EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Joseph Shields UD1357/2013
- Claimant MN531/2013
Against
Dundalk Simon Community Limited
- Respondent
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 BL
Members: Mr. J. Goulding
Ms. M. Mulcahy
heard this claim at Dublin on 5th January 2015
and 14th July 2015
and 14th September 2015
Representation:
Claimant: Mr. James Doran BL instructed by:
Dylan Macaulay, DM Macaulay & Co., Solicitors, Cuilin, Allies River Road,
Rathmichael, Co. Wicklow
Respondent: Mr. Aaron Shearer BL instructed by:
Frank McDonnell, Solicitor, Ahern & McDonnell, Roden Place, Dundalk,
Co. Louth
The determination of the Tribunal was as follows:
Dismissal is in dispute
Claimant’s Position:
The claimant gave evidence. He was employed as a Night Shift Worker for the respondent since the 8th June 2004 working a 12-hour shift three times a week. The respondent provides a shelter facility for the public.
In February 2008 the claimant was involved in a car accident which caused him back, neck and a head injury. As a result of this accident he also suffered anxiety and depression. He informed his Line Manager (PMB) of this incident and submitted certified medical certificates for his absence. In July 2008 his doctor deemed him fit to resume work but strictly on a phased basis due to the nature of his duties. He informed PMB of his doctor’s recommendation. However on his return to work he was allocated a full time shift pattern. He told the Tribunal that he felt overwhelmed by it and had to take a day sick and a days annual leave during this roster. He informed PMB of his concerns regarding the work roster and the fact he had to take time off. PMB told him it was fine and to take off as much time as he needed.
He attended his doctor and requested to see a psychiatrist. He attended the psychiatrist regularly and kept PMB informed of his medical progress.
On the 5th December 2008 the Chief Executive Officer (NM) of the respondent company contacted him by letter to clarify his fitness to return to work and was informed that he would remain of the respondent’s payroll but on a “no pay” basis. He contacted PMB and informed him he would return to work in three months time. PMB told him his position would be covered over this period.
On the 3rd June 2009 NM again wrote to the claimant to request him to attend the respondent’s company doctor to ascertain a second opinion regarding his fitness to return to work. He was still to remain on the payroll but on a “no pay” basis.
On the 4th August 2009 he attended the company doctor (Dr C) who assessed him fit to return to work. The doctors report was submitted to the respondent who deemed it to be “too vague”. The claimant was invited to a meeting on the 21st September 2009 were he was informed the respondent required a medical report from his doctor and his psychiatrist before he could return to work. He contacted both his doctor and his psychiatrist who agreed to submit a report. Both reports were submitted to the respondent.
Some weeks later the claimant contacted PMB who informed him that he had not received the psychiatrist’s report. He contacted the psychiatrist’s office and was assured the report had been sent to his employer. He contacted PMB on a number of occasions to be again informed the psychiatrist’s report had not been received. PMB told him this report could have been lost or could have been opened by anyone at the respondent’s address. This caused the claimant much distress.
On the 23rd March 2010 NM wrote to the claimant requesting his attendance at a visit with an Independent Occupational Assessor which would be paid for by the respondent. On the 13th May 2010 he attended the Independent Occupational Assessor (Ms. G) who in turn forwarded a report of the claimant. Ms. G. advised the claimant to return to work on a phased basis, i.e. one shift one shift per week, which would then be assessed at a later time.
Meetings were then held between the claimant, NM and PMB on the 4th and 21st June 2010. It was suggested the claimant return to work in another shelter which could be more suitable to him. The claimant initially requested a work schedule regarding these shifts and was told there were no details available. However at the second meeting he was handed a work roster that was contrary to the recommendations in Ms. G’s report. When he asked he was told that he did not have to attend Ms. G. again.
