EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Piotr Moczyk UD1739/2012
Claimant UD1746/2012
Against
Tesco Ireland Limited
Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes BL
Members: Mr E. Handley
Mr P. Trehy
heard this claim at Dublin on 17th February 2014
Representation:
____________
Claimant(s): Mr. Diarmuid Murphy BL instructed by Mr Donal Holohan,
Maguire McClafferty, Solicitors, 8 Ontario Terrace, Portobello Bridge, Dublin 6
Respondent(s): Mr. Eamonn McCoy, IBEC Confederation House, 84/86 Lower Baggot Street,
Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case
The HR Director BH outlined that he was responsible for the distribution centre. He outlined the operations of the centre. The centre remains open day and night except for Christmas day. The claimant was employed as a general operative. He dismissed the claimant.
The claimant was absent long term for twelve months and was declared unfit to work. The claimant could undertake light duties but the respondent could not facilitate this. The Occupational Health Advisor issued a health referral report to the HR manager on the 10 January 2012. The claimant returned to work on 7 November 2011 and worked every second day for three weeks but as he was on strong painkillers it was felt that he was unable to carry out his role and was sent home by management. Employees are expected to remain in contact with the respondent when absent for long periods of time and the respondent expected employees to be available for meetings.
He expected the claimant to make some attempt to contact him and he also tried to contact the claimant. By letter dated 9 May 2012 to the claimant he outlined as follows:
“Given that you have been absent from work due to illness, for a prolonged period in the last twelve months, we are now in a situation where if you do not return to work within a reasonable timeframe we will have to review your position.
Accordingly please contact the site at the number below by Tuesday 15th May 2012 or we will have to assume that it is your intention to terminate your contract with the company.”
He sent a letter to the claimant on the 16 May 2012 and advised him that his employment will terminate on the 28th May 2012. He was advised at that if at some stage in the future he wished to return to work with the respondent it would be happy to consider an application.
The second witness for the respondent, PD told the Tribunal he was the sector manager in the centre. He attended a Welcome Back Meeting with the claimant on the 7 November 2011. The claimant had been absent for over a year on sick leave. The purpose of the meeting was to ensure that the claimant received training before returning to the working environment and that he was up to speed. The claimant could return on a modified basis on a day on and a day off. He met the claimant on the 21 November 2011. The claimant told him that he felt drowsy sometimes due to the medication that he was taking. He met the claimant on the 1 December 2011 as he needed clarity and an assurance that the medication the claimant was taking was not affecting his role.
The claimant reported for work on the 3 December 2011. He asked the claimant if he had a fit to return certificate from his doctor. The claimant showed him a letter from his doctor that his back pain could limit his ability to lift and he was on pain killers. He told the claimant that he had to send him home. He was not involved in the decision to dismiss the claimant.
The third witness for the respondent CG told the Tribunal she is now training manager in the centre. She met the claimant on a couple of occasions. She attended a meeting with the claimant on the 8 February 2011 to establish if he would be able to return to work in the near future. The claimant did not know at that stage. The claimant could not attend a meeting on the 31 January 2011 as he could not stand up in work. The respondent could not leave the claimant’s job open indefinitely. She had no involvement in the dismissal of the claimant.
Claimant’s Case
It was indicated that the claimant did not intend to give evidence in relation to the substantive matter and an application for a non-suit was made. In the event that, on the non-suit application, the Tribunal were to make a finding of unfair dismissal, the claimant gave evidence of loss. He feels that he is fit for work but he is not sure if he can undertake heavy lifting duties. He did not reapply to the respondent for a job. He did not consider making an appeal to the respondent as he thought once he was dismissed that was the end of the matter. He stated that he has been fully fit to return to work since September 2012.
Determination
This is a case where the claimant had been absent from work for a considerable period of time. He had sustained a back injury in October 2010. In October 2011 he returned to work on a modified work programme. This involved him working on a “day-on day-off” basis for a number of weeks so as to ease his return to work. Shortly thereafter he reported to his manager that he was on medication but could not say what it was. There was a concern that it could cause drowsiness and he was sent home, as a safety precaution, and asked to provide a certificate from his doctor to confirm that the medication would not interfere with his ability to safely use workplace equipment. This was never provided. Thereafter the claimant indicated that he was only available for light work and was not available for his full range of duties. He was reassessed by an occupational health specialist on the respondent’s behalf and was referred for a further MRI scan. He failed to attend for the scan on three occasions and failed to attend an occupational health review on a further occasion. On foot of the scan, when it was eventually done, it was the opinion of the respondent’s occupational health adviser that the claimant was fit to return to work. Thereafter BH, the respondent’s HR manager, attempted to contact the claimant on a number of occasions without success. BH ultimately wrote to the claimant on 9th May 2012 and concluded by saying:
“Accordingly please contact the site at the number below by Tuesday 15th May 2012 or we will have to assume that it is your intention to terminate your contract with the company.”
A mobile telephone number was provided so that the claimant could contact BH. However, the claimant did not contact him. BH wrote again on 16th May 2012. The letter included the following:
“However despite recent attempts by post and phone to contact you we have not been able to do so. Your continued failure to respond to our attempts to contact you has made it impossible for us to hold your position open any longer. Accordingly, as advised in my letter of 9th May 2012 we must now assume that you do not intend to return to work in the distribution centre and that you have terminated your employment with the company. Your termination will take place in line with the Minimum Notice legislation, i.e. 28th May 2012.”
This letter appears to have crossed with a letter from the claimant dated 14th May 2012 in which the claimant disagreed with the results of the MRI scan and stated that he was only fit for light work. He inquired whether a letter from his GP in relation to light work would satisfy the respondent. It is not clear why the claimant chose to write a letter that was unlikely to have been received before the respondent’s deadline rather than telephoning as he had been requested. BH replied on 30th May and said that the respondent had had to assume that the claimant did not intend to return to work and that, in any event, they could not, due to the nature of the work, offer light duties.
The claimant’s solicitor then wrote a letter dated 14th June 2012 in which, inter alia, it was indicated that the claimant wished to appeal. The Tribunal was told that this appeal was not entertained as it was made outside the five working days allowed in the company’s procedures. Further, the letter confirmed that the claimant was only available for light duties.
It is clear that the respondent attempted to manage the claimant’s reintegration into its workforce after his back injury. It was the advice of the respondent’s occupational health specialist that the claimant was fit for work. The claimant proffered no medical opinion to the contrary but appears to have simply failed to engage with his employer. Despite efforts by both post and telephone, his employer was unable to contact him. Such behaviour would certainly give grounds for disciplinary action to be taken against an employee. However, rather than commence the disciplinary process, the respondent appears to have constructed a device whereby they assumed the claimant’s resignation thereby by-passing the disciplinary process altogether. In doing so, the respondent rendered this dismissal unfair. The Tribunal is satisfied that it was a dismissal rather than a resignation. While the appeal was initiated outside the time limit set out in the respondent’s procedures, it would have been better in the circumstances to have allowed it to proceed.
While the dismissal was unfair from a procedural viewpoint, the Tribunal must consider whether and to what degree the conduct of the claimant contributed to his dismissal. For the reasons set out above the Tribunal is satisfied that the claimant’s contribution to his dismissal was substantial. This is not a case where the procedural unfairness was of a minor or insignificant nature and the Tribunal must therefore award compensation. Taking account of the claimant’s contribution the Tribunal is satisfied that compensation in the amount of €1,000.00 is just and equitable in the circumstances and makes this award pursuant to the provisions of the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)