EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Employee - appellant PW247/2012
against the recommendation of the Rights Commissioner in the case of:
Employer - respondent
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr E. Handley
Mr N. Dowling
heard this appeal at Dublin on 24th April 2013 and 18th November 2013.
Representation:
Appellant: Mr. Michael Connellan BL instructed by Mr James Cahill, Thomas Montgomery
& Son, Solicitors, 5 Anglesea Buildings, Upper Georges Street, Dun Laoghaire, Co Dublin
Respondent: Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
The decision of the Tribunal was as follows:-
This appeal came before the Tribunal by way of the employee (the appellant) appealing against the decision of the Rights Commissioner under the Payment of Wages Act, 1991 (ref. r-118147-pw-11/RG).
Appellant’s Case:
The respondent is a supermarket chain and has branches countrywide. The appellant was employed as a Store Manager and worked in Store B. On 12th April 2011 she was invited to attend an investigation meeting on foot of certain allegations that had been made against her. She was subsequently suspended with pay.
On 14th April 2011 the appellant was unwell and attended her GP. She was certified unfit for work and furnished her employer with medical certificates on a weekly basis up until 7th June 2011. She furnished two original medical certificates to Store B and Store R by registered post each week. On 7th June she forwarded a fit to resume certificate by registered post to the respondent in Store B, Store R and also to Store P. She presumed she continued on paid suspension between 7th June and 18th July 2011.
On 18th July 2011 the appellant became aware that her wages were not being paid into her bank account. She contacted her legal adviser and requested that he contact KD, the Group Personnel Manager.
The appellant was in receipt of a letter from CC dated 15th July claiming that the respondent had not heard from the appellant since 7th June 2011 and requesting her to attend a disciplinary meeting on 22nd July 2011. The appellant attended at the respondent’s premises but refused to attend this disciplinary meeting. She told CC that she had furnished a medical certificate by registered post which certified her fit to resume work on 7th June 2011. CC said the respondent was not in receipt of this medical certificate certifying her fit to resume work but that he would chase up on the missing return to work medical certificate. On 2nd August 2011 the appellant returned to her GP and she then furnished a duplicate fit to resume certificate to the respondent.
Respondent’s Case:
CC gave evidence that he checked with several stores and that the respondent was not in receipt of the appellant’s fit to return medical certificate dated 7th June 2011 until 8th August 2011.
Determination:
The Tribunal carefully considered the evidence adduced at the hearing. It is clear to the Tribunal that there is a conflict of evidence between the parties. On 15th July 2011 the respondent wrote to the appellant indicating that their records showed that the appellant was on certified sick leave until 7th June 2011 and that they had not received any further correspondence from her. It was on 22nd July 2011 while the appellant had attended at the respondent’s premises that the respondent stated that they had not received a return to work certificate and asked the appellant to forward same without delay.
The appellant did not furnish a duplicate of the return to work certificate until 2nd August 2011.
In the circumstances, the Tribunal upsets the recommendation of the Rights Commissioner and awards the appellant €3,245.42.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)