EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD3/2014
CLAIM OF:
Sean Campbell
- Claimant
against
Donal McMonagail Agus A Mhic Teoranta
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 16th November 2015and 8th February 2016 and 9th February 2016 and 31st May 2016
Representation:
Claimant: Ms Mairin McCartney, Gallagher McCartney, Solicitors, New Row, Donegal Town, Co Donegal
Respondent: Ken Stafford, 7 Castletown Court, Celbridge, Co. Kildare
Preliminary Applications:
The first of the respondent’s preliminary applications is that the finish date is wrong on the claim form. There is a finish date of the 15th of October 2013 stated, but the claimant continued to engage with the respondent post this date and even attended a medical assessment on the 17th of December 2013.
The claimant was constructively dismissed while on sick leave. The last correspondence sent to the respondent was dated the 15th of October 2013; there was no response to this letter. By letter of the 6th of December 2013 the claimant notified the respondent that he considered himself to be constructively dismissed as there was no response/action to the 15th of October letter. As the claimant was on sick leave, the date of his last correspondence was selected as the termination date as his end date is ambiguous. He did attend the medical assessment on the 17th of December but this was post termination of employment.
The second application is that the claimant never submitted a resignation letter to the respondent and therefore he cannot take a constructive dismissal case. By letter of the 6th of December 2013 the claimant notified the respondent that he considered himself to be constructively dismissed. “As you have failed to arrange the medical appointment or roster our client for work our client has no option but to treat your failure as constructive dismissal.”
Preliminary Determination:
The Tribunal is of the view that in the case where a claimant is constructively dismissed while on sick leave the finish date can be unclear. This does not preclude the Tribunal from hearing the case. By letter of the 6th of December the claimant made it clear that he considered himself to be constructively dismissed, even if he did attend a further medical appointment. The Tribunal therefore accept jurisdiction to hear this case.
Substantive Issue:
Claimant’s Case:
The claimant gave evidence. He was employed from the 29th September 2003 as a truck driver for the respondent’s stone company transferring consignments of stone products from a number of quarries to the respondent’s clients located within the 32 counties. These heavy consignments of stone products were loaded by forklift onto his truck and removed on the client’s site by forklift / digger or tipped out. The claimant explained that there was no heavy manual work on his part other than to open the aluminium side doors of the truck.
The claimant told the Tribunal that thirty years previous he had undergone two surgeries on his back for nerve damage. These surgeries had been successful but since that time he had taken extreme care not to aggravate his back with heavy manual work.
In January 2012 he, and his colleagues, were notified by the respondent that they were reducing the number of trucks to 2 or 3 in order to reduce costs and improve efficiencies. The claimant told the Tribunal that the owner of the respondent company asked him if he wished to buy the company truck he was driving and become a sub-contractor. The claimant declined the offer.
On the 13th April 2012 he had surgery on his knee and was absent from work on certified medical leave until December 2012, submitting medical certificates to the respondent and the Department of Social Protection. However, while on certified sick leave he attended a training course, which did not involve driving, on the 11th August 2012 with the respondent.
In December 2012 the claimant contacted the HR Manager (JL) to inform her he had attended his doctor and was obtaining a second opinion regarding his knee and his fitness to return to work. JL advised him to get back to her after the Christmas period.
On the 24th January 2013 the respondent wrote to the claimant requesting a “fit to resume work” certificate as the claimant had previously informed him his doctor had told him he could go back to work. The claimant attended his doctor, obtained the requested certificate and went to the respondent’s office to give the certificate to JL. On his arrival a colleague, (D) informed him JL was absent on maternity leave. The claimant gave the certificate to D and left. He later contacted a Director of the company (DMM) and requested to meet him.
Some time later he met DMM and informed him of the letter he had received from JL. DMM said he was unaware of its contents and asked to read it. DMM then informed him that things were very quiet at the moment and offered him two options when returning to work – work in the quarry or work on the guillotine. The claimant explained to DMM that due to his previous back surgery he was unable to perform heavy manual work. DMM responded by saying it was “a young man’s game” and told him the work rosters were completed until April because of JL’s maternity leave. DMM told the claimant to contact him again in April to discuss the matter further.
