EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Mustafa Gulgen UD790/2013
MN393/2013
against
Marks & Spencer (Ireland) Limited
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 P. McGrath B.L.
Members: Mr F. Moloney
Mr S. O'Donnell
heard this claim at Dublin on 24th October 2014
Representation:
_______________
Claimant(s): Mr Gareth Hayden BL instructed by:
Mr Sean Ormonde
Sean Ormonde & Co, Solicitors
Suite 19, The Atrium, Canada Street, Waterford
Respondent(s): Ms Mairead Crosby
IBEC
Gardner House, Bank Place, Charlotte Quay, Limerick
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
The HR Manager with responsibility for the claimant’s role gave evidence. The claimant was on sick leave when he commenced the role. The claimant commenced his first period of sick leave on 10th August 2011. The company policy provided for two months’ paid sick leave. Thereafter the claimant claimed State illness benefit. The witness organised a company medical assessment for the claimant to attend in February 2012. There was no issue with the medical assessment itself, however, the clinic itself had moved to an address 2km away and the HR Manager sent the claimant to the old address. The claimant took a taxi to the new address but failed to get a receipt for the journey. The HR Manager refused to reimburse the claimant the €19.35 claimed for this trip as it was against company policy to pay expenses without a receipt. This was not resolved to the claimant’s satisfaction and became an issue again during his second period of sick leave when he refused to attend the company doctor in the absence of being reimbursed for the taxi journey.
The claimant’s first period of sick leave began the day after he had attended an investigation meeting regarding his work standards. The meeting was adjourned as the claimant felt ill. The claimant returned from sick leave on 6th April 2012. The HR Manager scheduled the investigation meeting to resume on that day as he had to finish that process before moving on. The purpose of the meeting was to decide if the claimant had a disciplinary case to answer regarding his work standards and it was subsequently decided to move to a disciplinary phase. The disciplinary phase had not begun by the time the claimant went on sick leave again in May 2012 having suffered a relapse of his stress and anxiety condition after returning to work.
The HR Manager met the claimant on 3rd August 2012. The claimant agreed to attend a company doctor again. However he later wrote to the HR Manager to state that he would not attend the doctor unless he was reimbursed for the taxi fare from the last visit. The HR Manager maintained his position regarding the company’s expenses policy. He arranged the next doctor’s appointment in a city centre location so the claimant could walk and not incur any cost to him. The claimant failed to attend the appointment and a second appointment was arranged. The claimant failed to attend the second appointment on 22nd November 2012. The claimant wrote later to say he had not enough notice of the appointment. The HR Manager disputed that he failed to answer phone calls from the claimant. If he missed calls he always returned them.
The HR Manager wrote to the claimant on 26th November 2012 to request that the claimant phone him by 4pm on Friday 30th November 2012 to confirm a return to work date and that a failure to do so would result in the HR Manager assuming that the claimant was not returning. He did not receive a phone call or any reply by the assigned time. The HR Manager wrote again on 30th November 2012 and requested that the claimant contact him by Friday 7th November 2012 and again stated that a failure to do so would result in the HR Manager assuming that the claimant was not returning. The HR Manager waited two weeks for the claimant to contact him but heard nothing. He wrote to the claimant on 20th December 2012 and dismissed him as of 21st December 2012. The letter stated that the claimant had “repeatedly refused to attend the medical assessments that the Company has requested you attend and have frustrated all efforts by the Company to discuss your current situation.” The claimant wrote to him on 4th January 2012 but as the dismissal was under appeal he did not respond.
A HR Manager with responsibility for four different stores heard the claimant’s appeal. The claimant’s grounds for appeal were
Refusal to attend medical assessment
The outstanding taxi fare
1 day’s notice of dismissal.
That he had not frustrated – had attended meetings in January and August.
Regarding the taxi fare the witness reiterated the company’s expenses policy. As a section manager the claimant would have been familiar with the policy as he would have signed expenses claims for others. The lack of response to the HR Manager’s letters from the claimant was unusual. The claimant had issues receiving letters before but he clarified his new address in August 2012. He asked for post to be sent to him by ordinary and registered post. The claimant said he had been in Galway during December. The witness deemed the sanction to be reasonable under the ‘Management of Attendance Policy’. The claimant was dismissed for frustration of contract.
