EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Caroline Wrenn, UD320/2012
Against
Tesco Ireland
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. F. Murphy
Members: Mr. D. Morrison
Mr. T. Gill
heard this claim at Castlebar on 16th October 2013 and 1st May 2014
Representation:
Claimant: James Lucey & Company, Solicitors,
Cumberland House, Emmet Square, Birr, Co Offaly
Respondent: Mr. John Brennan, IBEC, West Regional Office,
Ross House, Victoria Place, Galway
Respondent’s case:
The respondent is a large grocery retail chain and the claimant was employed in one of its outlets since 18th August 2008. The claimant was absent on sick leave from February 2011 until her dismissal in August 2011.
The respondent has a sick leave policy which allows for eight weeks paid sick leave and a period of six months during which an employee receives support and encouragement to enable them to come back into the workforce. However after this six month period has expired if the employee is not fit to return to work and is unable to provide a likely return to work date the respondent may move to dismiss that employee. There is some flexibility in the application of this policy, for example In respect of long serving staff.
In the claimant’s case she reached the end of her six month sick absence and was referred to the company doctor who found that she was fit to return to work. However it was still the claimant’s position that she was unfit to return to work due to another illness that the company doctor did not consider. Therefore the claimant was given an opportunity to submit a second medical opinion to support her position but after a number of weeks and several meetings the claimant failed to provide such an opinion. The decision was then taken to dismiss the claimant and a letter to this effect was issued to the claimant. The person who made the decision told the Tribunal that he had no alternative but to dismiss the claimant in the circumstances.
The claimant appealed this decision and the person who heard the appeal upheld the decision to dismiss her. The appeal hearer told the Tribunal that he decided to uphold the claimant’s dismissal as the claimant was still unable to provide a return to work date.
2nd day of hearing: 01st May 2014.
Claimant’s case:
The Tribunal heard evidence from the claimant. She commenced in 2008 with the respondent her role was as a general operative which included operating checkouts and scanning items at the checkouts. She enjoyed work and got on with all staff. She was never disciplined.
At the end of 2008 to early in 2009 she developed a condition called foot spurs and her heels were painful. She got injections for the condition and was able to return to work “After a couple of months”.
In April 2010, she had an accident at work whereby she accidently inhaled an Anti-Insecticide (AI) spray whilst she was scanning the item. She was out of work unwell and returned to work in July 2010. However in February 2011 she left work as she was “suffering at work” every day and every time a transaction involved AI she was worried. She was afraid of coming into contact with the insecticide.
The claimant was asked why she left and she explained that it was because she did not get assurances regarding the insecticide. She felt that every time that she brought up the subject in work about the insecticide no-one would talk to her about it. She also left work in February 2011 because of her foot spurs re-occurring. The claimant outlined her medical certificates to the Tribunal.
She met two people from the respondent whilst she was out. They asked her how her foot spur condition was and how they could help she told them that she was getting injections for them. The asked her for a guide as to how long she would be out and she told them three to four months. There were no other discussions. She was not told that she could work in another department.
She was asked to attend the company doctor in June, which she did. She told the doctor that he could contact the orthopaedic specialist. She also told the doctor that she had inhaled AI but he told her that he was only dealing with her foot spurs complaint.
She had a meeting with the company on 02nd August 2011. She was asked to give a return to work (RTW) date but she told them that she could not give a RTW because she was still in treatment. They agreed to have another meeting with the company on 16th August 2011.
At around this time she left matters into the hands of her solicitor because she was not getting guidelines (regarding AI material/matters). Anytime she brought up the subject of the inhaled AI she was told that they could not talk about it at all.
She was to have a meeting with the company on 16th August 2011, but before that day she received a letter of dismissal dated 12th August 2011. She received another letter on 17th August 2011 i.e. two letters on 17th August.
“DATE: 13/08/11
Thank you for attending the welfare meeting on 2" august 2011.
This meeting is part of the support structure to discuss the Doctors report and to hear an update on your condition relating to your footspurs.
I informed you at the last meeting on 20/04/11 that we needed confirmation from your doctor giving us an update medical opinion of a return to work date. You have been unable to provide this information. Your support period has now expired and even with us suggesting you could return on reduced hours or on a different department this was not an option as you cannot stand or sit for any length of time.
I have taken all mitigating circumstances into consideration and have enclosed a termination letter.”
letter dated 12/08/11
“Dear ……,
I refer to our meeting with you on the 2nd August 2011
The purpose of the meeting was to discuss your long term sickness absence and the medical report arising from your examination by the Company doctor.
As you are aware, the Company doctor expressed the view that you would not be fit to resume normal working for the foreseeable future due to your condition being chronic.
At the meeting you were unable to provide an alternative medical option to that of the Company doctor.
Whilst we have held your position open for you to date, we cannot continue doing so indefinitely. In light of the Occupational Health report, there are no grounds to continue holding your position open for you given that you will not be in a position to resume normal working in the near future.
We must therefore now advise that we are left with no option but to terminate your contract of employment on grounds of ill health. Your termination will take place in line with the Minimum Notice Legislation (27th August 2011)
In the event that, at a later date, you manage to achieve full fitness and are in a position to carry out all function associated with the role you held with Tesco, we would me more than happy to consider an application from you for re-employment.
In accordance with the agreed grievance and disciplinary procedure you have the right to appeal this action. If you wish to do so please write XXXXXXXX outlining the grounds for the appeal within 5 days of receipt of this letter.”
As she got the letter of termination and the appeal letter on the 17th August she was not sure if the 5 days to appeal had elapsed. In any event an appeal was heard as were further appeals.
Determination:
It is clear to the Tribunal that there was a breach of procedures in that the dismissal letter was issued prematurely. However the company rectified that error by a number of extensions of time to allow for proper grievance procedures to be followed.
The Tribunal finds therefore that as a matter of fact that the decision to dismiss was not grounded on possible Civil Legal proceedings.
The claimant throughout failed to furnish to the respondent a medical certificate certifying a return to work date and in all the circumstances, the claimant being unfit for work, was not unfairly dismissed.
The claim under the Unfair Dismissals Acts, 1977 To 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)