Roulston v C.S. Kelly & Company

• Jurisdiction: Ireland
• Judgment Date: 20 September 2005
• Judgment citation (vLex): [2005] 9 JIEC 2001
• Date: 20 September 2005
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Roulston v C.S. Kelly & Co.

Abstract:

Unfair dismissal - Sick leave - Whether the claimant was unfairly dismissed - Unfair Dismissals Acts, 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:	CASE NO.
Hilary Roulston, Gortree, Newtowncunningham, Co. Donegal	UD587/2004
	MN492/2004

against

C.S. Kelly & Co., Market House, Buncrana, Co. Donegal

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 M. Gilvarty
Members:	Mr. D. Morrison
	Mr. M. Mc Garry

heard this claim at Letterkenny on 18th January 2005 and 18th April 2005

Facts The claimant was employed as a legal secretary by one of two partners, who owned the respondent business. The claimant informed the two partners at a meeting in April 2003 that she required long term sick leave. The claimant submitted a number of medical certificates and numerous correspondence ensued between the parties. When the claimant was fit to return to work she requested work on a part- time basis but was refused and her employment was terminated. The claimant's employer stated that the main problem with the claimant was her unwillingness to return to work on a full-time basis. The partner in the respondent business gave evidence that he understood from the April meeting that the claimant had left her employment and would not be returning. He stated that the claimant was not prepared to return to work unless on a part-time basis.

Held by the Tribunal in dismissing the claim: That the claimant's employment was terminated due to the fact that she refused to return to work on a full time basis and therefore she was not unfairly dismissed.

The determination of the Tribunal was as follows:-

1 At the outset it was Determined that the Tribunal could hear the case as the claimant bad filed her claim with the Rights Commissioner within time before filing it with the Employment Appeals Tribunal.

Claimant's case

2 The claimant stated that she had commenced employment with the respondent on October it 1989 as a legal secretary to one of the two partners who owned the business. She had no dealings with the other partner of the business and stated that she had never received any verbal or written warnings or a copy of the disciplinary procedure.

3 Mound April 2000 the claimant began to feel unwell, suffering from anxiety and stress. She spoke to her employer, the partner she worked for, and it was agreed that she would take time off every Wednesday afternoon to attend a consultant and that she would make up this time during the week. To April 2003 the claimant's doctor advised her that she should take a period of long-term sick leave from her employment. She approached her employer and explained tat she would have to take long-term leave and would return to work after a couple of months. He replied that he would have to discuss it with the other partner in the business.

4 On April 24th 2003 the claimant was called to a meeting with the two partners of the business. She was given no advance warning of the meeting. The second partner said to her “you don't really want to be here, do you?” The claimant said that they knew she was feeling unwell and she was very upset and intimidated by the comment made. She said that she did not recollect what was said at the short meeting but that she may have used abusive language before she left to go to her office and collect her handbag, coat and a personal file she would need while on sick leave. She left other personal belongings behind. She spoke to the receptionist before she left and told her on two occasions that she was feeling unwell and was going home. She was tearful when leaving. She later sent in a medical certificate to cover her for the...