EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Patryk Hordynski
(claimant) UD266/2013
Against
Tesco Ireland Limited
(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 F. Moloney
Mr J. Maher
heard this claim at Dublin on 18th March 2014 and 24th February 2016
Representation:
_______________
Claimant(s) : Mr Damien Reilly, McKeever Rowan, Solicitors, 5 Harbourmaster Place, IFSC, Dublin Harbourmaster Place, IFSC, Dublin 1
Respondent(s) : Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
Claimant’s case:
The respondent is a large supermarket chain and the claimant was employed as a warehouse operative in one of its warehouses. The claimant commenced employment with the respondent on 1st February 2008 and his termination date was 9th November 2012. The fact of dismissal was in dispute and therefore the claimant was required to go into evidence first.
The claimant handed his resignation in on 31st October 2012 and told the Tribunal he had done so because of how he was treated by the respondent since he had an accident at work on 20th May 2012. The claimant was absent from work on sick leave from the date of this accident until he resigned on 31st October 2012. He continued to claim illness benefit until 2nd January 2013 at which point he claimed job seekers benefit until he returned to Poland permanently on 6th March 2013.
There is a sick pay scheme in the company and the claimant was paid for 8 weeks and also referred a case to the Rights Commissioner. While absent on sick leave the claimant travelled to Poland from 3rd August 2012 until 3rd September 2012 for physio therapy and also attended an orthopaedic specialist and his GP while there. It was cheaper to do this in Poland and it was easier to communicate with Polish doctors as opposed to Irish doctors as the claimant’s English was poor.
A condition of the sick pay scheme was that the employee must attend “Welfare Meetings” when required to do so. The claimant had attended a number of these and found these difficult as he lived in Fairview and had to travel to Donabate for these meetings. Before going to Poland on 3rd August 2012 he had informed the HR Department of his intention to do so but they did not approve of this and told him that he must be available for work while absent on sick leave. A welfare meeting was arranged for 3rd August 2012 in Donabate but the claimant informed HR that he could not attend as he was travelling to Poland that day. It was agreed that a manager would meet with the claimant in the City Centre at 10:00 hrs on 3rd August however the claimant received a phone call from the HR Manager at 09:00 hrs on that morning to say they could they could not meet in the city centre but only in Donabate or the claimant’s house and the meeting never took place. Before leaving for Poland the claimant provided the respondent with his phone number and Polish address. He also stayed in contact with the respondent and submitted weekly medical certs from Poland while he was there.
On returning to Ireland the claimant found that three letters had been sent to his Irish address by the respondent. The first two were appointments for welfare meetings and the third, dated 31st August 2012, was a notice of termination of employment due to the fact that he had not attended these meetings. This letter did not inform the claimant of a right to appeal and he was confused by this so he sent a fax on 19th September 2012 to the respondent expressing his wish to appeal his dismissal.
The respondent replied to this fax stating that “any consideration of the reinstatement of your contract of employment would have to be based on you providing a definite return to work date, within a reasonable timeframe” and “Subject to the above the company is prepared to accede to your request to appeal the determination”.
The claimant appealed what he deemed to be his dismissal and an appeal meeting was set up for 2nd October 2012 albeit on condition that the claimant would commit to a return to work date based on the fact that the company doctor had stated he was fit to return to work. The claimant was not informed that he could bring a representative and attended the meeting alone. At this meeting the Manager (MK) acted as though he did not know what the meeting was about and when the claimant asked why he was dismissed MK said that he was not dismissed and his job was still there for him. The claimant was very confused because he had been told by letter that he was dismissed.
The claimant asked for a copy of the company doctor’s report and the manager immediately left to get it. There was a recess in the meeting and after 15 minutes the note taker returned to the claimant and informed him that she could not give him the report and that the manager had no more time to meet with him. The note taker also told the claimant that if he wanted the doctor’s report he should write to the respondent.
After this the claimant wrote to the respondent requesting that a decision in relation to his appeal be sent in writing to him as he was unable to attend any further meeting due to him being physically and emotionally exhausted. A reply was received dated 2nd October 2012 requesting a medical report indicating a definitive return to work date, within a reasonable timeframe and informing him that on receipt of said report they would review the situation and decide on the next course of action. The claimant then sent a grievance dated 8th October 2012 to the respondent in relation to how he had been treated and on 10th October 2012 he sent a further note requesting a response to his grievance within 10 days.
On 31st October not having received a reply to his request of 10th Oct 2012 felt that he had no alternative but to send a resignation letter to the respondent.
Continuing in cross-examination on the second day of hearing, the claimant indicated that he sent four medical certificates to the respondent by registered post from Poland. The claimant’s representative agreed to forward copies of the certs along with the registered post receipts to the Tribunal as these were not available at the hearing. It was confirmed by the respondent’s representative that two opinions in relation to the claimant were received in August 2012 but no medical certificates.
The claimant was questioned in detail in relation to the Med Wise Medical report issued on behalf of the company and this report was opened to the Tribunal. After questioning, the claimant’s representative asked that the Tribunal read the report in full as it is important that the full contents of the report be taken into account.
In relation to training, although the claimant did not remember receiving the company handbook, he confirmed that he signed for it on 25th February 2008. He indicated he understood the absence reporting in that he must inform the employer every week in relation to his absence.