A letter dated the 21st June 2010 was sent to the claimant to attempt to agree the issues. On the 7th September 2010 the claimant contacted NM to enquire why he had to apply for a position in which he already held. NM informed him his contract had terminated since the issuing of Ms. G’s report. A letter dated the 14th October 2010 advised the claimant of the termination of his contract in a particular project. However the respondent was willing to facilitate a phased return to work roster in another project on receipt of a doctor’s report. The claimant sought legal advice.
The claimant’s solicitor wrote to the respondent on the 21st September 2010 regarding the claimant’s termination and notified them the claimant would appeal the decision pursuant to the respondent’s grievance procedure.
On the 11th October 2010 a meeting took place with the respondent, the claimant attended with his solicitor who raised several points regarding the claimant’s grievance. The respondent agreed to reply to each issue.
The respondent wrote to the claimant with proposed new terms and conditions of employment. However, this new contract had a reduced salary from €42,826 to €28,991 per year. The claimant responded on the 8th November 2010 stating the terms and conditions were not acceptable but that he was more than happy to work under his original terms and conditions of employment. Correspondence, which was opened to the Tribunal, crossed between the respondent and the claimant’s solicitor.
On the 7th November 2011 the claimant’s solicitor informed the respondent the claimant was invoking the company grievance procedure. Correspondence again crossed between both parties. (This correspondence was opened to the Tribunal).
In July 2012 the claimant informed the respondent of his change in legal representation. On the 1st December 2012 the claimant received an email from NM informing him, for the first time, that his position was to be made redundant. A letter dated 25th February 2013 officially informed him of his redundancy. The claimant did not accept the redundancy payment.
He gave evidence of loss.
Respondent’s Case:
NM who was Chief Executive Officer from 2006 until June 2014 gave evidence. He did not have day to day dealings with the claimant as the claimant reported directly to his Line Manager (PMB).
In 2008 the claimant sustained an injury due to a traffic accident and was absent from work. PMB kept NM informed of the claimant’s health. In 2009 PMB informed NM the claimant wished to return to work on a phased basis. The claimant was requested to attend the company Doctor to confirm his fitness to return to work.
In June 2010 NM met the claimant following the receipt of a medical report on the claimant’s health. NM suggested the claimant return to work at a different location. NM told the Tribunal that he left the meeting feeling all matters were agreed with the claimant. The claimant met with PMB who gave him his work roster. There did not seem to be any problems at the time.
Some days later the claimant contacted the respondent stating he had questions regarding his return to work.
In July 2010 the claimant wrote to inform the respondent he was fit to return to work. Over the following months the claimant raised issues concerning the input of PMB into his work.
On the 15th October 2010 a grievance meeting was held with the claimant, issues were discussed. Again NM thought all matters had been clarified with the claimant. Over the procedings months a number of issues arose, some being rectified. NM told the Tribunal that the one concern claimant had regarded PMB’s input which could not be agreed. The respondent could not commit to PMB not having any input into the claimant’s work. It was a stalemate.
During this time the respondent was going through funding cuts; salaries were reduced and working hours were cut. A Board decision was made to make redundancies, including the claimant’s position as they were uncertain if the claimant would ever return to work.
In February 2013 the claimant was notified his position was to be made redundant. However, a redundancy payment did not issue to the claimant and he did not engage in discussions.
On cross-examination NM stated the claimant had invoked the company grievance procedure regarding the involvement of PMB but the respondent wanted him, the claimant, to return to work and only then invoke it. When put to him how many people had been made redundant he replied six but only the claimant’s had been compulsory. When an enquiry was made NM said the claimant’s position had been filled.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced over the three days of this hearing.
The Tribunal noted that in this case the person was made redundant and not the position. Therefore there was no redundancy situation which is a pre-requisite for making someone redundant. Further, the employer failed to produce the matrix that is necessary to establish that a position is redundant. The Tribunal therefore find that the claimant was unfairly dismissed.
Accordingly, the Tribunal awards the sum of €30,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal awards the sum of €3,294.32, this being four weeks gross wages, under the Minimum Notice and Terms of employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)