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High Court confirms on appeal that employee on long term sick leave

had no entitment to redundancy

High Court confirms on appeal that employee on long term sick leave had no entitment to redundancy


In a judgement (Horan v CWS Boco Ireland Limited) delivered by Justice Murphy in the High Court in November 2012, the High Court rejected a claim by the Appellant that the Employment Appeals Tribunal had erred in law in finding that he was not entitled to a redundancy payment under the Redundancy Payments Acts. At the time of the claim the Plaintiff was on long term sick leave.

Background

The judgement noted that the Appellant commenced employment with the Respondent in April 2003 as a delivery driver and in late 2008 suffered injury as a result of a road vehicle crash. In early November 2009, the Labour Relations Commission published a proposal relating to the closure of the Respondent’s predecessor at two locations including the location where the appellant had worked.

The proposed redundancy terms contained a section entitled “Long Term Absence” which provided inter alia:

“On receiving a doctor’s certificate confirming full fitness to return to work by the 27th November, the company will apply the terms of this agreement. Other cases will be reviewed by the company on a person-by-person basis.”

The Appellant subsequently received a letter dated 9th November, 2009, stating his position with the Respondent was being made redundant with effect from the 27th November. On the same day (9th November) the Appellant obtained a medical certificate from his doctor stating that he was fit to return to work. The Appellant denied receiving further correspondence from the Respondent dated 12th November which rescinded the terms of the letter dated 9th November 2009 and placed the Appellant in a long term absence category. The Appellant proceeded to bring a claim to the Employment Appeals Tribunal under the Redundancy Payments Acts 1967 (as amended).

Employment Appeals Tribunal

The Employment Appeals Tribunal ruled that since the Respondent company maintained that the Appellant was still an employee, it concluded by majority decision that it found the claim under the Redundancy Payments Acts 1967 to 2007, failed.

The Tribunal noted that the Appellant was still an employee, who was submitting sick certificates to the Respondent and did not come within the Labour Relations Commission agreement which required that an employee on long-term sick leave had to submit a doctor’s certificate stating fitness to work. As the Appellant was still submitting sick certificates even after his fitness to work certificate, he did not come within the terms of that agreement.

Appeal to the High Court

In appealing to the High Court, the Appellant referred to errors of law by the Tribunal. It was firstly submitted that the Employment Appeals Tribunal determination did not contain any analysis of the provisions of the Redundancy Payments Acts or any attempt to establish whether the Appellant came within the terms of the legislation. The Appellant further argued that at no time did the Respondent reserve any right to have the contents of the medical certificate which he was required to furnish, reviewed or challenged by any third party (including their own medical advisers) as this was outside the terms of the agreement.

The High Court considered the various arguments proposed by both the Appellant and Respondent including various correspondence referred to above.

Decision of the High Court

The High Court stated that it was satisfied that the Tribunal did take into account the letters which were before it and were aware that the Naas Road plant had closed down and that no suitable alternative position was offered (nor indeed applied for) by the Appellant. It further noted that the Tribunal did not err in law in considering the findings of the Respondent’s occupational health assessment to be relevant given the court’s findings in relation to the inconsistency of the fitness to work certificate and the sick certificates.

The Court also of the view that the mandatory nature of the provision relating to long term absences was, indeed, considered by the Tribunal and that the determination recorded in some detail the arguments made by both sides and set out the facts upon which its conclusion was reached. Justice Murphy noted that it was not the function of the court to, in essence, re-weigh the evidence before a specialist Tribunal such as the Employment Appeals Tribunal.

Justice Murphy found that there was no identifiable error of law nor unsustainable findings of fact by the Employment Appeals Tribunal in its determination and the Appellant had failed to prove the facts entitling him to redundancy and ex gratia payments.

The High Court concluded that it was not satisfied;

  1. that the Tribunal erred in law in finding that the Appellant was still an employee of the respondent company;
  2. that the Tribunal erred in law in finding that the appellant was still on sick leave from his employment with the respondent;
  3. that the Tribunal erred in law in failing to give any or any undue weight to the letters dated the 9th November, 2009 and the two letters dated the 27th December, 2009, or that it erred in law in failing to give any or any undue weight to the evidence that the Naas Road plant where the appellant was employed closed down and no alternative was offered to the appellant

The Plaintiff’s appeal was rejected.