Correcting Order
EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Seamus Ward UD1263/2013
- Claimant
Against
Coverall Courier Services Limited
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O’Leary BL
Members: Mr. D. Peakin
Ms. E. Brezina
heard this claim at Dublin on 19th November 2014
Representation:
Claimant: Mr. Aaron Shearer BL instructed by:
Aoife McGuinness, McDonough & Breen, Solicitors, Distillery Lane,
Dundalk, Co. Louth
Respondent: Richard B. Hendrick, RBH Project Mgt. Ltd., 17, Charnwood Park, Clonsilla,
Dublin 15
This is a correcting order to the order dated and should be read in conjunction with that order.
The correct name of the claimant in this matter is:
Seamus Ward, 17 Drive One, Muirhevnamor, Dundalk, Co. Louth.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)
EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Eamonn Blair, 18, Yellow Meadows Park, Clondalkin, Dublin 22 UD1263/2013
- Claimant
Against
Coverall Courier Services Limited, 77, Park Street, Dundalk, Co. Louth
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O’Leary BL
Members: Mr. D. Peakin
Ms. E. Brezina
heard this claim at Dublin on 19th November 2014
Representation:
Claimant: Mr. Aaron Shearer BL instructed by:
Aoife McGuinness, McDonough & Breen, Solicitors, Distillery Lane,
Dundalk, Co. Louth
Respondent: Richard B. Hendrick, RBH Project Mgt. Ltd., 17, Charnwood Park, Clonsilla,
Dublin 15
The determination of the Tribunal was as follows:
Background:
The claimant commenced employment as a Courier (Driver) with another employer in 1982. The respondent company took over the business in September 1988 and the claimant’s years of service transferred as per a transfer of undertakings. He did not receive a written contract of employment or written terms of employment. His duties including the delivery of packages / parcels / pallets on behalf of clients of the respondent company and was paid a net weekly wages of €449.75 plus a weekly subsistence allowance of €100.00 per week.
He was the only employee of the respondent. The Managing Director (CMA) was the other driver.
On the 4th August 2010 the claimant was involved in a work place accident which left him unfit for work until the 1st November 2010. The claimant returned to work for a period of 20 months. In late June /July 2012 the claimant was again absent on certified sick leave. The claimant was informed by the respondent’s witness in this matter (CMA) that he would need a medical certificate from his doctor to certify him fit (the percentage rate is not agreed) to return to work.
The claimant attended a Consultant Orthopaedic Surgeon who assessed his medical condition and issued him with a medical certificate, dated the19th March 2013, which stated:
“(claimant) sustained damage to his Left Achilles Tendon on the 4th August 2010, this was a complete tear of his Left Achilles Tendon that requires surgical repair. It has taken a considerable period of time to recover following his injury. At present there is an approximate 70-75% improvement in his condition.
At this stage in my opinion he is fit to return to work as a courier.”
The claimant was contacted by an advisor (representative on the day of this hearing) for the respondent company and invited to a meeting. This meeting took place on the 23rd June 2013. Following the meeting the claimant was offered an ex-gratia payment as a goodwill gesture which was refused by the claimant. The claimant’s employment was terminated on the 31st August 2013. The respondent paid him eight weeks’ notice and cited his termination was due to him not being in a position to fulfil his contract.
Respondent’s Position:
The Managing Director (CMA) gave evidence on behalf of the respondent company. He stated that after the claimant’s accident he was unable to carry out his duties in full. He could no longer handle large heavy deliveries leaving him, the witness, to carry out these duties leaving less time to deal with administrative duties.
In November 2012 the claimant approached the witness requesting he be made redundant. The witness explained that the job was not made redundant. When the claimant was again absent on sick leave he had to hire a person to cover the deliveries. The witness requested a medical certificate from the claimant to ensure he was 100% fit to return to work. He received the certificate dated the 19th March 2013. The witness told the Tribunal that he felt, having read the certificate, that the claimant was only 70-75% fit to return to work.
A Consultant, on behalf of the respondent, met the claimant to discuss the matter. The witness told the Tribunal that he had made the decision to dismiss the claimant as he could not carry out his duties to its full capacity.
On cross-examination he stated that he had to replace the claimant when he could not return to work and therefore could not make the claimant redundant.
Claimant’s Position:
The claimant gave evidence. He explained that he had an injury at work and a personal injuries claim had been settled between the parties. After this injury he was absent on sick leave and told the Tribunal that he had felt he was put under pressure to return to work in November 2010. He agreed with CMA to return but it would not be at his full capacity due to his injury.
In late June 2012 he spoke to CMA and requested some “time out” from work because of his injury due to the effect the painkillers were having on his leg. He never discussed redundancy. CMA asked would he keep him job open for him and he replied yes.
In November 2012 he felt fit to return to work, CMA requested a medical certificate. The claimant’s doctor advised he see a Consultant Orthopaedic Surgeon. He did so in March 2013 and submitted a “fit to return” certificate to the respondent. He arranged to meet CMA in mid-March 2013 and CMA told him he would be in touch. He again contacted CMA who told him, the claimant, that he was not 100% fit to return to work. There was no mention of the claimant attending a company Doctor.
The claimant sought legal advice. He was later approached by SMA’s father and an offer was made but refused by the claimant. The claimant was dismissed from his employment by a letter dated the 14th August 2013.
The claimant gave evidence of loss and explained to the Tribunal that he acquired the same type of employment as with the respondent in December 2013 but at a decreased weekly wage.
Determination:
It was clear to the Tribunal that the medical evidence provided by the claimant to the respondent established that the claimant was fit to return to work. The respondent could have had the claimant medically examined by their own medical practitioner to verify this fact but failed to do so. It follows that without medical evidence to the contrary they were not entitled to disregard the evidence of the claimant.
The Tribunal finds the claimant was unfair dismissed. Accordingly, the Tribunal awards the sum of €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)