UD1375/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                     CASE NO.

Yar Allah (claimant)                                                                                       UD1375/2014                                          

Against

Resource Facilities Services Limited T\A Resource

                                                                                                (respondent)   

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms J. McGovern B.L.

Members:       Mr. B. Kealy

                        Mr. J. Dorney

heard this claim at Dublin on 21st January 2016

Representation:

_______________

Claimant(s) :                Mr. Brian Reagan B.L. instructed by Mr. Gerry McKinney, Frank Ward    

                                   & Co., Solicitors, Equity House, Upper Ormond Quay, Dublin 7

Respondent(s) :           Mr. John Barry representing KPMG as receiver for Resource Facilities Services Limited, 1 Stokes Place, St. Stephens Green, Dublin 2        

The determination of the Tribunal was as follows:

The claimant was employed as a mail room operator from 1^st December 2008 until his employment was terminated on 9^th April 2014.

MS gave evidence on behalf of the respondent, which is a facilities company who in this instance, operated outsourced contract for D. He told the Tribunal that he was a Manager during the course of the claimant’s employment. The claimant was employed at site D and his work involved sorting mail as well as certain driving duties. MS indicated that the claimant was injured in a car accident on 22^nd March 2013 during the course of his employment. The claimant returned to work after the accident, however later in year the claimant sent in a medical certificate from 23^rd October 2013 citing “worsening lower back pain”. The medical certificate covered the period up to and including 5^th November 2013.

The claimant did not return to work beyond that date and evidence was given that no further medical certificates were received by the respondent. In cross examination this was disputed, the claimant asserted that he sent in continued medical certificates to either his immediate manager (RF) or HR.

On 19^th November 2013 the respondent wrote to the claimant inviting him to a meeting on 17^th December 2013 in relation to the expiry of his right to work documentation. The claimant failed to attend this meeting or notify the respondent of his non-attendance. The respondent wrote to the claimant on 20^th December 2013 inviting him to a disciplinary meeting on 6^th January 2014. The claimant subsequently submitted his documentation in January 2014 resolving the issue of his work documentation.

Due to the claimant’s ongoing absence, the respondent wrote to the claimant on 17 January 2014 inviting the claimant to attend the company occupational health provider on 24^th January 2014. The claimant attended this appointment and the OHP concluded that the claimant would be able to return to his duties. As a result the company wrote to the claimant on 10 February 2014 inviting him to a meeting regarding his return to work with a possible return date of 17^th February 2014.

As there was no contact from the claimant, the respondent wrote to the claimant again on 19^th March 2014 instructing the claimant to make contact before 24^th March 2014 to explain his continued absence. It was stated in that letter that the company would invoke the company disciplinary procedures if the claimant failed to make contact.

When the claimant failed to make contact the respondent again wrote on 28^th March 2014 inviting the claimant to a disciplinary hearing on 3^rd April 2014 to explain his reasons for non-attendance at the workplace.

The disciplinary meeting was held in the claimant’s absence on 3^rd April 2014 and the claimant was dismissed by letter dated 9^th April 2014 for gross misconduct for, inter alia, failing to follow the correct company notification procedure in relation to his unauthorised absence. A right of appeal was given but no appeal was initiated.  The respondent was not aware that the claimant was in Pakistan from 27th February 2014 for an extended period and continued to write to him at the address on file. The respondent did not receive a notification regarding a change of address in relation to the claimant.

The claimant stated in evidence that he was injured in a work place accident following which he experienced continued back pain and therefore had difficulty with his mail room duties which involved lifting etc. He stated that he forwarded medical certificates up to and including 3^rd June 2014 to his direct Supervisor RF, who was not in attendance at the hearing. The claimant stated that he had to move in with a friend for a few months in early January and told Ms. F that he had changed address. He had instructed a friend in his previous address to forward all post to him at the new address. He said he also told Ms. Fahy that he would be in Pakistan from 27^th February, 2014 for a period of time. He returned in April 2014 and at that juncture received the various letters. The claimant indicated that he did not receive the letters from the respondent due to the fact that he was out of the country and was not aware of the possible disciplinary situation he was in. He maintained that he was in continued contact with RF by telephone in relation to his absence. On cross examination the claimant stated that he had not received a copy of the company handbook and was not aware of its content. He confirmed that he did not formally change his address and ultimately admitted he was not sure what letters he had received. He confirmed that he must have received the January letters as he appeared at the OHP appointment. He further confirmed that he does not remember if he received the February letters inviting him to attend a meeting about his return to work. Giving evidence in relation to mitigation the claimant stated he had been ‘out sick’ since April 2014 and was on illness benefit from October 2013 to October 2015.

Determination

The Tribunal has considered the evidence adduced. The evidence proffered by both parties was in direct conflict. In the first instance the Tribunal is not satisfied that the claimant adequately communicated his position to the employer. While medical certificates were ultimately produced to the Tribunal for periods post 5 November 2013 it is not clear how and if they were communicated to the respondent. The claimant was inconsistent in his evidence concerning the various letters sent to him, his place of abode during this time and his communication with his employer. The Tribunal does not believe that he adequately communicated any change of address or communicated his travel plans to Pakistan to the respondent. Furthermore it does not appear that the claimant indicated an intention to return to work or not at any stage. It is not clear whether the employer was notified that he was on illness benefit from October 2014 which, it seems to the Tribunal, an important fact in any possible return to work.   In those circumstances it is difficult to see what else the employer could have done to notify the claimant of its position. That is not to say that the respondent acted perfectly in this situation but that is not required for the purposes of a claim for unfair dismissal.

The Tribunal believe that the respondent acted reasonably in adopting the procedures it did and accordingly, the claimant was not unfairly dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)