EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Cunningham UD1666/2013
-Claimant
against
Premco Distributors Limited
-Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. R. Maguire, B.L.
Members: Mr. J. Horan
Mr. J. Flannery
heard this claim at Dublin on 16th February 2015
Representation:
Claimant: Mr. Sharbee Morrin BL instructed by Ms Oonagh McCormack, O'Connor McCormack, Solicitors, 16 South Main Street, Naas, Co Kildare
Respondent: Mr. J. Finan director
Background:
The Respondent is a car parts distributor. The Claimant worked as a store man in the Respondent company. The Dismissal in this case is in dispute.
The Tribunal heard evidence from the Claimant and from a director (also known as JF) of the Respondent. On or about the 31st October 2013 the Respondent found out that the courier company that they used went out of business or in any event could not provide the Respondent with a service. This caused a difficulty as it was crucial that they deliver the products to their customers. JF tried to organise any kind of transport to have the products delivered the next day. He was in contact with another business acquaintance (aka Mr. F) who he had asked to meet as they both might be able to find a solution.
JF was in the building trying to organise a solution and it transpired that Mr. F had at some stage visited the premises and had asked for him. F was told that he was at a meeting so F left. He found this out because F had phoned him.
He went to the warehouse to find out who told F that he was at a meeting. The Claimant was in the warehouse as was the warehouse manager. He asked who had told F that he was at a meeting and the Claimant accepted he did. JF in evidence accepted that there was “an altercation” (verbal).
It was common case that the situation was fraught. The Claimant in evidence stated that he left the premises. The Claimant left and afterwards he seemed to contact the Respondent by way of a senior person in the Respondent.
After the Claimant left he spoke on the phone to the warehouse manager who told him that JF told him and others that if the Claimant was to return to the premises he was not to be allowed to gain entry. The Tribunal heard evidence from the warehouse manager to that effect. When JF gave evidence to the Tribunal he stated that he could not recall if he had said this or gave that instruction that the Claimant was not to be allowed onto the premises.
The Tribunal heard evidence that the Claimant submitted a sick certificate dated 01st November 2013, to the accounts manager. The Claimant gave evidence that he subsequently submitted a certificate to say he was fit to return to work. However JF disputed that a fit to return to work cert was submitted to the Respondent company. No certificate of return to work was opened or provided to the Tribunal.
Determination:
The Tribunal unanimously determines that the Claimant’s case under the Unfair Dismissals Acts, 1977 to 2007 succeeds. It was common case that there was a sick certificate covering up to the beginning of December but the Tribunal finds that no further sick certificates were submitted after that date. Even if the Claimant’s fitness to return to work certificate was not received by the Respondent, it was incumbent on JF as an employer to make an effort to contact the employee to clarify the situation, given that it had stated that the Claimant was not to return to work. In the absence of such efforts, the Tribunal finds that the Claimant was unfairly dismissed.
The Tribunal determines that compensation is that most appropriate remedy in this case and awards the Claimant the sum of €42, 640.00, as is just and equitable having regard to all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)