EMPLOYMENT APPEALS TRIBUNAL
Rafal Zurek – claimant
Carlyle Bus & Coach Limited – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire BL
Members: Mr N. Ormond
Mr J. Maher
heard this appeal at Dublin on 16th March and 21st May 2015
Claimant: Mr Marcin Szulc of Rostra Solicitors, 78 Benburb Street, Smithfield, Dublin 7
Respondent: Mr Peter Mooney of Employment & Law Advisory Services Ltd, Charles House, Albert Street, Eccles, Manchester M30 OPW, England
The determination of the Tribunal is as follows:-
The fact of dismissal was in dispute. The claimant said that he was constructively dismissed.
The respondent is a branch of a larger UK company that supplies components to bus and coach companies. There are 5 employees in the Irish branch, the branch manager, sales operator, warehouse operative and two drivers. The Claimant was a driver.
The claimant told the Tribunal that he started working for the respondent in 2008. He was given a contract of employment and an employee handbook. Over the course of his employment he had taken annual leave and sick leave and he was familiar with the procedures for taking leave.
On 3 August 2013 the claimant went to his doctor. The doctor recommended surgery to resolve the problem and referred him to a hospital in Poland. The claimant got details of his appointment on about 12 August 2013 and immediately informed his manager and booked a flight to Poland. On the 12 August 2013 the claimant gave his manager the medical certificate issued on the date of his appointment with his doctor. He did not give his manager a return to work date because he did not know when he would be fit to return.
The claimant was on annual leave from 15 to 19 August 2013. He flew to Poland on 19 August 2013 and was in hospital for 5 days starting on 20 August. On 30 August he flew back to Ireland but did not contact the respondent because he was not fit to work.
He was unsure when he received the letter written by his manager accepting his assumed resignation. The claimant appealed the decision. At a meeting on 23 September 2013 the claimant was reinstated but suspended on full pay pending a disciplinary meeting to consider his unauthorised absence. Following a disciplinary meeting on 26 September 2013 the claimant was issued with a final written warning.
The claimant appealed the final written warning but was unsuccessful. At this time he was still on sick leave. He was very disappointed by the final written warning as he had worked for the respondent for 5 years and he thought they would help him at a time when he was unfit to work. He wanted to remain working for the respondent but felt he could not so he resigned his employment on 5 November 2013.
The branch manager gave evidence. After the claimant’s employment ended he was replaced. There are 2 drivers employed. The claimant worked a 39 hour week with occasional overtime on top.
On 12 August 2013 the claimant mentioned a medical appointment on the 20th but did not give details. In the absence of a return date the branch manager assumed he would only be out one day. Immediately following his letter of 4 September the claimant appealed the assumption that he had left his employment. The branch manager decided there should be a disciplinary meeting because the claimant did not adhere to the rules for taking leave. He was given every opportunity to respond. The branch manager issued the claimant with a final written warning.
The operations manager gave evidence. The branch manager reports to him. The claimant had a contract of employment and an employee handbook.
The claimant left work on 14 August 2013 and did not return. The branch manager kept him informed. The operations manager knew that the branch manager wrote to the claimant on 4 September 2013. He claimant appealed and met the branch manager. They needed to find out what had happened. As a result of the meeting the claimant submitted medical certs.
The operations manager came from the UK to hear the claimant’s appeal against the final written warning on 15 October 2013. The claimant was not accompanied at the meeting but he had been offered representation. The claimant did not offer any reason for his appeal. The operations manager was given no grounds to change the outcome. In his view it was correct for the branch manager to deal with the investigation and the disciplinary process. The respondent is a small company and the claimant’s employment was never in jeopardy. The operations manager upheld the final written warning.
The Tribunal carefully considered the evidence adduced and the documents submitted in this case. The claimant had worked satisfactorily for the respondent for a number of years before the difficulty that led him to resign.
In all the circumstances the Tribunal has reservations about the procedures that resulted in the claimant being issued with a Final Written Warning. However that procedure had ended and the Final Written Warning was on file and no further proceedings involving the claimant were in being.
The Tribunal cannot find that the situation the claimant found himself in on 5 November 2013 was untenable and permitted him to resign. His dissatisfaction with the disciplinary process did not amount to a fundamental breach of his contract of employment.
The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal