Campbell v Donal McMonagail Agus A Mhic Teoranta

• Jurisdiction: Ireland
• Judgment Date: 31 May 2016
• Judgment citation (vLex): [2016] 5 JIEC 3103
• Date: 31 May 2016
• Docket Number: UD3/2014
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. UD3/2014

CLAIM OF:

Sean Campbell

Claimant

and

Donal McMonagail Agus A Mhic Teoranta

Respondent

Representation:

Claimant: Ms Mairin McCartney, Gallagher McCartney, Solicitors, New Row, Donegal Town, Co Donegal

Respondent: Ken Stafford, 7 Castletown Court, Celbridge, Co. Kildare

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

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 31 ^st May 2016

Preliminary Applications:

1 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 15 ^th of October 2013 stated, but the claimant continued to engage with the respondent post this date and even attended a medical assessment on the 17 ^th of December 2013.

2 The claimant was constructively dismissed while on sick leave. The last correspondence sent to the respondent was dated the 15 ^th of October 2013; there was no response to this letter. By letter of the 6 ^th of December 2013 the claimant notified the respondent that he considered himself to be constructively dismissed as there was no response/action to the 15 ^th 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 17 ^th of December but this was post termination of employment.

3 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 6 ^th 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:

4 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 6 ^th 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:

5 The claimant gave evidence. He was employed from the 29 ^th 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.

6 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.

7 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.

8 On the 13 ^th 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 11 ^th August 2012 with the respondent.

9 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.

10 On the 24 ^th 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.

11 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...