UD1521/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

Gabriel Alcantara                                                                                          UD1521/2013

-Claimant              

against

Tesco Ireland Limited

-Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. C.  Corcoran B.L.

Members:       Mr. A.  O'Mara

Mr. F. Barry

heard this claim at Dublin on 15th January 2015

                                           and 19th March 2015

Representation:

Claimant:  Mr. Richard Grogan, Richard Grogan & Associates,

                 Solicitors, 16 & 17 College Green, Dublin 2

Respondent:  Mr.  Tiernan Doherty IBEC, Confederation house

          84/86 Lower Baggot St Dublin 2

Background:

The respondent representative contends that the case is one whereby the Claimant dismissed himself.  The Claimant ceased communicating with the respondent. The Claimant representative contends that the Claimant was on long term sick leave and was giving his sick certificates to the respondent and that there was a termination of employment.

Respondent’s case:

The Tribunal heard evidence from BH the HR manager for the respondent store.  He worked from the Donabate distribution centre.   He had no direct contact with employees excepting with the Claimant as he was on long term sick leave and to facilitate his return to work.  The Claimant was on sick leave because he had a domestic accident in which he broke his hand.  The Claimant worked as a general operative. The bulk of the G.O. work involves orders assembly and driving a low level order picker (LLOP).   The use of hands is vital to the work.

The witness explained that if an employee is out sick for more than three days they meet the employee to see when they are likely to return and if an employee is out for more than four weeks they “go into a different intervention”.    The Claimant went to the company doctor.  They offered the Claimant a medical leave of absence.  The witness explained that the Claimant was concerned that he would lose his social welfare allowances (for whatever reasons) and he (the witness) contacted the department of social protection and they told him that as long as the Claimant produced his medical certs he would not lose his allowance.  The Claimant took leave of absence.  At the end of the period of absence the respondent required the Claimant to contact them but he did not.  Hr wrote to the Claimant by ordinary and registered post on 06^th March 2013.   The Claimant did eventually contact him and he did speak to the Claimant.   The Claimant confirmed that he had not had an operation on his hand.  During a conversion with the Claimant because of the way the conversation was going he asked the Claimant if he was going to resign and the Claimant told him that he was not because he would lose his SW allowance.  The Claimant said to him “could you not just terminate” his contract and he told him that he could not because he had no basis for doing that. 

In cross exam the witness told the Tribunal that the Claimant told him that he did not want to have an operation (on his hand) and the Claimant told him that he did not want to return to work.

The representative for the Claimant attempted to open a medical report and this was objected to by the Claimant representative and there was some discussion and direction from the Chair of the Tribunal.  The representative for the Claimant asked for MS CK to be present on the next day of hearing, also documents required and medical certificates particularly a return to work certificate.  Witnesses to be present and documents also.

The Tribunal and parties agreed a resumed hearing date of 19^th March 2105 (ML).

At the conclusion the representative for the respondent told the Tribunal that Ms C Kennedy would attend the next hearing.

Giving sworn testimony, CK said that she was the occupational health nurse manager who dealt with the claimant’s absence. She met him on 2 April 2013. He had previously had an accident in September 2012. She was assessing him. She would get a referral and would introduce herself to the relevant employee. She would get him to sign for assessment

CK told the Tribunal that the claimant was conversant in English and that she thought he could understand. She had no issue with his understanding. Her job was to produce a return to work programme.

Under cross-examination CK said that the claimant had said that he did not anticipate a return to work. The respondent had a doctor-to-doctor form. CK said that the respondent had evidence that it was sent. It was not normal that a doctor would not respond but, CK said, that was an employee responsibility. There was an onus on an employee to follow up. That would be part of the consultation.

Questioned by the Tribunal, CK said that Donabate was the claimant’s area and that she saw other people also. The claimant said that he did not anticipate returning to work for the respondent. She met him in September 2012 and April 2013. She was assessing his fitness to return. In her opinion he could work but was not willing to engage in a return to work with the respondent. His injury had been to his left hand. She felt that he should return to work with the respondent. He had previously been fit to do sedentary work.

