EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD820/2012
CLAIM(S) OF:
Charles Reilly
– claimant
Against
Applus Car Testing Service Limited
- respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 25th August 2014, 20th October 2014, 14th January 2015 and 22nd April 2015
Representation:
Claimant(s) : Mr Alan Ledwith BL instructed by Mr. Kevin Bourke, Kevin M Bourke, Solicitors, Burke House, Ellison Street, Castlebar, Co Mayo
Respondent(s) : Mr Paul Twomey B.L instructed by Mr David Andrews, Kate McMahon & Associates, Solicitors, 223 The Capel Building, Mary's Abbey, Dublin 7
Respondent’s case:
The respondent operates the NCT and the claimant was employed in the Westport test centre as a car tester from 1st November 1999 to 8th September 2011. The claimant’s dismissal was confirmed by way of letter dated 29th August 2011.
The claimant had been on long term sick leave up to 25th July 2011 and following the recommendation of his own GP and the company doctor he was fit to resume work with a recommendation that he initially be allowed to return on a 4 hour working day.
Due to his long absence from work and the changes in work practices that had occurred in that time the claimant was required to under-go a re-training programme. Re-training was normally carried out in Dublin but special arrangements were made to facilitate the claimant’s retraining in Galway. The claimant began the re-training programme on 25th July 2011 and it was to last 3 weeks. The trainer assigned to the claimant told the Tribunal that it all went well up to the Friday of the second week of training at which time the claimant was unwell and went home. The training was not completed and the trainer could not certify the claimant as having been re-trained. The trainer was concerned that the claimant would not be able to test the required number of vehicles in a day as set by the respondent but did not have the opportunity to assess this as the claimant never resumed the re-training programme. The trainer passed this information to the HR Department and had no further involvement with the claimant.
The HR manager (EB) wrote to the claimant on 18th August 2011 and arranged to meet with him on 25th August 2011. The claimant was informed that he could have a witness present but arrived at the meeting unaccompanied, EB was also alone. Minutes of this meeting were typed up later that day by EB. A copy of these minutes was submitted to the Tribunal at the hearing.
It was EB’s position that she had informed the claimant that as he did not pass the re-training programme he could not be allowed to return to work. The problem for the claimant as far as EB was concerned was that he could not achieve the level of output required by the respondent and was unwilling to complete the re-training programme. Therefore EB understood from this meeting that the claimant was resigning by mutual agreement. EB wrote to the claimant on 29th August 2011 informing him that “Unfortunately, you have left the Company with no alternative but to terminate your employment with two weeks’ notice”. The claimant was not informed of a right to appeal because EB felt that the termination was agreed with the claimant. EB was subsequently shocked to learn that the claimant wrote a letter to the HR department but on enquiring about this with the claimant she understood that he just wanted to let it be known how he felt.
Claimant’s case:
The claimant’s GP gave evidence. The witness stated that the claimant had sustained a soft tissue injury and neck pain following an accident in October 2009. Following orthopaedic assessment the claimant was recommended to return to work on a phased basis. In January 2015 the witness became aware of bowel difficulties the claimant was experiencing to which he recommended a change to diet. On the 27 March 2015 the claimant was more open about his condition and the GP learned that the claimant had suffered with the problem since 2009. The main difficulty for the claimant was he could not travel long distances for work or retraining as a result of his condition.
The claimant gave evidence of enjoying his work and giving every effort to perform well in his employment. He had twenty seven years experience in motor mechanics. On the 9 November 2009 he attended the company doctor following an accident and a period of sick leave. The doctor was aware of his bowel condition on that day. He did not receive a copy of the medical report. He wrote to the respondent on the 16 December 2009 seeking a return to work date. He returned in January 2010 without any retraining. The respondent company had taken over around that time from his previous employer. The work was pressurised in that he was required to test a vehicle in forty minutes. A request by the claimant for long term illness benefit was turned down by the respondent in September 2010. During a period of sick leave the claimant attended the Galway centre for a retraining programme however he became ill during the training. His employment was terminated by letter dated 29 August 2011 and he was not offered any appeal. He was on certified sick leave at that time.
The claimant denied that the respondent had no knowledge of his medical issue as the company doctor was made aware in November 2011. The claimant denied that a special retraining programme was set up to accommodate him at the Galway centre stating that Galway was always considered a training centre. The claimant described the first week at the Galway centre as fine as he was left to test vehicles however he came under pressure from NO’B the trainer on the second week. NO’B was looking over his shoulder suggesting ways of speeding up the process. He was pushed to the limit causing him to become unwell. He was unable to test eight cars in four hours. The claimant accepted that the respondent had facilitated part time hours for him for the period 27 July 2011 to 5 August 2011.
Determination:
The claimant’s case is that he was unfairly dismissed by the respondent. The burden of proof is on the respondent to satisfy the Tribunal that the claimant was fairly dismissed. The claimant commenced a period of absence in 2009, which continued over 2010 and 2011 and eventually led to his dismissal. The claimant returned to work on the 25th July, 2011 and was required to commence refresher training. During the second week of training the claimant explained that he was experiencing difficulties with his health and confidence. On the 5th day of August, 2011, the claimant went home due to sickness. Thereafter, the company arranged a meeting on the 25th August, 2011. At this meeting, it became clear that the parties had reached an impasse whereby the respondent insisted on the claimant completing retraining before recommencing his employment. On the other hand, the claimant refused retraining in Galway and expressed lack of confidence in his ability. The claimant did not make the respondent aware of the extent of his health difficulties at this meeting. Following this meeting the respondent came to the decision to dismiss and this was communicated to the claimant by a letter dated the 29th August, 2011.
Having considered all of the relevant issues and the submissions made by both legal representatives, the Tribunal concludes that the claimant was fairly dismissed. The claimant left the respondent with no option but to terminate his employment because of his failure to complete the requisite retraining. It was also rational for the respondent to conclude that the claimant did not wish to return to the workforce. The respondent’s decision in this case was reasonable in all the circumstances and fair procedures were followed. The Tribunal does not accept that the fact that the claimant was not afforded a right of appeal rendered the dismissal unfair. Even if the Tribunal accepted the claimant’s contention in this regard, any such procedural shortcoming was not sufficient to prevent the dismissal being valid in the circumstances of this case.
Accordingly, the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)