 weeks. The claimant saw the company doctor again and he determined that the claimant was still unfit for work and he could not say when she would be fit to return to work.

The respondent wrote to the claimant on the 3^rd of August 2011 requesting the opinion of the claimant’s doctor regarding a possible return to work, as the respondent was considering terminating the claimant’s employment at this point. The respondent did not receive a response from the claimant or her GP. As a result of the claimant’s continuing absence, a lack of a possible return to work date and her previous disciplinary record for absence the respondent terminated her employment by letter of the 19^th of September 2011.

The claimant maintains that her GP sent a response to the respondent’s 3^rd of August letter dated the 12^th of August 2011 directly to the respondent. The claimant’s doctor produced a summary letter dated the 1^st November 2013 outlining what the 12^th of August 2011 letter contained. It stated that she was unable to give a definitive return to work date for the claimant. The claimant’s GP’s letter states that, ‘I confirm that on the 12^th of August 2011 I issued (the claimant) with a letter addressed to her employer.’ The claimant was deemed fit to return to work as of the 3^rd of November 2012.

Determination

The Tribunal have considered this matter carefully and while they have very significant sympathy with the claimant they are unable to find any flaw in the conduct of the respondent or in the reasonableness of its decision making in relation to the matter. Consequently, the Tribunal are unable to make a finding of unfair dismissal against them.

The claim under the Minimum Notice and Terms of Employment Act also fails.

Finally, the Tribunal notes that the Respondent’s HR Manager has undertaken to furnish the Claimant with a reference and the Tribunal welcomes this.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)