EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Marius Marosan
- claimant UD1757/2014
Against
OCS One Complete Solution Limited T/A OCS Ireland
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr D. Peakin
Mr. J. Dorney
heard this claim at Dublin on 27th January 2016
Representation:
Claimant(s) : In person
Respondent(s) : Mr Tiernan Doherty,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent company operates a contract cleaning business and employed the claimant from the 24 May 2010. During a period of sick leave the respondent wrote to the claimant advising him that they had lost the contract at the site where he was assigned. The letter dated the 30 October 2014 was opened to the Tribunal. In the letter the claimant was advised that his employment would transfer to the new contractor under the Transfer of Undertakings Regulations 2003 from the 10 November 2014. A letter dated the 19 November 2014 from the respondent was also opened and referred to the claimant’s failure to submit medical certificates since the 15 October 2014.
The claimant submitted that he had not worked at the site where the contract was lost by the respondent company as he was transferred to another site in August 2013 due to work place issues. Following an accident in December 2013 the claimant was out on sick leave. The claimant confirmed that he remains unfit for work.
The respondent could not confirm which site the claimant had worked at but believed that his primary contract was at the site where the contract was lost in November 2014. The respondent confirmed that the contract at the second site where the claimant alleged he was assigned was also lost to another company in August 2014.
Determination
The Tribunal considered the circumstances in this case and recognising that the function for which the claimant was employed was transferred under the Transfer of Undertakings Regulations 2003 to a new entity. The fact that the claimant did not receive a notice of dismissal made it difficult for a decision to be made that the claimant was dismissed.
Another factor in this matter was that the claimant is still incapable of performing the duties for which he was employed and this condition is likely to continue for some further period of time putting the claimant outside a two year period from a possible date of dismissal.
In such circumstances the Tribunal must find that the claimant was not dismissed and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)