Claimant’s Case:

Giving sworn testimony with the aid of an interpreter, the claimant denied that he had refused to co-operate with the respondent’s return to work programme and denied that he had said that he did not anticipate returning to work with the respondent. He said that he had given medical certs to BH as manager for the respondent. The claimant asserted that he had gone to the respondent’s HR and delivered medical certification but his employment ended when he was given his P45 indicating that he was dismissed. He had never been asked to a disciplinary meeting or told that he could bring in someone with him or told that he could appeal.

Referred to correspondence, the claimant initially said that he had got none of it but, asked by his representative how he knew to go to his medical examination, he replied that he might have got one letter.

Asked how he understood letters, the claimant replied that his daughter translated a little but that he only knew what she translated. He denied ever having seen the 27 June 2013 letter from BH in which the respondent assumed that he did not intend to return to work and that he had terminated his employment. He said that he might have got a letter on 27 March 2013 about an occupational health specialist appointment.

The claimant said that he did meet an occupational health nurse but that he could not recall the English used. He was asked about his injured hand. The claimant could not recall getting letters from the respondent but the claimant’s representative accepted that letters had been given.

The claimant sought new employment but did not obtain it. He furnished relevant documentation. He wanted to be reinstated. He had no history of problems when working for the respondent.

Under cross-examination, the claimant spoke of meeting CK. He did not understand all that was said to him but did not think of seeking an interpreter. He said that he could say “yes” or “no” but he could not fully understand. He did not accept the contention that he had good English. He could not recall a June 2013 conversation with BH and said that it was incorrect that they had spoken on the phone. He received a P45. Asked if he had contested it, he replied that he must have done and that he spoke to a friend who introduced him to his representative.

It was put to the claimant that he had not fought for his job. He replied that he thought he did but that he had not known the procedure. The claimant denied having said that he did not anticipate going back to work for the respondent.

Asked (in questions from the Tribunal) how he had got his P45, the claimant said that he had gone to the respondent with a sick cert and got his P45 with which he received a letter. Regarding the date, he said that he could not recall if it had been the 27^th or, more likely, the 28^th.

Asked how he had communicated with his manager when working for the respondent, the claimant replied that he would find out how to do his day-to day work. Mostly it was by showing. He disagreed that his English had been insufficient. He only had difficulty with BH after he got sick. It had been his first employment.

Asked if he had understood when conversing with CK, the claimant said no but acknowledged that he had not sought an interpreter at that time. He had been unfit from mid-June 2013.

In a closing statement the claimant’s representative acknowledged that the claimant had lacked English but said that the claimant had worked with no difficulty. There had been no disciplinary issue. The claimant was not responsible and did not seek an interpreter. The respondent was a big employer which had agreed dismissal procedures with a major trade union (here known as SI). The claimant had been out due to injury. There was an issue as to credibility. The claimant’s representative had asked about whether the word “anticipate” was a word that the claimant would use. The claimant ended up getting dismissed but should have, at least, had a disciplinary hearing. A doctor-to-doctor report had been requested. It was submitted that the respondent should have written about that but it was not done.

When the Tribunal asked what work the claimant had done for the respondent the respondent replied that the claimant had been a general operative in a very big warehouse driving forklifts and picking product. There were some six hundred and fifty people in the depot.

The respondent’s representative submitted that the claimant had no credibility. CK had said that the claimant had fully understood. The respondent’s representative’s position was that the claimant had better understanding than the Tribunal had been led to believe. It was submitted that the respondent had two credible witnesses and that the claimant had abandoned his job. The respondent had a paper trail. The respondent’s position was that the claimant did not comply at all, that BH had been very fair to the claimant and that the claimant had abandoned his employment.

Determination:

When the Tribunal considered the evidence adduced it was felt that everything had been done to facilitate the claimant, that CK was not lying and that the claimant had not wanted to return to work.   Although the respondent was not slow in acting it had grounds to do so. The claimant had got plenty of chances. There was a clear disciplinary procedure. The Tribunal was not convinced that the claimant’s English was so poor.

It was acknowledged that there was a higher responsibility on the respondent and there could have been a better use of procedures on the Respondent’s part.  However, on balance, it was felt that since the Claimant was not replying to correspondence, and not making himself available, that this outweighed any lack of procedures. It was a fair dismissal based essentially on the evidence as adduced by CK and BH.

The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)