EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Catherine Mulligan, UD327/2012
Tesco Ireland Limited,
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. F. Murphy
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Castlebar on 16th October 2013, 27th January 2014 and 28th January 2014
Mr Ciaran Campbell, Mandate Trade Union, Mary Street, Galway
Mr Eamonn McCoy, IR/HR Executive,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The respondent is a large multi store retail outlet and the claimant was employed by them from 5th April 1982 until she was dismissed on 20th November 2011. The claimant had worked in a number of different stores and progressed through the ranks to the position of Store Manager in a particular store. In 2009 the claimant was offered and accepted a new position on a secondment basis. There was a guarantee given at the time of taking up this position that the claimant could return to a Store Manager position but not necessarily in the store she had left. The company has a policy of moving Store Managers between stores from time to time and this policy is put into practice.
An issue arose when on completing her secondment the claimant was not re-assigned to the store she had previously worked in. The claimant went out on sick leave and did not return to work or indicate a date on which she would be fit to resume work. The respondent afforded the claimant a number of opportunities to indicate a return to work date and made it clear to her that failure to do so or not to return to work could result in her dismissal.
It was the respondent’s position that the claimant had frustrated her contract of employment and that they had no option but to dismiss her.
The claimant lodged an appeal with the respondent and having heard her appeal the respondent offered the claimant an opportunity to return to work as a Store Manager in a store within one hour of her home. The claimant was given 4 weeks to respond to this offer. Subsequently within 4 weeks of this letter the claimant replied stating that the proposed terms were unacceptable. The respondent took this to mean that the claimant accepted the original decision to dismiss her and wrote to her confirming this position.
The claimant was given to believe that the Store Manager position she had left to take up the secondment position would be hers to return to. Although she was never told that she would be returning to that job the Area Manager had previously told her that the job was hers for as long as she wanted.
When the claimant attended the company doctor on 14th March 2011 it was found that she was unfit to resume work at that time and the doctor could not give a time frame for when she was likely to be fit given that having to drive to a store further from her home could be the cause of her stress. The claimant told the Tribunal that she agreed with this assessment by the doctor and that she would not return to work unless the respondent gave her a position that she deemed suitable.
It was the claimant’s position that she was unfairly dismissed on the basis that the respondent failed to facilitate her return to work.
It must be noted that the claimant was a valued and valuable employee to the respondent for all of twenty eight years with an unblemished record. However the following points have to be considered:
The policy and practice in the respondent company is that managers are moved around to different stores during their careers. The claimant herself had moved around previously and there was a mobility clause in the claimant’s contract of employment.
The claimant having been on sick leave for a considerable period of time was offered ample opportunity to indicate to the respondent a likely date of return to work. However no such date was ever given and indeed the issue for the claimant seemed not to be her fitness to return to work but rather her desire to return to the store in which she worked prior to taking up another position, albeit on secondment. The tribunal is satisfied that the respondent was fair and reasonable in reaching the decision to dismiss the claimant on the basis of frustration of the employment contract by the claimant.
Accordingly the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 To 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal