EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
An Employee UD846/2012
against
An Employer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. B. Glynn
Members: Mr. W. O'Carroll
Ms. H. Henry
heard this claim in Ennis on 29 May, 26 August 2014, and 21 April, 23 June 2015
Representation:
Claimant: Mr. Trevor Loughnane BL instructed by
M Petty & Co, Solicitors, 46 Abbey Street, Ennis, Co. Clare
Respondent: Ms. Rachel Mylotte BL instructed by
Mason Hayes & Curran, Solicitors, South Bank House, Barrow Street, Dublin 4
Determination
The Tribunal was informed that the Applicant was employed by the Respondent on the 1st September 1997 as a Primary School Teacher. The Applicant took Carer’s Leave in 2007/2008 and a Career Break in 2008 and 2009, all with the consent of the Respondent. In February 2009, the Applicant wrote to the Respondent informing them of her intention to return to the school when it re-opened in September. At that point and because she was absent from the school for a period in excess of two years, the Operating Procedures applicable to boards of management required that they refer her for assessment to an Occupational Health Service. Accordingly the Applicant was referred to Medmark Occupational Health Service, and while she indicated in a letter dated 24th June 2009 addressed to the Respondent, that she was complying with the pre-employment procedure with Medmark, she failed to contact them to set up an appointment.
However, prior to the Applicants letter of the 24th June 2009, she wrote to the Respondent on the 26th May 2009, indicating her intention to apply for a further leave of absence for one year. However the Respondent replied to her informing her that the only leave then available to her was unpaid certified sick leave which had to be approved by the Board of Management of the school.
On the 28th August 2009, days before the school opened, the Principal received a letter which was hand delivered to him in the school by a third party, informing him that the Applicant would not be returning to school and was taking sick leave. The Respondent then made an appointment with Medmark for the Applicant to be further assessed but the Applicant did not attend this appointment.
On the 19th March 2010, the Respondent wrote to the Applicant informing her that her entitlement to incremental salary, while on sick leave, would expire on the 7th April 2010. Again, the Respondent reminded her of the necessity of a medical referral should she decide to return to work. The Applicant then sought an ‘unpaid leave of absence’ but, at that point, the only option available to her was ‘unpaid sick leave’, which fact had been brought to her attention in the letter from the Respondent dated 16th April 2010. The Applicant did not respond to the letter from the Respondent. The Respondent then arranged a further appointment with Medmark on the 15th June 2010, which the Applicant did not attend. At that time, neither was the Applicant providing Medical Certificates for her absences from the school.
The Applicant did attend Medmark in July 2009 and this Report did consider her medically fit to resume her employment, but the Applicant does not appear to have acted on this Report to resume her teaching duties.
The Respondent received a further Report from Medmark, dated the 23rd December 2010, informing them that the Applicant was unfit for work as a Teacher, and this would remain so indefinitely. Further appointments were set up with Medmark but the Applicant failed to attend them. The Respondent made a final appointment with Medmark on the 25th May 2011, prior to which they wrote to the Applicant on the 13th May 2011, informing her of the appointment, in addition to informing her that the Board of Management was meeting on the 16th June to consider her future employment with the school. She was invited to attend the meeting and bring with her a work colleague or union representative. The Applicant did not attend the medical appointment, or meeting, nor did she reply to the letter.
The Respondent again wrote to the Applicant on the 31st August 2011, informing her of their requirement to seek further medical advice on her prospect of recovery and return to work. An appointment was set up with Medmark for the 7th September 2011, but the Applicant, while replying to the letter, did not allude to the appointment, nor did she attend it. This was the fourth medical appointment that the Applicant failed to attend since the April 2011.
The Respondent again wrote to the Applicant on the 10th October 2011, informing her of its decision to hold a further meeting to discuss her future employment in the school, on the 16th November 2011, and, again, the Applicant was invited to attend, along with a work colleague or union representative. This letter clearly set out the serious repercussions attaching to her refusal to work with them. There was no reply to this letter and neither did the Applicant attend the meeting.
The Board of Management met on the 16th November 2011 and decided to terminate the Applicant’s Contract of Employment with them, which decision was based on the five Medical Reports from Medmark, dated, respectively, 30th November 2009, 21st December 2009, 22nd January 2010, 6th September 2010 and 23rd December 2010, copies of which were made available to the Tribunal. This decision was communicated to the Applicant in a registered letter dated 18th November 2011, and, as this letter was returned to the Board, they again wrote to the Applicant on the 25th January 2012, which letter was hand delivered to the Applicant.
Much was made of the fact that the Board of Management had written to Dr. Madden of Medmark supplying certain information which did not reflect well on the Applicant and which could have influenced his Report on her but, the Tribunal was satisfied that this was unfounded. Dr. Madden was clear in his evidence that the information supplied to him did not influence him in any way.
The Applicant in her evidence challenged the contents of the doctors Report but offered no evidence to of any kind to refute any of the contents.
The Applicant also insisted that she did not receive several letters from the Respondent or a copy of some of the doctor’s reports but the Tribunal is satisfied that copies of all correspondence from all persons were sent to the Applicant.
The Applicant further contended that she did not attend the medical appointments with Medmark on the advices of her Union, but letters from the Applicant’s Union were contained in the Booklet of Documents handed into the Tribunal, which disproved same. Indeed, one of the letters clearly showed that the Union had, at one point, urged her to attend a medical appointment set up with Medmark.
The Tribunal found the evidence given by the Applicant inconsistent and evasive. She appeared unable to answer a direct question satisfactorily, or at all, and at times, gave answers unconnected to the question asked. She contradicted herself to such an extent that the Tribunal were left with no choice but to approach all of her evidence with caution.
Having heard all the evidence in relation to the case, the Tribunal has no hesitation in finding the determination of the Applicant’s Contract with the Respondent was not alone, not unfair, but, in the circumstances, wholly and completely justified. The Respondent did all in their power to help and assist the Applicant, but the evidence furnished at the hearing clearly showed that the Applicant refused to engage and co-operate with them .The Medical Reports on which the Respondent relied on and which they based their decision to terminate the Applicant’s contract with them was the only evidence they had available to them, given that the Applicant refused to co-operate with them in any way whatsoever, and they were entitled to rely on same , in the absence of any other evidence available to them.
Having considered all the circumstances of this case the Tribunal finds that claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)