EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee - appellant RP788/2012
against
Employer - respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Thurles on 4th December 2013
Representation:
Appellant: In person
Respondent: Mr. Donal Smyth, Patrick F. Treacy & Co., Solicitors, 29 Pearse Street,
Nenagh, Co. Tipperary
Background:
It was the respondent’s case that there was no termination of the appellant’s employment. The contract of employment was frustrated by virtue of the fact that the appellant was unable to fulfil his duties due to an injury. The appellant suffered this injury a number of years previously while serving in the Polish army during 2001. However, in 2011 the injury began to worsen and he was advised by his doctor that he was only fit for light duties. Following a request from social welfare, the respondent wrote stating, inter alia, that the company was not in a position to accommodate the appellant with alternative suitable duties.
The appellant accepted that his injury became progressively worse to the point where he had an operation in 2011. Unfortunately, the operation was not a success and he needed to use constant medication. It was accepted by the appellant that he was unable to carry out the physical heavy duties associated with his role as an order picker. In addition he was no longer able to operate a forklift. The respondent company did not have an alternative position available.
Determination:
The Tribunal is satisfied from the evidence that the appellant’s employment did not come to an end due to a redundancy situation. It was clear that the appellant was no longer able capable of performing the duties of the role for which he was employed. Unfortunately, in these circumstances there is no dismissal and the claimant does not qualify for a redundancy payment. The appeal under the Redundancy Payments Acts, 1967 to 2007, is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)