EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD2342/2011, MN2363/2011
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 4th July, and 26th November 2013
Representation:
Claimant : Ms Patricia McCallum B. L. instructed by
PA Dorrian & Co, Solicitors, St Anne's Court, High Road, Letterkenny, Co Donegal
Respondent : Dessie Shields Solicitors, 16 Academy Court,
St Oliver Plunkett St, Letterkenny, Co Donegal
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant was employed as a waiter in the respondent’s diner. He was requested to move positions to that of cook as the cook was on maternity leave. He told the Tribunal that he had not received any training for this position and the work continued for four to five months.
On the 3rd August 2011 the claimant sustained a workplace injury whereby he suffered an injury to his feet from hot oil when the bottom fell out of the plastic container which held hot cooking oil. The manager removed his shoes and socks off and applied freeze gel. After some time the owner drove the claimant home. The claimant attended the local accident and emergency department. He contacted the manager concerning his injury who said that he did not think the claimant’s injury was that bad. The claimant begged to differ and again attended the accident and emergency department. He submitted medical certificates.
The claimant told the Tribunal that he was never invited back to work and felt that if he did go back he would be let go soon after. He did not return to the premises for a year and felt the staff “blanked” him. The claimant commented that he submitted his final medical certificate on the 2nd September 2011. He said that he had performed any duty requested of him; they had lied to him and had no regard for his safety.
On 3 August 2011 the claimant’s mother was surprised to see him home earlier than usual. It was soon clear to her that he had sustained visual and serious injuries and she described proceed to describe the claimant’s wounds to the Tribunal. This witness expressed annoyance that the manager neglected to alert the family about the condition of her son prior to departing the family residence where he had taken him. That evening she transported the claimant to an accident and emergency unit where his injuries were treated.
Two days later the witness called into the claimant’s workplace with the sole intention of furnishing the respondent with a medical certificate declaring her son unfit for work. While there she had an unpleasant and unwelcome verbal exchange with manager. According to the witness that manager smirked and laughed when discussing the claimant’s case. Among other comments the manager stated that the claimant had been reprimanded earlier on the way he handled certain equipment. When she relayed that information to the claimant his response was to call the manager a liar as he had never been reprimanded by him or anyone else within the respondent. This witness labelled the manager as a very rude man who spoke and behaved inappropriately especially in front of a six year old girl.
Respondent’s Case
The respondent operates five enterprises retailing fuel, food and other products and services. It is a single member private company and its owner is both a director and secretary of the company. Its operations’ manager oversees those outlets and has managerial control over the individual managers of those stores. During his evidence frequent references were made to the detailed terms and conditions of employment issued to the claimant. This witness learned of the claimant’s accident at work on 4 August 2011. He accepted that the company policy and procedure on Accident Occurrence was not adhered to in that no investigation was carried out into the accident nor was the Health and Safety Authority notified of that accident.
The respondent also breached its employment contract in the way it handled a reported verbal warning issued to the claimant on 15 July 2011. The claimant was not given a chance to state his case, no third party was involved, and it was not signed by all parties as required. This witness was not aware of the circumstances which led to that warning as it was issued by the store’s former manager. He described the claimant as a good employee with whom the respondent had “no issues” with.
It was company policy to contact employees who did not turn up for work without an explanation. However, in this case when the claimant ceased submitting medical certificates in September 2011 the respondent did not contact him. From September 2011 to June 2012 the claimant’s case and situation was never mentioned at any company meetings. According to this witness the claimant’s case was forgotten about until the respondent received a letter from the secretariat of the Employment Appeals Tribunal in June 2012 notifying them that the claimant was taking a case against it. As a response this witness who still regarded the claimant as an employee contacted him and enquired as to who dismissed him. The claimant was reluctant to discuss the matter saying this was now a legal matter.
This witness stated that at no time had the claimant raised any complaints or grievances with him or the respondent. No letter of resignation was received from the claimant. All issues pertaining to the claimant’s case were conducted by solicitors and this was not a factor in their treatment of him subsequent to late August 2011.
The owner who was well acquainted with claimant and his family said that at no time was a grievance or complaint made by the claimant or anyone on his behalf to the respondent. This witness was not aware of any warnings issued to the claimant but had knowledge of his accident at work by way of a solicitor’s letter. Subsequent to that letter the claimant’s case “went out of his head” until the company received written notification from a State body that the claimant was pursuing a case against the company under employment legislation.
It was this witness’s evidence that he thought the claimant was returning to work at some stage. The respondent had never been informed that he resigned. However, he had no knowledge whether the company contacted him when the medical certificates expired in September 2011. The letter from the claimant’s solicitor received in late August 2011 regarding another issue had nothing to do with this lack of contact.
Determination
As in all constructive dismissals cases the onus is primarily on the claimant to justify their decision to leave their employment. It is not for this Tribunal to comment on whether or not the claimant was badly treated by his employer during and following his accident at work on 3 august 2011. The task of this Tribunal is to make a finding as to whether the claimant was constructively dismissed by the respondent in or around September 2011. While the Tribunal fully believes the version of events as outlined by the claimant his difficulty is that, by his own account, he never communicated his complaints and grievances to the company. The respondent cannot respond to issues not put to them.
The claimant had an obligation to put his complaints to the respondent prior to terminating his employment. He did not fulfil that obligation prior to resigning and on that aspect alone he cannot succeed in this case. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 falls
Since this was a case of alleged constructive dismissal it follows that the respondent cannot be liable under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The appeal under those Acts therefore falls.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)