EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Krzysztof Florek – claimant UD377/2014
against
Tesco Ireland Limited – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr A. O’Mara
Ms E. Brezina
heard this claim at Dublin on 4th June and 4th September 2015
Representation:
Claimant: Mr. Marcin Szulc of Rostra Solicitors,
78 Benburb Street, Smithfield, Dublin 7
Respondent: Mr Mark Dunne BL instructed by Mr John Kealy
of Tesco Ireland Limited
The determination of the Tribunal was as follows:
At the outset the respondent conceded that dismissal was unfair but asked the Tribunal to take into account the claimant’s contribution to the situation in assessing an award.
Determination
The Tribunal has carefully considered the evidence adduced during the course of the two days heard before it. The claimant has brought a claim for unfair dismissal arising out of the termination of his employment on 23rd July 2013 which was the culminating point at the end of a protracted and unhappy interaction between the parties.
On the first day of evidence (4th June 2015) the respondent-company conceded that certain aspects of the dismissal may well be capable of seeming to be unfair but has asked the Tribunal to have regard for the claimant’s own behaviour and how this led to the letter of termination being issued.
The claimant’s employment commenced in November of 2008. The claimant is a Polish native who has some English but is by no means fluent. The claimant was engaged as a general operative at the respondent-company’s enormous plant on the North side of the city of Dublin. The claimant had forklift operator skills and was a ‘picker’. The Tribunal accepts that certain aspects of this type of work would be manual and there is an onus on employee and employer alike to operate within the accepted norms and to operate good practices in compliance with acknowledged Health & Safety standards. In the course of his employment, the claimant appears to have lodged a number of grievances (up to 25) and there was a never ending cycle of hearing, finding and appeal in existence during the course of his employment. The Tribunal recognises that an employee is well within his/her rights to bring matters of concern to the attention of management as often as may be required or necessary and it ill-behoves an employer to become frustrated on the grounds of volume.
Matters escalate somewhat in early 2012 when the claimant is given a sanction on a finding of incorrect use of his swipe card, This finding was appealed and in the same period of time (Nov 2013) the claimant goes out on sick leave with a duality of complaints; back pain and stress.
It is worth noting that as of the 20th of March 2012 the company is put on notice of the fact that the claimant has had lower back pain arising out of his duties which include lifting ‘very heavy cases’ of about 20kg per case. The claimant’s doctor having stated this fact goes on to say that the claimant ‘is fully fit to resume warehouse duties today’.
The Tribunal accepts that the respondent is entitled to, and indeed has a duty of care to, ensure that the claimant’s re-entry to the workplace is in accordance with whatever objective medical findings as the company may insist on having to ensure both the respondent’s obligations and the claimant’s wellbeing are taken care of.
It was therefore unrealistic of the claimant to demand to be returned to the workplace without affording the respondent the opportunity to conduct their own medical assessment in advance.
In July of 2012 it came to the respondent’s attention that the claimant had left the country and was effectively on ‘holidays’ in Poland. The claimant had not notified his employer of his intention to take this trip and his decision to make himself unavailable for welfare meetings is completely contrary to company policy.
The claimant returned to work on a phased basis per the respondent’s return to work policy in September of 2012 after an absence of 79 days. The claimant was unhappy about the phased basis of his return but the Tribunal has to accept this is a standard workplace norm and the burden lay with the respondent to ensure the claimant was not caused physical or mental trauma by overloading him too quickly.
That said, the interaction between respondent and claimant deteriorated in this period of time and in particular the claimant says he was being unfairly singled out for criticism of his work level. The respondent witness described a trade union agreed performance indicative programme which operated in the work place and there was a delivery expectation of at least 84%. The claimant, it seems, was repeatedly coming in well below this target.
In his evidence, the claimant said that the targets were unrealistic and too high and that the demands being imposed on the workforce was leading to dangerous work practices. On balance, the Tribunal has to accept the respondent’s evidence that the targets were being met by the majority of the workforce and that with union input there is no question of dangerous or unacceptable practices being in operation.
The claimant is shadow managed to try and understand why his performance is so poor. Despite any assistance this might have given the claimant appears to have been determined to pursue a campaign of complaint and fight back with no acceptance of fault on his part.
On the 29th of November 2012 the claimant went out sick from the workplace with stomach pain and light headedness. This subsequently was diagnosed as back pain and medical certificates declaring this fact were sent to the workplace which inevitably prompted the need to have the claimant medically assessed by the respondent’s own doctor.
Dr DG assessed the claimant on the 6th of June 2013 and determined the claimant fit to return to work on the first of July with specific re-training in manual handling to be given.
In the meantime the claimant’s own GP as of June 13th 2013 provides a report stating the claimant is unfit for work for the foreseeable future.
The Tribunal fully accepts that the respondent was faced with the unenviable task of trying to reconcile two opposing medical reports. Whilst the Tribunal agrees that the easier solution was for the two medical experts to confer and come up with a considered long term or short term proposal, the Tribunal cannot accept that the respondent company had the authority to direct the claimant’s doctor initiate this proposal and it should have been the respondent’s own doctor who should have made the first contact.
Either way, the respondent demands a report from the claimant’s GP on or before the 10th of July 2013, in the absence of which termination will assume to have been effected. No such report is provided.
The claimant’s doctor’s receptionist does write to the respondent on the 10th of July 2013 to indicate that the claimant’s doctor is away and while some leeway might have been allowed in light of this fact, the claimant failed to re-engage with the respondent and instead went on his own holiday to Poland.
The Tribunal has to acknowledge that whilst the letter of dismissal issued on 22nd of July 2013 may seem unfair in light of the claimant’s doctor being on holiday, this cannot be wholly the respondent’s fault as the claimant has done nothing to ameliorate the situation and in fact has since the 19th of July 2013 has acted as if to revoke and/or damage the contractual relationship between the parties and has acted to frustrate the respondent’s contact. The claimant is awarded €11,000.00 compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)