Horan v CWS BOCO Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 07 November 2012
• Neutral Citation: [2012] IEHC 514
• Court: High Court
• Date: 07 November 2012

[2012] IEHC 514

THE HIGH COURT

[No. 795 S.P./2011]

Horan v CWS-Boco Irl Ltd

IN THE MATTER OF THE REDUNDANCY PAYMENTS ACTS 1967 TO 2007 AND IN THE MATTER OF AN APPEAL FROM DETERMINATION NO. RP1778/2010 OF THE EMPLOYMENT APPEALS TRIBUNAL AND IN THE MATTER OF AN APPEAL BY MICHAEL HORAN BETWEEN

MICHAEL HORAN

APPELLANT

AND

CWS - BOCO IRELAND LIMITED

RESPONDENT

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005 2 ILRM 437 2005/44/9152 2005 IESC 40

KERR TERMINATION OF EMPLOYMENT STATUTES 4ED 2009 I-79

REDUNDANCY PAYMENTS ACT 1967 S39(15)

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

WILTON v STEEL CO OF IRELAND LTD 1999 ELR 1 1998/34/13339

O'LEARY v MIN FOR TRANSPORT 1998 1 IR 558 1998/29/11433

IRISH SHIPPING LTD v ADAMS & ORS UNREP MURPHY 30.1.1987 1987/3/855

MIN FOR FINANCE v MCARDLE 2007 18 ELR 165 2007/40/8242 2007 IEHC 98

EMPLOYMENT LAW

Redundancy

Injury in service of employer - Certified unfitness to work - Labour Relations Commission proposal for closure of employer - Terms of agreement to be applied to persons certified as fit to return to work - Certification of appellant rejected and employment status maintained by company - Medical evidence - Role of tribunal - Role of court on review - Findings of fact fully considered by tribunal - Whether identifiable error of law - National University of Ireland v Ahern [2005] IESC 40, [2005] 2 ILRM 437; Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 539; Mulcahy v Waterford Leader Partnership Ltd [2002] ELR 12; Thompson v Tesco Ireland Ltd [2003] ELR 21; Wilton v Steel Company of Ireland Ltd [1999] ELR 1; O'Leary v Minister for Transport [1998] 1 IR 558; Irish Shipping v Adams (Unrep, Murphy J, 30/1/1987) and Minister for Finance v McArdle [2007] IEHC 98, (Unrep, Laffoy J, 22/3/2007) considered - Claim refused (2011/795SP- Murphy J - 7/11/2012) [2012] IEHC 514

Horan v CWS-Boco Ireland Ltd

Facts: An appeal against a decision of the EAT which had refused a claim under the Redundancy Payment Act 1967 - 2007. The claim was refused on the basis that the appellant remained an employee at the respondent company despite the claim that he had not received a letter rescinding a previous notice of redundancy; therefore there was no case to answer regarding cessation of employment.

Murphy J held it was not the function of the Court to re-weigh evidence already evaluated at first instance. The EAT's determination was based on a full consideration of both sides evidence; there was neither an identifiable error of law nor an unsustainable findings of fact.

Plaintiff's claim refused.

1 JUDGMENT of Mr. Justice Roderick Murphy delivered the 7th day of November 2012

2 1. By special summons dated the 2 ^nd December, 2011, the appellant claimed, inter alia, in relation to a determination of the Employment Appeals Tribunal (EAT) that there was sufficient evidence before the EAT on which it could properly find that the appellant's position with the rep company was made redundant with effect from the 27 ^th November, 2009.

3 2. It was the appellant's case that he commenced employment with the respondent in April 2003, as a delivery driver who undertook heavy work. In late 2008, and in the service of his employer, he suffered injury as a result of a road vehicle crash. He had since submitted medical certificates to the respondent stating he was unable to work from that date. The certificates were issued regularly and continued to be furnished to the respondent up to and beyond the appellant's application for redundancy.

4 In early November 2009, the Labour Relations Commission had published a proposal for the orderly closure of the respondent's predecessor at two locations including that at which the appellant had worked.

5 Under the title Redundancy Terms was the heading "Long Term Absence" which provided as follows:-

"On receiving a doctor's certificate confirming full fitness to return to work by the 27 ^th November, the company will apply the terms of this agreement. Other cases will be reviewed by the company on a person-by-person basis."

6 The appellant received a letter dated the 9 ^th November, 2009, stating his position with the respondent was being made redundant with effect from the 27 ^th November. On the same day (9 ^th November) the appellant obtained a medical certificate from his doctor stating that he was fit to return to work.

