EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Mario D'souza UD929/2012
against
Embankment Plastics Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr M. Carr
Mr T. Brady
heard this claim at Dublin on 2nd December 2013 and 11th June 2014
Representation:
Claimant: Mr Nick Hughes BCL, Business & Commecial Solicitors, 32 Lower Leeson Street, Dublin 2
Respondent: Mr Fintan Hurley B L instructed by Beatty & Healy, Solicitors, 23 Pleasants Street, Dublin 8
The determination of the Tribunal was as follows:
Claimant’s case:
The claimant told the Tribunal that the respondent, in the person of its managing director, recruited him in his home country of India to come to Ireland. He subsequently commenced work with respondent in March 2000 but soon found the reality of his tasks and remuneration was not in line with the promises he received from that manager. The claimant is a mechanical engineer by profession and had experience in that role. However upon starting with the company he found himself undertaking less skilled and more repetitive work than he expected. That work situation continued for the following years.
In 1997 the claimant sustained head injuries in a traffic incident. By 2003 he was experiencing back problems and informed the managing director that he also had problems with his feet. The claimant did not undergo a medical prior to the commencement of his employment. Due to the nature of his work he stood at machines for around forty hours a week. When he complained about his working conditions he received no beneficial assistance from his employer. In 2005 the claimant lost the middle finger on his right hand due to a workplace accident.
The claimant was unhappy with the approach taken by the respondent when he reported to it that he had grievances. The claimant felt that that his grievances were not fully and properly investigated. His letter to the managing director, dated 25 July 2011 re - the allegations were ignored. Earlier that month he was the recipient of a second written warning. The claimant maintained that the reasons given for these sanctions were inaccurate and untrue.
In late November 2011 the claimant’s doctor wrote a note outlining the claimant’s physical ailments and the restrictions it placed on his working conditions. In mid-December the claimant was examined by an occupational health professional who prepared and submitted a report on his condition. That professional concluded that the claimant should only undertake tasks at work that did not aggravate his back pain. Her opinion that an ergonomic assessment be conducted never materialised. Further investigation of his back pains was required. On 21 December 2011, the night shift manager wrote a memo stating he sent the claimant home as he refused to work that shift. The claimant rebutted that statement on the grounds of health and safety.
According to the claimant he failed to return back to work on 2 January 2012 due to a lapse in concentration on dates and times. As a result of that lapse, the second written warning issued to him, which had been suspended, was re-instated. During a disciplinary hearing on 9 January 2012 the claimant was told that he could not return to work until his back pain condition was attended to. On 3 February the claimant’s doctor wrote a note confirming that the claimant was unfit for work from 9 January due to back pain. In a letter dated the same day his solicitor told the respondent that his client was appealing that second written warning and called upon the respondent to return the claimant to work in an appropriate role.
The legal teams for both parties exchanged correspondence on this case from early February. On 27 April 2012 the claimant’s solicitor wrote and effectively terminated the employment of his client. That involuntary resignation was forced on his client through the behaviour and attitude of the respondent.
Respondent’s case:
BA for the respondent told the Tribunal that the claimant was a competent employee. The respondent makes small plastic components. No major work issues occurred, the claimant’s complaints from July were investigated and the parties exonerated. During his shift on 23rd November 2011 he complained of discomfort in his back and looked for re-assignment to another area. He was asked to clock out and get a doctor’s note regarding his back. This was the first time that the respondent was aware of the claimants back problems even though he had completed a medical and fitness questionnaire in 2007.
His doctor advised the respondent that his back problems may have arisen from a car accident in 1996, pre-dating his employment and advising that further investigation would be required. Once further tests were undertaken it was recommended that ergonomic assessments would be undertaken by the respondent. The respondent did its best to facilitate the claimant but on 21st December the claimant was again sent home due to his back pain.
The respondent closed for business over the Christmas period and re-opened on 2nd January 2012.
The claimant failed to return on that day or make any contact with the respondent. On his return on 5th January BA asked why he had not returned, they also discussed his back problems. It appeared that the claimant couldn’t do the lightest of tasks. BA advised the claimant to have orthopaedic assessments done, (which the respondent was willing to pay for) as the respondent could not risk his safety.
A further meeting was arranged for the 9th January, it was a disciplinary meeting for his non return to work and the on-going back issues. For his non-return to work the claimants second written warning was reinstated and he was asked why he had not highlighted his back problems on his 2007 medical report. He had no reply to this question. He was told he could not return to work until his back problems had been fully investigated and it was understood his referral for orthopaedic tests would shed some light on the problems and everybody could move forward.
The respondent received a letter from the claimant’s solicitor on February 3rd appealing the written warning and claiming that the claimant was injured at work. The respondent found it necessary to engage their own legal practitioner at this stage to advise that the claimant’s job was still open to him, but that he needed to be have a report done by an occupational health physician and be certified as “fit to return to work”. They also said that they would cover any shortfall in the cost of attending the physician.
The claimant remained absent from work without a medical certificate and on 11th April was advised by the respondents solicitor that if no medical certification was received within 21 days, the claimant would be deemed to have terminated his employment. His legal representative requested his P45 on 27th April and it was furnished on 11th May.
Determination:
The Tribunal found on the facts of this case, that it was a case of constructive dismissal. The Tribunal accepts that the claimant had issues with the respondent and that he was having problems with his back. However, he failed to adequately deal with these problems. He did not follow the course of action as laid out and medically advised even though financial assistance was offered by the respondent to do this. The respondent only learned for the first time that he was having problems with his back on the November 2011, despite the fact that the claim had completed a medical and fitness questionnaire in 2007. Later he left and did not return to work and did not supply medical certificates as requested.
Having carefully considered all the evidence adduced in this case both oral and in writing, and having carefully observed the demeanour of the parties, during this case, the Tribunal finds that the claimant did not establish the onus of proof in order to prove his case.
Accordingly, the claim fails. The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)