O'Neill v Shop Direct Ireland Ltd

JurisdictionIreland
CourtEmployment Appeal Tribunal (Ireland)
Judgment Date04 Nov 2005
Judgment citation (vLex)[2005] 11 JIEC 0401

Employment Appeals Tribunal

EAT: O'Neill v Shop Direct Ireland Limited

Abstract:

Employment law - EAT - Unfair dismissal - Injury at work - Whether respondent terminated employment - Mitigation - Whether claimant failed to mitigate loss - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:

CASE NO.

David O'Neill, 159 Allenview Heights, Newbridge, Co. Kildare

UD820/2004

MN650/2004

against

Shop Direct Ireland Limited, Cilldara Industrial Estate, Newbridge, Co. Kildare

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Mr E. Martin B.L.

Members:

Mr P. Pierce

Mr. N. Broughall

heard this claim at Naas on 11th July 2005

and 17th October 2005

Facts The claimant worked with the respondent for almost 8 years. He sustained a neck injury while at work. When he returned to work, the respondent contended that the role was causing the claimant stress and that he was not coping with the role. They discussed serious mistakes and explored alternative roles. On the next occasion, the respondent alleged that the claimant asked if they could investigate redundancy and the respondent put a package to the claimant which the claimant accepted. The claimant contended that he was dismissed.

Held by the Tribunal in awarding the claimant Eur5000 under the Unfair Dismissals Acts that it was the respondent who terminated the employment rather than the claimant. When the claimant returned to work he did so on foot of a medical certificate but had failed to adduce any efforts to sustain any light work from that date to the date of hearing.

The determination of the Tribunal was as follows:-
Claimants Evidence
1

The witness stated he was born on the 27th May 1967 and worked with the respondent company for almost 8 years (from July 1996 to April 2004) as a goods inward supervisor. In November 2003 he sustained a neck injury while at work and he was paid up to 12th February 2004. He also got disability benefit but this was not claimed until after 12th February 2004. He gave the respondent company a cheque for Eur1,667.10, letter shows this was on 29th march 2004. Thereafter he managed on disability benefit only. He went back to work due to financial difficulties. He spoke to his manager who told him he was going back to work and was informed that his manager (hereafter known as SH) would have to speak to him about his work performance. This was on the 31st March 2004 in the SH's office. The manager told him that they were not happy with his absenteeism, that he the claimant had missed the busiest part of the season; it's a seasonally busy job in particular leading up to Christmas. He was told he was not capable of doing his job, many irregularities had emerged during his absence, it transpired that the majority of these problems were from the November period. He was made no offer of they monitoring his performance as a Supervisor but rather told that he could stay on as a general operative. The claimant advised his SH he would have to consider the matter. His manager responded by saying that they could work out a severance package if he wanted, as if he decided to stay on, that they would have him out of there within a few months anyway. A second supervisor (hereafter known as GM) met him and directed him to work as a forklift driver. There was no offer to monitor his performance; he remained at that stage at the supervisor rate of pay. SH came back to him and offered...

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