UD131/2014, MN911/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Mary Adeniyi             – claimant                                                                            UD131/2014

                                                                                                                                  MN911/2012

Against

Tesco Ireland Limited

- 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 N. O'Carroll-Kelly B.L

Members:     Mr. D. Winston

                    Mr C. Ryan

heard this claim at Dublin on 8th May 2014

Representation:

Claimant(s) : Mr Conor Quinn, John J Quinn & Co., Solicitors, Earl Street, Longford

Respondent(s) : Mr Eamonn McCoy, IR/HR Executive, IBEC,

                         Confederation House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

Summary of Evidence

The Tribunal heard evidence from the personnel manager at the time of the claimant’s dismissal. The witness commenced employment at the store where the claimant was employed in December 2011. The claimant was absent long term at that time with no up to date sick certificates on record. Although she did not access the claimant’s personnel file she wrote to the claimant inviting her to a welfare meeting on the 23 March 2012. When she did not receive a response she sent a second letter dated 12 April 2012. The claimant telephoned on the 17 April 2012 and explained that she was residing in the UK and gave her the address. The witness sought sick certificates but never received them. The claimant indicated to her that she was receiving treatment for her illness and suggested she be made redundant. It was explained to the claimant that this was not a redundancy situation. At that stage of the conversation the claimant referred to her illness having been caused by dust in her work area. A follow up letter including the respondent’s sickness policy document was issued by the personnel manager dated the 10 May 2012 which was opened to the Tribunal. The claimant was absent from work eighteen months at that stage. The respondent’s policy is to maintain contact with employees absent for long periods and offer any support services which would help the employee to return to work. The claimant failed to respond or engage in any way. The personnel manager never received the letter dated 21 May 2012 from the claimant and her first sight of the letter was at the hearing on the 23 January 2014. The witness consulted the store manager requesting a decision on what further steps to take. The store manager made the decision to dismiss the claimant. The claimant was dismissed by letter dated 19 July 2012. The witness accepted that the letter did not refer to any appeal process.

The store manager was updated on the claimant’s absence each week by the personnel manager. She did not speak with the claimant during the period March 2012 to the dismissal but recalled hearing the personnel manager explain to the claimant on the telephone that this was not a redundancy situation. She took the decision to dismiss the claimant after every opportunity was given to her to furnish them with medical certificates. The offer of an appeal was not offered to the claimant as there was no disciplinary in this case. The claimant was considered awol and that dismissal procedure was followed.

The claimant took up employment with the respondent in 2004 in the role of general assistant at first and after six weeks as supervisor. In October 2010 she first became ill. In January 2011 she was diagnosed with lung cancer. Her husband and a friend and work colleague submitted her medical certificates to the respondent. She attended a welfare meeting with the then store manager in July 2011 and informed her of her illness and further treatments which required her to travel to the UK. On learning of the letter dated the 23 March 2011 she telephoned the personnel manager and explained that she was too weak to attend any meeting. The claimant suggested that if the meeting could be arranged at the respondent’s UK store she would attend but this was never arranged. Upon receiving the letter dated the 10 May 2012 she wrote to the respondent at the head office address as the letters she received were on the headed paper of head office. She enclosed medical certificates which were supplied by her UK GP. At that time the claimant believed that the initial letter from the hospital clearly set out her medical condition.

The claimant denied ever stating that her illness was caused by her work environment and denied seeking redundancy from the respondent. She had always intended to return to work and was shocked when she was dismissed.

The claimant’s husband gave evidence to the Tribunal confirming he had submitted medical certificates on behalf of his wife for the period November and December 2010. For the period January 2011 to July 2011 he or the claimant’s friend submitted the certificates. He attended the welfare meeting in July 2011 with his wife.

Determination

The Tribunal have carefully considered the evidence adduced and the documentation submitted during the hearing.

It would seem from the evidence that the claimant satisfied her obligation under the company policy to keep the respondent informed of her health status. The respondent’s poor in house management of post received by the claimant can’t place an extra burden on the claimant to ensure it arrived on the desk of the appropriate person. The letter the claimant received from the respondent, dated on the 10^th May, 2012 was from head office. She replied to head office by letter dated the 21^st May, 2012 enclosing an up to date medical certificate. She has proof of postage in documentary form. Furthermore, evidence was adduced that the claimant’s friend and husband handed in her sick certificates with some regularity, but due to the fact that the respondent had misplaced or lost her personnel file, those certificates were not available for the current personnel manager to peruse. That is not something that was within the claimant’s knowledge at the time. If the respondent was missing information from the claimant’s file, it was their responsibility to ensure that it was brought up to date. At no stage did the respondent write to the claimant stating that her personnel file had been compromised and asking if she had produced sick certificates in the past.

The Tribunal find that the respondent’s disciplinary procedures were flawed to the extent that the claimant was prejudiced by same. The respondent’s main failing was that it did not afford the claimant a right of appeal from their decision to terminate her employment.

In all the circumstances the Tribunal find that the claimant was unfairly dismissed however the Tribunal find that the claimant has failed in her legal obligation to mitigate her loss primarily due to her illness.

The Tribunal award the claimant four weeks pay amounting to € 1800.00 under the Unfair Dismissals Acts, 1977 to 2007.

The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn by the claimant.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)