In April 2013 the claimant tried (on numerous occasions) to contact DMM directly but to no avail. He contacted the office and left messages with the office staff for DMM to contact him but this never happened either. During this time the claimant was made aware the work rosters had been drawn up until July 2013 and his name did not appear on them. The claimant told the Tribunal that the whole matter took a toll on his health and he attended his doctor. He was diagnosed with depression, prescribed medication and was in receipt of illness benefit. He contacted his solicitor for advice. On the 12th July 2013 the claimant’s solicitor wrote to the respondent, the respondent replied two days later.
He wrote to the respondent enclosing a medical certificate confirming he was fit to resume work as a driver but unable to engage in any heavy physical work because of a previous back injury and requested that he would be rostered for driving duties. When he did not receive a reply his solicitor wrote again on the 30th July 2013.
On the 14th August 2013 the respondent wrote to the claimant requesting a detailed report from his doctor. Correspondence crossed between the respondent, the claimant and the claimant’s solicitor. (All correspondence was opened to the Tribunal)
In December 2013 the claimant attended the company doctor, as was requested of him. He attended the premises in Dublin on the 17th December 2013. However, having asked him his details and why he was there the doctor declined carrying out any physical examination saying he, the claimant, had been “set up”.
The respondent never contacted him again.
The claimant gave evidence of his efforts to mitigate his loss or earnings since his employment with the respondent ceased.
On cross examination he stated that in the ten years he had worked for the respondent he had never carried out any heavy physical work. He agreed he had not informed the respondent at his initial interview of his back surgery years previously.
When asked, the claimant explained that his doctor, Dr. B, had not physically examined him before issuing the final medical certificates which the claimant gave to the respondent and the Department of Social Protection.
When put to him regarding the conversation he had with DMM in January 2013 he said that they had discussed work but agreed they had discussed another non-work related matter. He refuted there was heavy manual work involved in his duties as a truck driver and denied he was offered any other positions within the respondent company other than in the quarry and on the guillotine.
When put to him he agreed another haulier (CL) had contacted him regarding a position as a driver in his company. CL had contacted him while he was absent on certified sick leave from the respondent. He met CL and discussed the job on offer. CL told him to consider the offer and get back to him. The claimant told the Tribunal that he tried on at least three occasions to contact CL but to no avail. CL did not contact him again either.
The claimant explained that he was asked by a Director in the respondent company, but could not remember who, to acquire a tachograph card. He did, at his own expense, in June 2012. However, he never had cause to use it while driving the truck before he was absent on sick leave.
When put to him that there had been work available for him within the respondent company he replied that no-one had contacted him to offer it to him. The only options he was given was by DMM in January 2013.
The claimant gave evidence of loss and told the Tribunal that he remained on illness benefit until commencing a new job on 24th February 2014.
Respondent’s Case:
CL, the haulier who had spoken to the claimant regarding new employment, gave evidence. He explained that he had set up a new haulage business in the area and was seeking new drivers. He asked around and was given the claimant’s number by a colleague of his. He contacted the claimant and they discussed the matter. CL told the claimant of two potential contracts he may secure. CL told the claimant to go away and consider his offer and contact him when he had made a decision. When the claimant had not contacted him, CL rang DMM for a reference. DMM informed CL that the claimant was still an employee of his, albeit he was on sick leave. CL told the Tribunal that he apologised to DMM for contacting the claimant regarding the job.
On cross examination he said that he had not received any missed calls from the claimant but could not recall if he had stored the claimant’s number on his phone. CL also explained that his voicemail messenger was not activated on his mobile phone and therefore could not have received any voice messages from the claimant.
JL, the HR Manager, gave evidence. She explained that at the time in question the respondent had approximately 100 employees with six truck drivers, including the claimant. She also explained that she had left the employment of the respondent at the end of January 2013.
In January 2012 she sent a letter to all staff, including the claimant, regarding the respondent’s plans for 2012 including cost cutting and the company’s need to run more efficiently.
In December 2012 the claimant contacted her informing her that his doctor had found he was fit to resume work. JL told the claimant that he had not submitted a certificate to that effect and therefore was still deemed unfit for work. JL told him to contact her again after the Christmas period.
In early January 2013 the claimant contacted her and again told her he was fit to resume work. JL told the Tribunal that again she told the claimant that he had to submit a fit to resume medical certificate.
When no certificate was submitted JL wrote to the claimant on the 24th January 2013 to explain the situation. (this letter was opened to the Tribunal) JL explained to the Tribunal that it was a “catch 22” situation, the claimant could not be rostered until he submitted the required medical certificates and, she felt, the claimant did not want to cease the benefit he received until he was rostered for work. JL explained that as she was to commence her maternity leave soon after and the driving rosters were completed until April, the claimant was not included in them. However, JL told the Tribunal that other work would have been available for the claimant had he returned to the workplace.
