EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Pzemyslaw Kwasiborski UD331/2012
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. F. Murphy
Members: Mr. D. Morrison
Mr. M. McGarry
heard this claim at Castlebar on 17th October 2013
and 27th February 2015
Claimant: Mr. Fiachra Breathnach BL instructed by John Brady solicitor,
T Dillon-Leetch & Sons, Solicitors, Ballyhaunis, Co Mayo
Respondent: Mr. Evan O’Dwyer solicitor, Crean O'Cleirigh & O'Dwyer,
Solicitors, Bridge Street, Ballyhaunis, Co Mayo
The fact of dismissal was in dispute and therefore the claimant went into evidence first.
The claimant was employed as a mechanic/general operative for 9 years until his employment terminated in August 2011. The claimant took leave to visit his parents in Poland on 7th May 2011 and while he was there he injured his back while moving a wardrobe in his parent’s home. On or about the 12th May 2011 the claimant’s partner contacted the respondent to inform them that the claimant was now taking sick leave. Thereafter the claimant sent medical certificates together with translations to the respondent up to 30th August 2011. The claimant acknowledged the fact that he received three letters from the respondent dated 7th July, 18th August and 29th August 2011 but did not reply to any of these as he was absent on sick leave and the respondent knew this.
The claimant also told the Tribunal that he had sent a medical report with translation from polish to the respondent but could not say when he would be fit to resume work at that time. Subsequently in September 2011 the claimant was certified fit for work by his Doctor in Poland and returned to Ireland. However when he attended his Doctor in Ireland in October 2011 he was found not to be fit to return to work. The claimant did not inform the respondent of this as he had already been dismissed.
Resumed on 27th February 2015:
The Tribunal heard evidence from the Claimant’s wife (EG). She explained that her husband’s English is not that good and that she looks after the household bills and their bank details. She was authorised to speak to her husband’s employer. Her husband hurt his back so she phoned his employer. She spoke to the general manager (MK) and he told her that it would not be a problem. Regarding the medical certs MK was fine with those also. At some point in time MK was not happy about documentation so MK asked for a medical report and prognosis. The last certificate she personally dealt with was 11th August 2011. At some point in time she phoned MK to ask for a meeting to talk about medical report and prognosis and he told her that he would meet her later on after lunch. However some ten or twenty minutes later he phoned her to say he would not meet her and would not take the medical report or take the last cert. She did at some point try to hand them to MK but he refused to accept them. She called to the owners house a MR. M, but he was not there, she left the report and cert with Mr. M’s wife.
The Tribunal heard evidence from the general manager (MK), who is with the Respondent company for 23 years. The company has in or around 80 employees, 19 of whom are from Poland. The Claimant was a good worker, and had no warnings. He holds no resentment towards the Claimant.
Around the end of April beginning of May 2011 the Claimant approached him to request one week’s unpaid leave. This was because the Claimant said his father was unwell in Poland and because the Claimant and his wife were expecting the first child, his parent’s first grandchild. This leave was sanctioned. He expected the Claimant to return on Monday 16th May
The Claimant did not return and he did not hear from him. He phoned the Claimant and there was no response. He did speak to the Claimant’s wife who told him the Claimant had contracted a food bug and would not be returning until the following week. He told her that “was fair enough that’s fine”. He did not receive any original medical certs.
The witness explained that he might have received one cert and Mrs Murphy the final one, but the neither the Claimant nor his wife sent any of the other certs that they said they had.
The Claimant never returned to work. They did write to the Claimant to ask for medical certificates but got no response. They wrote to three addresses for the Claimant two in Mayo and one in Poland by registered post. The letter to Poland was translated into Polish.
They got no response. The Claimant’s wife did phone him to ask to meet regarding the matter and he did phone her back.
The witness explained that the Claimant never contacted them and the first time he saw the Claimant again was in November 2011.
In cross examination it was clarified that the witness spoke to the Claimant’s wife only once on the phone in May 2011 and it was the first time he had spoken to her in a representative capacity. It was clarified that he had said in his evidence that he said he needed to speak with her husband.
The Tribunal heard evidence from AL who is the owner’s daughter and works in the Respondent company in the finance area. She told the Tribunal that the Claimant was dismissed because he did not contact them. They expect (from all employees) regular updates, regarding these matters, by phone, by post or e-mail. She wrote to the Claimant to three addresses because she was not sure where he was. They tried to contact him by phone but there was no reply. She was asked why they dismissed the Claimant and she replied that they did not. They could not contact the Claimant, “he just disappeared, we did not know when he was going to come back”.
In cross-examination she was asked about a phone call from the Claimant’s wife to MK. She explained that she was there when he took the call and that they (MK) told her that they would need more info. She did not accept that the Claimant’s wife left a medical report at Mrs Ms house because she never got that report.
The Tribunal have carefully considered all of the evidence adduced on both days of hearing. The Tribunal determines that the Claimant failed in his action to prove that the dismissal was unfair. The company by its letter dated 07th July 2011 afforded the opportunity to the Claimant to engage with them. The Tribunal is not satisfied that the Claimant sufficiently engaged thereafter with the company. Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
The claim under the Minimum Notice and Terms Of Employment Acts, 1973 To 2005, therefore fails also.
Sealed with the Seal of the
Employment Appeals Tribunal