UD279/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Patrick Gill – claimant                                                                                    UD279/2015

Against

Dublin Bus – 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

Ms. E. Brezina

heard this claim at Dublin on 31st March 2016

Representation:

_______________

Claimant(s):                             Ms Christina Ryan BL, instructed by:

Ms Sinead Farrelly

Early & Baldwin Solicitors, 27/28 Marino Mart, Fairview, Dublin 3

Respondent(s) :                       Ms Jeri Ward BL, instructed by:

Mr Hugh Hannon

Coras Iompair Eireann,

Solicitors Office, Bridgewater House, Islandbridge, Dublin 8

The determination of the Tribunal was as follows:-

Dismissal was in dispute in this case. The claimant was an employee of the respondent company for 47 years. He had worked his way up from the role of bus conductor to chief inspector.   He was due to retire upon reaching his 65^th birthday on 12^th April 2014, however, in 2014 an interim one-year retirement payment was discontinued by the Department of Social Protection and this would impact the claimant and other retirees until they could claim for their contributory pension at 66. The respondent offered the claimant and others in his situation the option of continuing in their roles on a one-year fixed term contract to bring them to their 66^th birthdays’. The terms of the contract protected their service and seniority. The claimant accepted this and continued working.

At the start of September 2014 the company Chief Medical Officer emailed the HR department and requested that every employee who had continued on after their 65^th birthday report to the CMO for a medical. The claimant took issue with not being contacted directly by the CMO and instead was informed by a fellow Chief Inspector that he was to attend a medical the following day, September 4^th 2014. The claimant phoned his line manager and informed him that he would not be attending. The HR Manager then requested that the claimant meet him the following day to discuss the matter. This meeting lasted approximately one hour, though no notes were taken, and what occurred was contested. The claimant in his evidence repeatedly stated that he refused to attend the medical as it was not in his contract. The HR Manager refuted that any mention was made of his contract and that his refusal was due to his lack of faith in the medical profession. The claimant strongly refuted this. It was not contested that there was a discussion about complementary medicine. The HR Manager attempted to ‘cajole’ the claimant into attending as if he did not he could not continue in his role. He made it clear that it was the claimant’s choice.

The HR Manager gave evidence that he finally accepted the claimant’s position when he stated that ‘he could be here until tomorrow and he would not change his mind’. The claimant put that he wanted to continue working but the HR Manager checked how many holidays he had left and gave him a finish date of 13^th Sep 2014. The HR Manager put that he did this at the claimant’s request. The claimant did not return to work after this meeting and no correspondence was issued to the claimant confirming what had occurred. The only correspondence was a letter from the Chief Executive Officer wherein he congratulated and thanked the claimant on his service and indicated that the claimant’s line manager would organise a retirement reception for him. This did not occur and there was no further correspondence.

The claimant agreed that he had attended medical appointments following promotions in his career. The requests were always by letter from the CMO. He could not recall being requested to attend a medical following his promotion in 1994/5 or when he was promoted to Chief Inspector in 2003. The respondent argued that the claimant drove a company car in his role as a mobile inspector and therefore his fitness to work was a requirement. There was a policy of calling employees for periodical checks but there were no obligatory medical checks.

Determination

The claimant’s service was continuous after his retirement date and the Tribunal had jurisdiction to hear the matter. It is clear that for safety reasons the claimant should not have continued in his role unless he attended a medical appointment prior to resuming his function. The Tribunal finds that it was reasonable for the respondent to request the claimant to attend a medical appointment but this should have been done prior to allowing him to continue after his retirement date but in his refusal to comply the claimant contributed substantially to his dismissal. More time should have been allowed by the respondent to discuss the matter and the meeting should have been followed up by correspondence. In the circumstances the claimant was unfairly dismissed. Taking all matters into account the Tribunal awards the claimant €5,000.00 under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)