Alcantara v Tesco Ireland Ltd

• Jurisdiction: Ireland
• Judgment Date: 19 March 2015
• Judgment citation (vLex): [2015] 3 JIEC 1902
• Date: 19 March 2015
• Docket Number: UD1521/2013
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. UD1521/2013

CLAIM OF:

Gabriel Alcantara

Claimant

and

Tesco Ireland Limited

Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr. C. Corcoran B.L.

Members: Mr. A. O'Mara

Mr. F. Barry

heard this claim at Dublin on 15th January 2015 and 19th March 2015

Background:

1 The respondent representative contends that the case is one whereby the Claimant dismissed himself. The Claimant ceased communicating with the respondent. The Claimant representative contends that the Claimant was on long term sick leave and was giving his sick certificates to the respondent and that there was a termination of employment.

Respondent's case:

2 The Tribunal heard evidence from BH the HR manager for the respondent store. He worked from the Donabate distribution centre. He had no direct contact with employees excepting with the Claimant as he was on long term sick leave and to facilitate his return to work. The Claimant was on sick leave because he had a domestic accident in which he broke his hand. The Claimant worked as a general operative. The bulk of the G.O. work involves orders assembly and driving a low level order picker (LLOP). The use of hands is vital to the work.

3 The witness explained that if an employee is out sick for more than three days they meet the employee to see when they are likely to return and if an employee is out for more than four weeks they "go into a different intervention". The Claimant went to the company doctor. They offered the Claimant a medical leave of absence. The witness explained that the Claimant was concerned that he would lose his social welfare allowances (for whatever reasons) and he (the witness) contacted the department of social protection andthey told him that as long as the Claimant produced his medical certs he would not lose his allowance. The Claimant took leave of absence. At the end of the period of absence the respondent required the Claimant to contact them but he did not. Hr wrote to the Claimant by ordinary and registered post on 06^th March 2013. The Claimant did eventually contact him and he did speak to the Claimant. The Claimant confirmed that he had not had an operation on his hand. During a conversion with the Claimant because of the way the conversation was going he asked the Claimant if he was going to resign and the Claimant told him that he was not because he would lose his SW allowance. The Claimant said to him "could you not just terminate" his contract and he told him that he could not because he had no basis for doing that.

4 In cross exam the witness told the Tribunal that the Claimant told him that he did not want to have an operation (on his hand) and the Claimant told him that he did not want to return to work.

5 The representative for the Claimant attempted to open a medical report and this was objected to by the Claimant representative and there was some discussion and direction from the Chair of the Tribunal. The representative for the Claimant asked for MS...