EMPLOYMENT APPEALS TRIBUNAL
John & Carmel Kenny Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 12th July 2016 and 10th October 2016
Eamon Concannon, Concannon Solicitors, Office 5 Level One, Unit 8 Technology Park, Parkmore, Galway
Purdy Fitzgerald Solicitors, Block 1, G.F.S.C, Moneenageisha Road, Galway
The claimant commenced employment as a van delivery driver on 4th October 2004 and was dismissed on 3rd April 2015 because he was found to be incapable of returning to work.
Having been involved in an accident while at work in November 2012 the claimant went on Illness Benefit and never returned to work.
The respondent met with the claimant, at the claimant’s request, on 15th January 2015 and again on 25th March 2015. It was common case that the claimant was unable to return to the position of van driver on both of these occasions.
The respondent concluded that the claimant would not be able to return at any point and given the fact that they needed to fill his position they decided to dismiss the claimant. The respondent had considered whether they could bring the claimant back on lighter duties but found that there were insufficient light duties to sustain this. Therefore the respondent concluded that there was no alternative but to terminate the claimant’s contract.
However it was the claimant’s position that he never said that he would not ever be able to return to work as a van driver and therefore he should not have been dismissed as he was still on sick leave. The claimant held that other employees had been taken back on a part-time basis after being absent on sick leave and that he should have been given the same opportunity. However, the respondent told the Tribunal that, in cases where this had happened, those employees came back to full duties and were not assigned to light duties.
The Tribunal carefully considered all the evidence adduced and submissions in this case.
As a result of injuries sustained in an accident in November 2012 the claimant was incapable of performing his job as a van driver. There was no doubt that the claimant’s absence from work from November 2012 until his dismissal in April 2015 was due to his injuries. His absence was covered by medical certification which indicated that he was unfit for work. Indeed the claimant on several occasions self-certified himself as being unfit for work.
The Tribunal considered whether the claimant was capable under section 6(4)(a) if the Unfair Dismissal Act, 1977, of doing the work for which he was employed. The Tribunal finds that the respondent acted reasonably in all the circumstances in dismissing the claimant.
Therefore the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal