EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Frank O'Loughlin WT207/2014
- Claimant UD1313/2014
against
KN Network Services Ireland Limited T/A KN Network Services
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr J. Horan
Mr J. Jordan
heard this claim at Dublin on 5th November 2015 and 15th December 2015
Representation:
Claimant(s): Mr Peter Cronin BL instructed by:
Mr Peter Burbridge
Sinnott Solicitors, 10 Church Avenue, Rathmines, Dublin 6
Respondent(s) : Ms Katie Doyle
IBEC
Confederation House, 84-86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The respondent argued that the claim under the Organisation of Working Act, 1997, is statute barred as the claimant was on sick leave from the 18th of December 2013 until his dismissal on 18th July 2014. His application was made to the Tribunal on 8th September 2014. The claimant contended that he was contractually entitled to 21 days annual leave in the calendar year and had only taken one day’s leave since his employment commenced.
Summary of Respondent’s Case:
Dismissal was not in dispute in this case. The claimant was employed by the respondent company as a pole erector from 4th July 2013 until 18th July 2014. The respondent company is contracted to install and maintain the network of a telecommunications company. The employment was uneventful until 17th December 2013 when the claimant suffered a broken bone in his hand when a pole rolled on top of it. The claimant then went on sick leave which continued until he was dismissed by reason of redundancy on 18th July 2014. He was on full pay for the entirety of the sick leave period.
The respondent argued that the claimant failed to respond to contact made by the company and so was notified by letter of 10th July 2014 that his employment contract was being terminated due to a downturn in the need for pole erecting.
The Health and Safety Officer gave evidence that he had a note in his diary for 2nd January 2014 of the claimant’s phone number, his address and 6th January beside it. He gave evidence that he phoned the claimant on that day and arranged to visit him on Monday 6th January 2014 in order to obtain a statement regarding the accident. When he called to the claimant’s apartment building the claimant did not respond to the buzzer or when the witness knocked on his door having been let into the building by another person. The witness did not attempt to phone the claimant to ascertain his whereabouts. He did not make any further attempts to contact the claimant until June 2014 when he was requested to do so by the Contracts Manager. He could not recall if he spoke to the claimant in June.
In cross-examination the witness denied that he failed to appear at the first arranged meeting or a second arranged meeting.
The Eastern Region Contracts Manager gave evidence. The claimant was hired as a pole erector to erect telegraph poles. He worked as part of a two-man team. However, due to storms in early 2014 the company was told to focus on poling and jointing in order to repair downed lines. The claimant was not qualified for this work. The witness secured alternative work for the claimant’s partner with a different group company when the claimant went on sick leave. This role ceased in June/July 2014. Ten to twenty redundancies were made in 2014. Available work depended on what the company was contracted to do.
The witness spoke to the claimant twice during his sick leave. The first time the claimant said he had gone to his doctor and the second time the claimant said he would be having an operation at the start of January and would be back six to eight weeks later. If he had come back to work then he would have gotten him work as a cherry picker driver. He continued to pay the claimant after the eight weeks had passed. He did not receive any sick certificates from him. He believed he would have phoned the claimant on a monthly basis due to queries from his manager regarding the claimant remaining on the payroll.
The witness was cross-examined. It did not occur to him to request a sick certificate. Certificates are sent to HR. He believed he phoned the claimant three times between the eight weeks expiring and redundancy notification, but the claimant did not answer. He did not write to employees. He could not recall if he left a message. The claimant did not contact him. He put forward the names for redundancy, but was not involved in writing to the employees and was unaware if warning letters were sent. The claimant’s name was put forward as the type of work he did had dried up. In the normal course of events he called workers in from the yard and explain that work was getting quiet and when there was more work he would call them back to work.
A HR representative gave evidence that prior to April/May 2014 the company had no actual HR department until one was established by the witness and her manager. She drafted the claimant’s letter of termination. Her understanding was that the claimant was on sick leave after an accident and had not responded to a number of attempts to contact him. His was position was being made redundant due to the lack of poling work required. The Contracts Manager instructed her to write to the claimant. She did not receive any contact from the claimant. The current procedure involves bringing employees in to discuss the risk of redundancy and consider other options depending on the work available and their skillset. If nothing is available their statutory redundancy is calculated. In cross-examination she agreed that the approach would different now.
Summary of Claimant’s Case:
The claimant gave evidence. His employment commenced on 4th July 2013. He had previously worked for a telecommunications company for 32 years and had worked in many areas; poling, cabling & fitting. He did not have much jointing experience, but his partner did and they could do that together. After the accident on 17th December 2013 he attended his GP who thought it was a sprain and gave him a certificate for three days and sent him for an x-ray. It transpired that his ulna was broken and he had surgery on 6th January 2014. He obtained a sick certificate and gave it to his partner to pass onto his supervisor.
The claimant disputed that the Health and Safety Officer arranged to meet him on the 6th of January 2014. The claimant had surgery scheduled for that day and would not have arranged a meeting. He believed that the meeting was arranged for sometime in mid January and there was no appearance by the Health and Safety Officer. The following week the H&S officer called to apologise and arranged a further meeting which he also failed to attend.
He contended that he phoned the Contracts Manager after his cast came off in March to let him know that he required physiotherapy, and that he was told there was no point coming back if he could not drive a truck. He contended that he phoned after his physiotherapy sessions on two occasions. He intended to return to work after his last physiotherapy session scheduled for 18th July 2014. He did not notify the company of this. The only letter or email he received was his letter of termination dated 10th July 2014. He did not recall any missed calls from the Contracts Manager and would have answered had he phoned. He had not yet been successful in securing other work. He provided four job applications emails. He made phone calls, but had not been called for an interview. He had maintained his driver CPC certification. He moved from Dublin to County Clare as he could not afford to live in Dublin anymore.
In cross-examination he agreed that his role was solely as a pole erector. He did not make contact after receiving the letter of termination. His work partner had been let go in June 2014. He accepted that there was no work, but others were still there.
Determination:
Conflicting evidence was given by the witnesses in relation to certain factual issues which was exacerbated by the lack of written correspondence between the parties. Although it was clear that redundancies were occurring in the company at that time the company did not follow its own procedures regarding selection for redundancy as outlined in the company handbook. The company failed to follow their own or any proper procedures in the dismissal of the claimant on the grounds of redundancy. The Tribunal considers that the claimant has failed to properly mitigate his loss and accordingly awards him €5,500.00 (five thousand five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal finds that the claim under the Organisation of Working Time Act 1997 is not statute barred and awards the claimant seven days under that Act totalling €910.00 (nine hundred and ten euro).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)