EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Blazej Szmatola RP34/2013
against
Temple Recruitment T/A Mk Human Resources Trading
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr A. O'Mara
Mr F. Keoghan
heard this appeal at Dublin on 21st March 2014
Representation:
_______________
Appellant: Mr Marcin Szulc, Rostra Solicitors, 78 Benburb Street,
Smithfield, Dublin 7
Respondent: James H Murphy & Son, Solicitors, 17 Francis Street,
Dundalk, Co Louth
Ms Geraldine Doherty, Temple Recruitment, Crescent
Building, Northwood, Santry, Dublin 9
The decision of the Tribunal was as follows:-
Determination:
The Tribunal have considered all of the evidence together with the documentation submitted.
The claimant was injured at work in September, 2011. Following the injury he went on certified sick leave until the 24th January, 2012. Thereafter he was certified fit for work subject to the condition that he be advised “against heavy lifting”. Evidence was given that the claimant’s contract would not have come to an end in October, 2011 had he been fit for work.
The claimant accepted that he was offered the “ winter schedule” with RA but he couldn’t accept that offer due to his injury. The Tribunal note that the claimant’s position is still available and has been filled by a third party. The Tribunal also note that the claimant stated in his letter dated the 31st July, 2013 the following:-
“ As you know, because of the injury to my lower back sustained during work at Dublin Airport on 18th September, 201I cannot perform lifting”
Based on the oral evidence and documentary evidence before the Tribunal, the Tribunal can only conclude that the claimant, to date, still cannot carry out his contractual duties, due to his back injury. The claimant was offered three alternative positions. The “winter schedule” at RA, passenger service agent at IF and a clerical role with a government department. The claimant did not accept the offers in relation to any of these positions for various reasons.
The Tribunal can find no evidence to support the claimant’s case that a redundancy situation existed within the respondent company at the material time or at all. The claimant’s contract of employment is still in existence as is the position at RA.
The claimant’s claim under the Redundancy Payments Acts fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)