UD688/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                CASE NO.

John Galvin                -appellant

                                                                                                        UD688/2014

against the recommendation of the Rights Commissioner in the case of:

Valeant Pharmaceuticals Ireland T/A Bausch & Lomb        –respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D.  Donovan B.L.

Members:     Mr J.  Browne

                    Mr. D.  McEvoy

heard this appeal at Waterford on 10th November 2015

Representation:

Appellant:       In Person

Respondent:    Ms. Mairead Crosby, IBEC, Confederation House,

Waterford Business Park, Cork Road, Waterford

Background:

This matter came before the Tribunal by way of an appeal of the appellant (the employee), of a recommendation of a Rights Commissioner dated 7^th April 2014 (reference: r-141133-ud-13JOC).

Summary:

The appellant who was a mechanical technician told the Tribunal that he commenced employment with the respondent on 18^th September 1995 and that his employment was terminated on the 20^th August 2013 and that he was paid in lieu of notice.

He said he was absent on sick leave March 2013 until June 2013 and that the reason given for terminating his employment was his failure to furnish medical certificates in respect of this period, to the respondent.   The appellant said he was in a lot of pain and just could not get around to getting medical certificates.

The appellant was on disability benefit during his period of illness and for some time after 20^th August 2013 but was not sure of how long after.

The appellant gave oral evidence of mitigating his losses such as applying for jobs even as far as Australia.

It was the respondent’s position that in accordance with the appellant’s contract of employment and in accordance with company policy, a failure to furnish the respondent with medical certificates at the relevant time or at all would result in termination of employment.   The respondent said this policy was strictly adhered to and that other employees had their employment terminated for the same reason.  It was put to the appellant in cross-examination that he was aware of this clause and that when he was absent on sick leave for two years ending in June 2011 he always sent in medical certificates.  The appellant did not dispute that he sent in certificates for that two year period.

The respondent told the Tribunal that the appellant was out sick from March 2013 and that they heard nothing from him save that the first week in June he contacted them to say he was out sick and they heard nothing thereafter until August when the appellant phoned the respondent and got a friend to hand in certificates on 20^th August 2013 which were all dated 9^th August 2013 and were back dated.

The respondent put it to the appellant in cross-examination that they had called him for in-house medical examinations and that he did not turn up for these.  This was not disputed by the appellant.

The respondent opened letters to the Tribunal wherein the appellant was asked to contact the respondent but failed to make contact.   The letters warned of “dire consequences” if he failed to make contact. The appellant accepted in cross-examination that he assumes he got the letters.   The appellant did phone after the second letter and said he would make contact with MF, the HR Director, but failed to do so.   The appellant said that did not know why he didn’t make contact.

Determination:

Having considered the evidence of the parties and the submissions the Tribunal finds that the respondent was entitled in accordance with the appellant’s contract of employment and its policy to terminate the employment of the appellant for his failure to furnish medical certificates at the relevant times whilst on sick leave.

The Tribunal is at a loss as to this failure in circumstances where it was the appellant’s evidence that he was in receipt of disability benefit which meant he would be required to furnish medical certificates to the Dept. of Social Protection and thus it should not have placed an undue burden on him to furnish medical certificates to the respondent.

Accordingly, the appeal fails and the Tribunal upholds the recommendation of the Rights Commissioner dated 7^th April 2014 (reference: r-141133-ud-13JOC).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)