DMM (director) told the Tribunal that the claimant’s position of lorry driver was more than just driving, it involved some heavier duties like moving stone on the lorry and making it secure. The claimant called to the business around February 2013 and chatted with DMM about various things including a return to work. DMM explained that he did not have a full time driving job available but there was production work available on a piece rate.
The claimant called in April to say he had been offered a job with another company and DMM told him that there was still no full time driving role, there was other work available but if he wanted driving only then take the other work if it was more suitable for him.
The respondent received a fit to return medical certificate in July 2013, stating that claimant was fit to return as a driver but was obviously unable to engage in any heavy physical work and correspondence began through the claimant’s solicitor at the end of July. The respondent advised the claimant that (as per his contract of employment) he could be asked to do alternative work to suit the needs of the company. They also looked for a detailed report on his condition, which was never received, but the claimant’s solicitor requested an independent medical assessment in late August.
DMM said that JL was due to return from maternity leave towards the end of September so it was left for her to do the referral. JL did not return to work for personal reasons and DMM said that as the respondent relied heavily on her for HR practice he was unsure of how to proceed. His insurers gave him the name of an independent company doctor for a medical assessment which was set for early December. DMM admitted the process took some time and said it was his fault because of the circumstances he had found himself in.
The assessment did not take place as the doctor in question was told by the claimant that he was in litigation with the respondent. DMM said the first he heard about litigation was from the doctor.
Determination:
Dissenting opinion: Mr Des Morrison
This is a case of constructive dismissal and therefore it is for the claimant to prove that the employer was guilty of unreasonable conduct amounting to a breach of contract.
The claimant’s position of lorry driver involved the moving of stone and heavy materials. He was advised of the need to provide a fitness to return to work certificate in January 2013. The respondent only received a fit to resume certificate in July 2103 but it was for driving/light duties only. He was advised that no full time “driving only” job was available but alternative employment on production or in the quarry was available. His contract states that while he was employed mainly as a driver he may be asked to perform other duties. It also states that the respondent may refer any case to a doctor nominated by the company for a medical examination.
All employees were written to in January 2012 and advised that the amount of lorries on the road would be significantly reduced, redundancies were not an option as drivers could work in other areas of the company but the claimant continued to seek to resume work only as a driver.
The respondent continued to request a certificate of full fitness to work, not just for driving/light duties, as they had a duty of care to the claimant. Ongoing correspondence with the claimant’s legal representative continued through September and October and a doctors appointment was arranged for him in December 2013. While there was some delay in the final few months of the process I cannot find any substantial grounds that a dismissal took place in this case because:
1) The claimant frustrated his own contract by not sending in a doctor’s certificate to be fully fit to return to work, despite being requested to do so by the respondent.
2) He attended for a company doctors appointment in Dublin on 17th December 2013 after the date of alleged dismissal letter of 6th December 2013.
3) The claimant was on long term sick leave at the date of the alleged constructive dismissal.
Majority decision:
The Tribunal carefully considered the evidence adduced. The Tribunal accepts that the claimant was keen to return to work from January 2013 but his fitness to return became apparent to the respondent in June 2013. The respondent accepted that they would arrange for the claimant to be independently medically accessed by way of a letter dated 30th September 2013.
The Tribunal are satisfied that it was reasonable for the respondent to require proof of fitness to return to work, however once they took on that responsibility they were under an obligation to complete that process within a reasonable period of time.
The failure to arrange a medical assessment between 30th September and 8th December 2013 amounts to constructive dismissal in all the circumstances.
The Tribunal further finds that the termination date was/could not have been October 15th as claimed by the claimant on his complaint form to the Employment Appeals Tribunal. His representatives were still seeking an assessment in their letter of that date but finally confirmed their intentions on 6th December so a date of early December would be deemed appropriate.
On calculating loss the Tribunal considers an award of €14,370.00 to be appropriate in all the circumstances. The claimant was on illness benefit until he took up a new position in February 2014 and therefore his loss runs from this point.
His loss is made up of 10 months in 2014 and 11 months in 2015. The breakdown of the figure awarded is calculated as being €10795.00 based on 21 months at €127.00 per week. To be added to this amount is his pension loss of €3412.50 based on the employers contribution to his pension.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)