The claimant confirmed that he attended Development meetings in relation to his ‘picking performance’ from 2008 onwards. At times he was threatened with dismissal in relation to his picking performance. He said that although the company agreement with SIPTU was 84 PI, the Managers pushed for 100% picking. The claimant stated that the hearing was the first time he gained sight of the SIPTU/company agreement. It was noted that the claimant’s performance was above the 84% standard in 2012 on a number of occasions and below it on one occasion. The claimant felt under threat when he did not reach the target figure.
At the appeal meeting, the claimant confirmed that the Depot Manager, MK, informed him that he had not been dismissed, despite the termination letter of 24th September 2012. The claimant accepted that he understood what ‘leave of absence’ meant. He said he had declined the offer of ‘leave of absence’ as he was on sick leave and had forwarded his medical certs on a weekly basis as well as telephoning the ‘absence phone’ while in Poland.
Respondent’s case
The HR Manager, BH, told the Tribunal that he attended a welfare meeting with the claimant on 27th July 2012. The meeting was held as a result of a letter received from the claimant outlining his concerns. BH told the claimant at this meeting that there was no need to be stressed as it is usual to inform an employee of possible disciplinary consequences but it is not done on a threatening basis and is merely an information process. BH told the claimant that he had found no evidence that he had been threatened or pressurised at developmental meetings.
Leave of absence was offered to the claimant when he requested to go to Poland to allow him flexibility. When the claimant refused leave of absence he was made aware of the need to comply with the sick policy of the company and leaving the country was not an option. Although BK was aware that the claimant was going to Poland for a month in August, the company was obliged to follow the sick policy which meant the claimant was required to attend regular welfare meetings. BK wrote to the claimant on 14th August 2012 at his Dublin address requesting him to attend a welfare meeting on 22nd August 2012. When the claimant failed to show up, a further letter was issued on 27th August 2012 requesting the claimant to attend a welfare meeting on 31st August 2012. As the claimant failed to show up to these meetings, a letter of termination was issued on 14th September, 2012 giving notice period. The claimant appealed this by way of letter of 25th September, 2012 and the appeal was heard on 2nd October, 2012. The claimant resigned on 31st October 2012.
Under cross-examination, BH stated he understood that the claimant was absent due to an arm injury. When asked why letters were issued in August to the claimant’s Dublin address when the respondent was aware he was in Poland from 3rd August until 3rd September, 2012, BH stated that they had to follow the sickness policy. They had offered the claimant leave of absence and he had refused it. The sick leave process is on a week to week basis. When asked why the claimant was dismissed, BH stated that the claimant was not dismissed.
In reply to the Tribunal, BH indicated that the sick leave process is based in Ireland. There would be flexibility if a reasonable reason was given e.g. if an employee was in a car crash while abroad and was not fit to travel. The company pay eight weeks sick pay. Although telephone calls are recorded in the absence book, BH could not recall if it had been checked to ascertain whether or not calls had been received from the claimant.
The Depot Manager, MK, gave evidence and told the Tribunal that he dealt with the appeal. MK considered all the points raised in the claimant’s appeal. The claimant confirmed that he understood the leave of absence process. The respondent wanted an indication of a return to work by the claimant. MK stated that he told the claimant at the appeal meeting that he did not want to lose him. The respondent still had work for the claimant. MK told the claimant that he had not been dismissed. The respondent was obliged to hold a welfare meeting and these are conducted in Ireland. There was no medical report from the claimant as to his return to work. The claimant then resigned his position by letter dated 31st October 2012 to Head Office.
Under cross-examination MK told the Tribunal that he did not consider contacting the company doctor in relation to the claimant’s physicians and progress. He had no instruction from the claimant to initiate this. MK did not agree that the claimant was dismissed for non-attendance at two welfare meetings in August 2012. MK reiterated that the claimant still has a job today with the company and the respondent is still waiting for a medical report from the claimant. MK did not accept that the respondent received medical reports from the claimant nor did he accept that there was a condition attached to the appeal with regard to the provision of a medical report.
Determination
The irrefutable evidence given to the Tribunal was that the Claimant received a letter of dismissal on 14th Sept 2012 – yet in evidence to the Tribunal witnesses for Tesco said he was not dismissed. The Claimant`s manager stated in the course of his evidence that he still had a job for the Claimant. It follows that the Claimant was a satisfactory worker and was not dismissed for his performance.
The Tribunal considered the respondent’s proposition that a worker while incapable of working due to illness or injury and recuperating could be prohibited from travelling to his home state in order to obtain treatment for his condition and find that this is not a reasonable proposition. This demonstrated to the Tribunal that the claimant was doing all in his power to recover more quickly from his injury. Where there is no misconduct on the part of an employee it is not reasonable for an employer to continue to remind that employee of the disciplinary process – this was using unnecessary pressure on the claimant.
The medical evidence given was that the company doctor had given an opinion in a letter to the respondent stating that the claimant would be fit for work in four weeks from the date of the letter. The opinion of the company doctor should not have been accepted by the respondent without that doctor establishing the concurrence of the claimant’s doctor’s opinion in the matter. In any even the claimant was entitled to the company doctor’s report which was not given to him in order that he could obtain his own doctor’s opinion on the prognosis expressed in that report. The claimant was unfit for work at the time and he had complied with the company sickness policy in so far as it was reasonable.
The Tribunal finds that the claimant was dismissed by the letter of the 14th Sept 2012 and that this dismissal was unfair. The Tribunal deems the most appropriate remedy in this case is compensation and awards the Claimant the sum of €16,000.00 (sixteen thousand euro). In deciding on this sum the Tribunal took into account the fact that the Claimant had left the jurisdiction some time after the dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)