During cross-examination the witness initially said that the claimant’s length of sick leave was not necessarily a factor in his dismissal. Dismissal under the Management of Attendance Policy was not a disciplinary sanction. The dismissal was not because of the lack of attendance at the medical appointments but rather that he had been on sick leave for a total of 16 months and the company did not know when he would return. She believed that was sufficient to dismiss the claimant. She could not answer why this was not detailed in her letter to the claimant.
Summary of Claimant’s Case:
The claimant’s employment began in 2007. He had difficulties in 2011 and commenced sick leave. In January 2012 he attended a medical appointment with the company doctor. When he was informed that he had gone to the wrong location he hailed a taxi as he was not familiar with the area. He was flustered and forgot to get a receipt for the journey which he contended cost €19.35. He had three children and was living on social welfare. It was a lot of money to him. He was suffering with mental health issues and was stressed at the time. He expected more understanding from the company.
He had no difficulty attending medical appointments for the company as long as he received the payment for the taxi. He did not recall receiving the 30th November 2012 letter from the HR Manager. If he had he would have replied as previously. He received a different letter at that time regarding a pay claim he had previously lodged. Letters sometimes went missing in the apartment block he was living in and sometimes he visited his in-laws in Galway. He had unsuccessfully tried to call the HR Manager and decided to keep in touch in writing.
He learned of his dismissal from the letter of 20th December 2012. He did not expect to be dismissed for failing to attend the doctor’s appointments. He gave evidence of his loss.
The claimant was cross-examined. At the meeting on 3rd August 2012 he had agreed to attend the company. He later wrote on 21st August 2012 to state that he would not attend unless he was reimbursed for the taxi journey. Regarding the letter of 26th November 2012 the claimant said he would not have seen it if he was in Galway. He could not recall when he went to Galway. He was still submitting sick certificates. The claimant and his family returned to his native Turkey after being unsuccessful in finding alternative work.
At the end of the hearing the claimant was instructed to submit a statement from the Department of Social Protection within six weeks detailing the type of payment he had been claiming from the time of his dismissal to the time of his departure from Ireland in June 2013. The claimant failed to submit this document.
Determination:
The Tribunal has carefully considered the evidence adduced. The claimant was a department manager and had worked with the respondent company since 2007. There was a protracted history outlined by both parties but the respondent ultimately terminated the claimant’s employment for frustration of contract in circumstances where the claimant had been out on sick leave with no foreseeable return to work date being disclosed and in fact an unacceptable level of difficulty in contacting the claimant playing a major role in the ultimate decision to dismiss.
An extraordinary emphasis was placed on the employer’s refusal to reimburse a taxi fare which the employee had accrued in circumstances that were not his fault and in which it was not unreasonable that he would expect his employer to discharge immediately. The Tribunal cannot understand or accept that the respondent company should take the stand that it did in this regard. The taxi fare should have been discharged.
Unfortunately for both parties the failure to reimburse became a larger obstacle between the parties than it should ever have been allowed to become. Whilst out on sick the claimant started to refuse to attend medical assessments organised by his employer on the basis of not having received the €20.00 taxi fare he was due. The Tribunal accepts that this stand became unreasonable and the respondent has every entitlement to assess its employee for the purpose of organising its own back to work policy.
The Tribunal heard evidence of missed letters and unreturned phone calls all of which becomes difficult to assess and leads to the irrefutable conclusion that the relationship between the parties has broken down.
Ultimately the respondent notifies the claimant that his employment is being terminated for frustration of contract. The respondent relies on the failure of the claimant to make himself available to discuss his current situation as sufficient reason to justify their decision.
On balance the Tribunal finds the decision to terminate the claimant’s employment unfair but only insofar as they created an unacceptable level of bad feeling with the claimant in refusing to reimburse his taxi fare.
In assessing loss the Tribunal has to take into account the contribution the claimant made to his own termination of contract and must further take into account the absence of documentary evidence from the Department of Social Protection regarding the nature and type of benefit the claimant was on. The Tribunal awards the claimant four weeks’ compensation amounting to €3,646.16 (three thousand six hundred and forty-six euro sixteen cent) under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, is dismissed as there was no evidence was adduced that it was not paid.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)