7 The appellant denied receiving a further letter dated the 12 ^th November, rescinding the information contained in the letter of the 9 ^th November and placed him in the long term absence category.

8 This certificate was not exhibited in the grounding affidavit of the appellant. The only exhibit was the determination of the Tribunal.

9 The Tribunal's decision was that since the respondent company maintained that the appellant was still an employee, there was no case to answer regarding the appellant's alleged cessation of employment and accordingly, concluded by majority decision that it found the claim under the Redundancy Payments Acts 1967 to 2007, failed.

3. Replying Affidavit

10 The replying affidavit of David Lennon, head of logistics of the respondent, referred to the medical certificate indicating that the respondent was fit to return to work from the 16 ^th November, 2009, (the "Return to Work Certificate"), notwithstanding that the respondent was already in receipt of a medical certificate dated the 2 ^nd November, 2009, in which it was clearly stated that the appellant was unable to work until the 2 ^nd December, 2009.

11 On receipt of the Return to Work Certificate the respondent wrote to the appellant by letter dated the 13 ^th November, 2009, asking him to attend the respondent company doctor for examination. On foot of that examination, on the 17 ^th November, 2009, an occupational health assessment, which was exhibited, was received by the respondent and forwarded to the appellant. The occupational health assessment included an update on the review of the appellant following his road accident. The assessment referred to the likelihood of recurrence and to the worsening of the appellant's neck injury. His symptoms were then beginning to appear. There was a high likelihood of recurrence. There were problems with his lower back which had improved following injections, but he could develop symptoms after walking. In relation to fitness for work, the assessment was that the appellant had complex serious of injuries, cervical pain, carpel tunnel of his left wrist and degeneration of his lower spine with some evidence of spinal stenosis.

12 It was the company doctor's opinion that the nature of the appellant's previous job which involved driving and significant manual handling with the pulling of heavy trollies with linen would exacerbate and worsen his problem. He declared that the appellant was unfit to go back to his job.

13 The "Return to Work Certificate" was not exhibited in Mr. Lennon's affidavit. The court also notes that the EAT stated that the certificate and the occupational health assessment had not been presented in evidence.

14 The further letter of the 12 ^th November, 2009, which the appellant said he did not receive referred to the letter of the 9 ^th November, three days earlier, being incorrectly sent to him which reported to give notice of redundancy and which had not been issued and was therefore withdrawn. The letter referred to the agreement with SIPTU concerning redundancy terms and had a specific clause for staff currently on long term absence which stated that "on receiving a doctor's certificate confirming full fitness to return to work by the 27 ^th November, 2009, the company will apply the terms of this agreement. Other cases will be reviewed on a case by case basis".

15 The letter continued:-

"As you are aware you have been absent from work since the 1 ^st February, 2008, and we would request that you would consider the terms of this agreement and provide us with an update on your medical condition no later than the 20 ^th November, 2009.

The company will continue to reserve the right to refer you to a company medical adviser for independent assessment if necessary."

16 Further letters were received by the appellant on the 29 ^th November, 2009, the first of which said that it was anticipated that "the ex gratia payment agreed as part of the LRC proposal will be paid by the 24 ^th December, 2009. At this time, the company will contact you to arrange for you to come in and collect your ex gratia payment cheque."

17 The second letter, entitled "To whom it may concern" confirmed that the appellant had been made redundant from Linen Supply of Ireland (the respondent's then trading name) on the 27 ^th November, 2009. It further stated that that redundancy had been made as a result of an extensive restructuring programme that the company unfortunately had to undertake and that "Michael's P45 would be issued on the 3 ^rdDecember, 2009".

4. Affidavit of Mr. Nagle

18 The affidavit of Anthony Nagle, solicitor for the appellant, sworn on the 8 ^th October, 2012, exhibited the file which had been given to the Tribunal by the appellant's Union representatives.

19 A list of contents referred to Form T1-A, RP50 Form, letters confirming redundancy on the 27 ^th November, 2009 and regarding annual leave, notice, salary and ex gratia payment also on the 27 ^th November, 2009. The contents also include Labour Relations document, email regarding non payment of redundancy, re-registration of the agreement, framework of the proposal for orderly closure, letter regarding proposed redundancies of the 9 ^th October, and notice of all relevant employees.

20 The Labour Relations Commission document is that dated the 4 ^th November, 2009,...