Leahy v Glanbia




Employment law - Unfair dismissal - Constructive dismissal - Safe system of work - Whether employee unfairly dismissed - Whether amount awarded by Employment Appeals Tribunal too low - Unfair Dismissals Act, 1977 to 2001.

Facts: The applicant had been employed by the respondent and during his employment had brought proceedings over an injuries suffered at work. The applicant was successful in obtaining damages. Some time afterwards the applicant was certified by his doctor as being sick. The respondent requested the applicant to attend with the company doctor who certified the applicant as being unfit for work. The applicant contested this but a second examination by the company doctor reached the same conclusion. The applicant however obtained a doctor’s report that he was fit for work. Eventually a solicitor for the applicant wrote to the company regarding the situation but no response was received. Thereafter the applicant brought proceedings before the Employment Appeals Tribunal (the "EAT") who found that the applicant had been constructively dismissed and awarded him EUR2,690. The applicant appealed against the award on the basis of it being too low.

Held by Judge McMahon in awarding 30,000 Euro to the claimant. The company had a duty to discuss the situation with the applicant. The company could have sought further medical opinion to clarify matters. The applicant had acted reasonably in considering himself dismissed. The award of the EAT was too low.


Judgment of His Honour Judge Bryan McMahon delivered on the 11th December, 2002 at Limerick.


The applicant Mr Leahy took up employment with his employer in 1979. His job involved driving a lorry and manually lifting pallets from his lorry into the premises of his employer’s customers. In around 1997, Mr Leahy injured his back when making a delivery and he issued proceedings against his employer, claiming that the employer was in breach of his duty of care in failing to provide proper training, proper equipment, and a proper system of work. These proceedings were eventually compromised in November 2000 when the employer paid the sum of £57,500 to Mr. Leahy. The employee then went back to work at the same job and was able to carry out his required tasks, greatly assisted, no doubt, by the introduction after the accident, but before the settlement, of a motorised unit which appreciably reduced the manual element in lifting the pallets.


In January 2001, some six to eight weeks after the settlement, Mr Leahy was absent from work for a week. He produced a medical certificate from his GP, confirming that he had been suffering from a chest infection and had been on a course of antibiotics. On receipt of this the company, through Mr Spillane (the human resource manager), requested Mr Leahy to present himself to Dr Deasy (the company


doctor) for examination. Dr Deasy examined Mr Leahy on the 30th January, 2001, and furnished a report to the company that Mr Leahy was unfit for work because of his back injury. Mr Leahy was unhappy with this, stating that his absence had nothing to do with his back, and when he raised the matter some short time later with Mr Spillane, Mr Leahy said that Mr Spillane resisted the suggestion of a second examination with the comment “What’s the point?” Mr Leahy continued to claim that he was fully fit for work and that he had the support of his GP in asserting this.


Dr. Deasy’s first report was based on his clinical examination of Mr. Leahy. At that time, Dr Deasy did not have available to him the scan report or the MRI report which had been available for the settlement discussions held scarcely two months prior to this. After some initial delay, the employer eventually agreed that Dr. Deasy should carry out a second examination. At this examination, in March 2001, Dr Deasy found from his clinical examination that Mr Leahy presented with no abnormalities. He nevertheless still found Mr Leahy unfit for work, this time basing his opinion on the scans and the MRI reports which by this time were available to him. Mr.Leahy was still not satisfied and he got the opinion of Mr. Meehan, a retired orthopaedic surgeon, who, although he found some degenerative changes in the plaintiffs back, was not in any doubt that Mr Leahy was fit for work.


When the employer got Dr. Deasy’s first report on 30th January 2001, it accepted that Mr Leahy was unfit for work and followed the sickness provisions of the agreement signed with the unions, and accepted by Mr Leahy, some time previously. This provided for full pay for the first six weeks out, and half pay for the next six weeks. When Mr Leahy was into this second six week period, his pay dropped dramatically so that he was only getting between thirty and forty pounds a week from the company. When he enquired from his employers about this, Mr Spillane said that the company expected Mr Leahy to draw his social welfare entitlements, and that the company’s obligation was only to top-up the social welfare payments that Mr Leahy was entitled to, to half his wage. When Mr. Leahy indicated that he was not entitled to any social welfare payments, because his doctor had said that he was fit for work, the company spokesman said that was none of its business.


Approaches were made by union representatives to the company, but Mr Spillane, for the company, indicated that there was nothing that the company could do as the company doctor deemed Mr Leahy unfit. Further, Mr Leahy said that when he


approached his union, the shop steward said that the union could not get involved when “there were doctors involved”


This left Mr Leahy in a pickle. The company’s doctor deemed him unfit; his own doctors deemed him fit and, accordingly, he could not draw unemployment benefit and he was only getting a pittance from the company for the second six week period he was out. Further, the future looked bleaker, as, after that second six-week period had expired, the company would be under no obligation to pay him anything. And all the while the plaintiff claimed he was fully fit for his work.


Confronted with these problems, Mr Leahy consulted his solicitor, who then wrote to the company on his behalf on 14h March, 2001. The company failed...

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