RP273/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                        CASE NO.

Irena Paczek                                                               -appellant

                                                                                                                 RP273/2014

against

Rath-Wood Home And Garden World Limited        -respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. N. Russell

Members:     Mr. J. Hennessy

Mr. F. Dorgan

heard this appeal at Carlow on 25th August 2015

Representation:

Appellant:       Ms Joanna Kwiatkowska, Consultant, 2 Doirin Alainn,

                        Ballylynan, Co Laois

Respondent:    A director and the Financial Controller of the company were present at the hearing.

Summary of evidence:

A Polish translator was provided by the Tribunal for the hearing. The appellant was employed in the position of kitchen porter with the respondent company from July 2006. The appellant was absent from work due to a medical condition since 2010.

Central to this case were two documents issued by the appellant’s doctor. The first was dated 4^th March 2013 and stated:

“I wish to confirm that the above named patient is able to return to work but she should avoid any heavy duties (lifting below 10kgs).

The second medical document was a medical certificate stating that the appellant was unfit for work from 19^th February 2013 to 8^th March 2013 due to a medical condition. The appellant submitted both documents to the respondent company.

The Tribunal heard evidence from both parties. It was the appellant’s case that the date of the 8^th March 2013 was an error on the part of her doctor and that she was fit to return to work prior to that date, as evidenced by the earlier medical document.

The appellant attended a meeting in the workplace during March 2013 and confirmed to the Kitchen Manager and the office administrator that she was fit to return to work. The Kitchen Manager told her that he would discuss the matter with the General Manager. The appellant heard nothing further and she attended the workplace on other occasions to find out when, or if, work was available to her. The appellant was aware that there was a need for cleaning duties to be carried out and she offered to carry out those duties as an alternative to the duties associated with the role of kitchen porter. The appellant was told that she would be contacted if work became available. During cross-examination it was put to the appellant that the meeting she described had actually taken place in February 2013 and that she was requested to provide the company with a letter from her doctor stating that she was fit to return to work and detailing what modified duties the appellant could carry out. The appellant did not recall a meeting taking place that month but she did recall telling her doctor that the company required further confirmation of her fitness to work. It was open to the company to telephone her doctor for confirmation but this did not occur.

In reply to questions from the Tribunal, the appellant confirmed that from March 2013 she did receive an unemployment or illness benefit and she was seeking to return to work with the respondent company.

In December 2013 the Department of Social Protection asked the appellant to provide them with a P45 from her employer. For that reason the appellant instructed a solicitor to write a letter to the company on her behalf in early January 2014.

The appellant’s daughter gave evidence of accompanying her mother to the workplace on two occasions to confirm her fitness to return to work. She recalled that the Kitchen Manager told the appellant that the role of kitchen porter was now being carried out by male members of staff.

It was the company’s case that in light of the seemingly conflicting documents from the appellant’s doctor the appellant was requested to provide confirmation that she was fit to return to work but despite requests that confirmation has not been received to date.

When the company received the letter from the appellant’s solicitor in January 2014 the director of the company telephoned the company to find out the context of the appellant’s request for a P45. The director of the company gave evidence that when he was informed the document was required for social welfare purposes and on this basis the company issued this document to the appellant stating a termination date of 3^rd January 2014. In reply to questions from the Tribunal, the director stated that he could not recall if he had discussed with the solicitor the fact that the appellant wanted to return to work as was also stated in the letter to the company.

The director did not attend all of the meetings held with the appellant but he was aware that the company had received medical documentation in 2013 and had contacted the appellant in relation to confirming her fitness to return to work. He was aware that she was seeking to return but as she had not proven that she was fit to return the company had a concern due to its obligation to ensure the health and safety of its employees. The company filled the appellant’s position by re-rostering the remaining kitchen porters to cover the appellant’s shifts.

Determination:

The Tribunal having heard extensive and conflicting evidence around the manner in which the appellant’s employment came to an end, has determined that, in reality, the appellant was not allowed to return to her pre-illness employment nor was any reasonable accommodation made for her return. It was accepted by the respondent that the appellant had enquired about a return to work on a number of occasions. The Tribunal accepts her evidence that she was advised that no work was available for her. The Tribunal does not accept it was an issue around the appellant’s medical certification that prevented her return to the workplace. It was clear to the Tribunal that in her absence the appellant’s role had been subsumed into the roles of other existing kitchen staff and had ceased to be a separate defined position. An employer is, of course, entitled to reorganise and rationalise its workplace and where it so does, this can result in redundancies

The Tribunal is of the view that the appellant was not considered for a return to her role within the respondent company for the reason that the role had ceased to exist. This is a redundancy and the appellant is entitled to her redundancy payment. The Tribunal has determined that in the circumstances of this case the period from when the appellant was fit to return to work to January 2014 should be taken as a period of reckonable service. The calculation should therefore be based on the following criteria:

Date of birth:                                                                         

Date of commencement:                                                        30 July 2006

Absence in last 3 years due to illness in excess of 26 weeks:           11 July 2011 to 3 January 2014

Date of termination:                                                                  3 January 2014

Gross weekly pay:                                                                     €178.99

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)