EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Jaroslaw Dubrowski UD468/2014
MN196/2014
against
Strathroy Dairy (ROI)
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: Mr P. O'Leary B L
Members: Mr F. Moloney
Mr J. Maher
heard this claim at Dublin on 25th May 2015 and 23rd July 2015
Representation:
Claimant:
Mr Eamonn O'Hanrahan, O'Hanrahan Solicitors, 31 Fairview Strand, Fairview, Dublin 3
Respondent:
Mr. Cormac O'Ceallaigh, Cormac O'Ceallaigh & Co., Solicitors,
388 North Circular Road, Phibsborough, Dublin 7
Background:
The respondent operates a milk distribution depot in which the claimant was employed as a
truck driver from 6th February 2007 until he was dismissed on 24th February 2014.
The claimant was involved in an accident at work on 23rd August 2011 and was absent from work on sick leave thereafter until his dismissal. The claimant sued the respondent in relation to this accident and 6 other accidents prior to that date. These actions were all settled prior to a court hearing.
It was the claimant’s position that the respondent had refused to allow him return to work even though the company doctor certified him fit to return to work and that he was dismissed because he had sued the respondent in relation to the work place accidents.
However the respondent denied that he dismissed the claimant because of being sued by him and told the Tribunal that the claimant was dismissed for the following two reasons:
- The claimant had failed to report two accidents at work one in January 2011 and the other on 18th August 2011
- That there was no guarantee that the claimant would not have another accident at work and they were not happy that it was safe to take him back.
Determination:
The Tribunal considered the evidence in the case and noted that the contract of employment and attached conditions did not specify gross negligence as a reason for dismissal. However the Tribunal did infer such a condition into the contract had the claimant been negligent.
The Tribunal noted that in the replies to the High Court notice for further and better particulars dated 10th September 2012 the claimant had already supplied the respondent with the particulars of all the injuries sustained by the plaintiff and the dates of all the accidents. In the circumstances the respondent had knowledge of each of the accidents at that time even if they had not been reported when they actually occurred. The Tribunal determines that the respondent in waiting a further 18 months had dissipated the reasonableness of taking action against the claimant in the manner they did. In the circumstances the Tribunal finds that the claimant should not have been admonished in the manner he was.
The claimant had indicated he was unfit for the position that he had held and his G.P. had issued a letter to that effect. However the company doctor had issued a later medical report to say that the claimant was fully fit for the position he held. This medical report was commissioned by the company for action by the company in their deliberations on the claimant’s future with the company. Therefore there were no medical grounds to terminate the claimant’s employment.
The Tribunal finds that the claimant was unfairly dismissed and that the most appropriate remedy is compensation. The Tribunal is not satisfied that the claimant persistently sought to mitigate his loss and in all the circumstances awards the claimant the sum of €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal also awards the claimant €2184.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)