EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Derek Orr UD1438/2013
Celbridge Taverns Limited (In Receivership)
Alladdin Associates Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Ms J. Winters
Mr P. Trehy
heard this claim at Dublin on 12th December 2014 and 27th February 2015
Mr. Peter Connolly, Peter Connolly, Solicitors,
6 Capel Street, (Opposite Nealons Pub), Dublin 1
Brian A. Rennick, Solicitors, Main Street, Dunboyne, Co. Meath
Beauchamps, Solicitors, Riverside Two, Sir John Rogerson's Quay, Dublin 2
The claimant commenced employment with the first named respondent in June 2006 as a chef. The respondent operates a number of public houses and the claimant regularly worked in different bars. At some stage the claimant was receiving two pay slips, one from the 1st named respondent and the other from the 2nd named respondent.
On 24th December 2012 the claimant and his partner of 18 years split up. The claimant found himself unable to work as a result of this and took what annual leave he had coming to him. However after this he went on sick leave. The claimant met with his manager on 1st February 2013 to discuss a return to work and the claimant was told that he would need a certificate from his Doctor to say he was fit to resume. The claimant obtained such a certificate and the respondent rostered him for work at the end of February 2013. However the claimant was only notified by text message on the evening before he was due to work and this was not enough time to arrange someone to mind his child. The claimant did not return to work on the designated day and subsequently went out on sick leave again. Subsequently the claimant again notified the respondent of his intention to return to work and a meeting was arranged with a “company advisor” who again requested a certificate of fitness to return to work. The claimant attended the company Doctor and that doctor referred him to a psychiatrist. However the claimant saw no need to attend a psychiatrist as he felt fine and had never had any mental health issues. The claimant was aware of a text message sent from his phone to the manager which stated that he (the claimant) was “thinking about ending it all”. However the claimant told the manager that it was not he who sent the text but that his ex-partner had taken his phone and sent that text.
The claimant did not raise the issue of having to attend a psychiatrist as a grievance with the respondent and did not return to work. It was the claimant’s position that the respondent was unreasonable in not allowing him to return to work and that he was therefore constructively dismissed from his employment.
The respondent referred to the company doctor’s report and her referral of the claimant to a psychiatrist. Previously an employee of the respondent had committed suicide in one of the pubs and a close acquaintance of the owner and the manager had also killed himself.
The manager of the respondent told the Tribunal that she believed the text message about “ending it all” had come from the claimant and not his ex-partner and the manager was very concerned about this.
It was the respondent’s position that they were correct with regard to insisting upon a psychiatric report in regard to the claimant’s fitness to return to work before allowing him to return. The witness for the respondent also told the Tribunal that it was still open to the claimant to return to work and that they (the respondent) are always looking for chefs.
As the claimant’s case was that he was constructively dismissed by the respondent the burden of proof fell to the claimant. The Tribunal carefully considered the evidence adduced at the hearing and finds that the claimant did not discharge the burden of proof that he had no option but to resign given the behaviour of the respondent.
The respondent was reasonable in its request for medical certification of the claimant’s fitness to return to work and when the Doctor referred the claimant to a psychiatrist the respondent was entitled to insist that the claimant attend a psychiatrist before returning to work. However the claimant refused to do so and left the respondent in the position of being unable to offer him a return to work. The claimant never raised a grievance with the respondent in respect of the issue of his attending a psychiatrist and therefore did not allow the respondent an opportunity to deal with such a grievance.
In making its decision the Tribunal is mindful of Section 1 of the 1977 Unfair Dismissals Act as amended.
“( b ) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”
The Tribunal is also mindful of the following cases – Carthy –v- Clydale Investments UD 1091/2004 and Martin –v- Extravision Ltd, 265/2006, where it was held that on the evidence and circumstances adduced that the Claimant did not discharge the burden of proof. In particular the Tribunal notes the case of Healy –v- Credit card systems Ltd UD 148/ 2003, where it was held that the burden of proof on the Claimant in such cases is quite onerous. The Claimant must prove not only that his or her employer’s behaviour was unreasonable but also that his or her response in resigning was reasonable.
In all the circumstances the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal