EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD677/2015
CLAIM OF:
Marcelo Batista
Against
Dunleavy Meats Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Sligo on 17th October 2016 and 16th February 2017
and 17th February 2017
Representation:
_____________
Claimant: Mr Liam Bell B.L. instructed by, Catherine Allison & Co, Solicitors,
6 Roden Place, Dundalk, Co Louth
Respondent: Ms Grainne Quinn B.L. instructed by, Liam J Sheridan & Co Solicitors,
The D-Mek Centre, Teeling Street, Ballina, Co. Mayo
Background:
The Tribunal has carefully considered the evidence adduced over the course of three days of hearing. The claimant brought a claim under the Unfair Dismissals legislation with respect to the termination of his employment which he stated occurred on 26th May 2015. The respondent company denied the fact that a termination took place so the burden of proof rests with the claimant to demonstrate that he was constructively or otherwise dismissed.
Claimant’s case:
The claimant MB was employed as a boning-hall manager with the respondent meat processor.
He told the Tribunal that an accident occurred on Wednesday 29th April 2015 when he damaged the upper part of his thumb on a band saw. He stated that he was not allowed to go to the doctor, the wound was bandaged and he continued to work. Over that weekend he felt unwell, visited his doctor on the Monday but was told he wouldn’t be seen until Wednesday 5th May.
He contacted his solicitor who wrote to the respondent on 18th May 2015. He was certified sick at this time and on 26th May went to the office with a certificate. K in the office called JD PB and Ml and they met with the claimant. Ml insisted there was nothing wrong with his thumb but he was not allowed return to work. MB said he got a fitness to return to work certificate on 26th July for a return on 27th July but again was not allowed to return and given three consent forms regarding his fitness to return and told to go home. This was when he considered himself dismissed.
MB said that everything with the employer had been 100% up to the 29th April. He had spoken to PB about problems with a cataract and PB had helped him secure an early appointment with the hospital. He did get stressed after the accident and had needed some medical assistance with that as well.
Under cross examination he said that there was no sick pay policy, he had previously asked for a pay raise, and conceded that the respondent can look for an independent medical assessment prior to a return to work. Asked why his previous employment ended he said it was due to a back injury. He did not use any grievance procedure.
He was unsure of the date of his eye surgery but his final appointment was in December 2016.
Asked if he told his employer that he was feeling depressed he said, no, he was upset about the eye surgery. He agreed that there was an issue prior to the 29th April regarding meat specifications and he was to meet with JD on his return from meeting clients in France.
Respondent’s case:
JD told the Tribunal that his company employed 70/75 staff and MB approached him for a job.
They talked all the time and had had a good relationship. An issue arose where a customer in France was unhappy with a product and JD had to travel over. He spoke with the claimant about it prior to going and said that the conversation got very heated. JD told him to calm down, it was just a chat, he couldn’t understand what the claimant’s problem was at the time. The claimant did mention going to a solicitor, JD said again they would talk on his return.
Under cross examination JD told the Tribunal that the claimant was never dismissed or told he was fired by anyone. He was very surprised to receive a letter dated May 18th stating that someone had called to the claimant’s home, he stated that he never called to his home unless invited to do so. His position was always kept open, all the respondent wanted was fit to return to work certificates from MB to say his issues with his eye, his depression and his finger were all clear.
It was untrue that he was not allowed to go the doctor, the respondent would always bring any employee themselves. JD said it very quickly got to a stage where the claimant’s representative was looking for a financial settlement, the matter was referred to the insurance company and matters were dealt with through legal channels. The matter of a disciplinary was not ever meant to be a disciplinary, just a chat. There may have been some confusion over the wording in the latter drafted by PB.
PB told the Tribunal that he looked after health and safety and H.R. with the respondent. He said that health and safety were a big issue for the company as people worked with sharp instruments, saws and knives. Prior to his accident MB told him of an eye problem after he had been to an eye specialist and said there was a two year waiting list, he also admitted to having difficulty sleeping and had an appointment with a psychologist as well. PB rang the hospital for him and got his eye procedures arranged because of his position at work. A pre assessment was booked for 22nd May.
On 26th May PB met the claimant in the car park and he said he was coming back to work. PB asked if he had a fitness to return to work certificate and the claimant said “no”. The met MD and both confirmed with the claimant that he needed a fitness to return to work certificate. His solicitors letter had been received at this time and the respondent needed clarification of some of the issues raised, like who was calling to his house, why did he think he was he being bullied etc,.
PB said the claimant was never dismissed, the respondent never got final certificates or fit for resume certificates for his eye problem or from his psychologist. He stated that the respondents concern was for the claimant and any incident that occurred, if it was because of his eye issue or his mental health, could have serious consequences for both parties.
Determination:
The Tribunal has carefully considered the sworn evidence adduced in this matter. There was much conflicting evidence heard. However, what is very clear from the evidence is that, firstly, prior to the Claimants accident, the Claimant and the Respondent enjoyed a very good working relationship and secondly, this relationship deteriorated rapidly thereafter.
In a claim for Constructive Dismissal the question of dismissal must always be considered under two headings, firstly Entitlement and secondly, Reasonableness. In both cases the determination must be in response to an employer’s conduct and furthermore, the employee show that the employer acted unreasonably.
In this case, the Claimant handed in his sick certificates while he was absent from work but when he attempted to return to work, the Respondent sought medical certificates in relation to matters which were not on the medical certificates handed in by the claimant. In other words, the gaol post kept changing in respect of certificates required by the Respondent prior to allowing the Claimant return to work. In the circumstances, the Tribunal finds that the claimant had reasonable cause to consider himself dismissed.
However, the Tribunal also find that the Claimant contributed substantially to his own dismissal by not engaging or providing the fitness to return to work certificate, as required by the Respondent, in respect of the ailment for which he was absent from work. In addition, the claimant gave evidence that while he secured work with Liffey Meats thereafter, he voluntarily left same of his own volition.
In the circumstances, the Tribunal considers an award of €4,000 (four thousand five hundred euro) as reasonable in all the circumstances under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)