Hayes v Boliden Tara Mines Ltd

• Jurisdiction: Ireland
• Judgment Date: 19 May 2015
• Judgment citation (vLex): [2015] 5 JIEC 1901
• Docket Number: UD1218/2014
• Date: 19 May 2015
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. UD1218/2014

CLAIM(S) OF:

William Hayes

(claimant)

and

Boliden Tara Mines Limited

(respondent)

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms J. McGovern B.L.

Members: Mr. J. O'Neill

Mr N. Dowling

heard this claim at Dublin on 19th May 2015

1 The determination of the Tribunal was as follows:

Summary of evidence

Respondents Case

2 The respondent is a mining company which primarily operates an underground lead and zinc mine. EOH, the HR manager gave evidence on behalf of the respondent. The claimant was employed by the respondent from 21^st January 2001 until 30th June 2014 as a miner. The claimant was on certified sick leave from December 2009 to 30^th June 2014, the date of dismissal. His duties were of a physical nature and included blasting rock, driving, carving out the face of the mine etc. The role by its nature is hazardous given the environment therefore the respondent faces increased health and safety challenges. Due to the nature of the work it is relatively common that employees get injured however the claimant had a high level of injury during the course of his employment which caused some concern for the respondent. On 10^th June 2009 the claimant suffered a significant injury at work which required an extended absence. He returned to work on 24^th August 2009 for approximately 8 weeks but had to take further sick leave until December 2009. The HR Manager told the Tribunal that since December 2009 the claimant was certified by his GP as unfit for full duties as a result of the June 2009 accident. A long period of certified absence followed and then in March 2011 the claimant wrote to the respondent making himself available to return to work to carry out light duties. The respondent replied on 30^th March, 2011 stating that given the claimant's current circumstances that it was not possible to offer alternative work at that point. EOH gave evidence about the respondent's 'alternative duty' policy and stated that following a work place accident employees can avail of alternative duty, where available, for a period of 10 days. Thereafter, any extended course of 'alternative duty' is subject to review and/or decided on a case by case basis. When queried by the Tribunal as to whether 'light duty' was the same as 'alternative duties' given the terms were used interchangeably the witness seemed to think that they were the same.

3 EOH stated that the claimant was never certified fit to return to work on full duties by either his own GP or the company doctor. The only person that could certify him fit to return to work on some sort of long term alternative duty is the company doctor. Even if this is done EOH maintained that a vacancy must be available in this regard. He stated that he does not believe the company is under an obligation to create a role for an employee in this situation

4 Following assessments by the respondent's company doctor and a number of interactions between the claimant and the respondent a meeting took place on 18^th December2013. This meeting was adjourned at the request of the claimant's union representative and a second meeting took place on 27^th January 2014. At this meeting the claimant requested a return to work to perform alternative/light duties. As the claimant's doctor had not passed him fit to resume normal duties it was agreed that he would attend a company nominated medical expert to assess the claimant's fitness to return to work. The claimant attended Doctor Moran on 10^th February, 2014 and again on 27^th March, 2014. Dr Moran subsequently delivered his substantive report dated 27^th March 2014. On foot of this report the respondent relied on the fact that Doctor Moran concluded that the claimant "was not fit to resume mining duties and is not fit for alternative work duties that require physical or manual handling tasks for normal shift hours". EOH stated that there was no suitable alternative work for the...