Kernohan v Henry Brothers (Magherafelt) L... [2010] NIIT 6

THE INDUSTRIAL TRIBUNALS

CASE REF: 6/10

CLAIMANT: George Kernohan

RESPONDENT: Henry Brothers (Magherafelt) Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr A Burnside

Mrs M Gregg

Appearances:

The claimant was represented by Miss Campbell, Barrister-at-Law, instructed by James O’Brien and Company Solicitors.

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

SOURCES OF EVIDENCE

1. The claimant and his wife gave evidence to the tribunal. Mr David Henry, Managing Director and Miss Jennifer Cruickshank, Assistant Human Resources Advisor gave evidence on behalf of the Company.

2. In addition the tribunal had a bundle of agreed documents before it.

THE CLAIM AND THE DEFENCE

3. The claimant claimed that he was unfairly dismissed and that he was entitled to redundancy payment. The respondent denied both claims and contended that the claimant had been fairly dismissed on the grounds of capability.

THE RELEVANT LAW

4. The law relating to unfair dismissal is found in Article 130 of the Employment Rights (NI) Order 1996 which states as follows: -

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do, …..”

THE FACTS

5. The claimant was employed by the respondent as a labourer for 15 years.

6. In or around 12 January 2009 the claimant sustained an injury to his foot. It transpired that he had fractured a bone in his foot and he was absent from work thereafter.

7. The respondent wrote to the claimant on 6 February 2009 asking for additional medical advice. On 20 March 2009 Mrs Kernohan contacted Miss Cruickshank and indicated that the claimant was to see a consultant and have an MRI scan.

8. By a letter dated 28 April 2009 Miss Cruickshank asked that the claimant attend a meeting with Mr David Henry, the Managing Director of the Company and herself on Friday 8 May 2009 at the company premises. The tribunal noted that that letter indicated that the company might have to consider termination of the claimant’s employment on the grounds of his ill health and subsequent inability to work.

9. The tribunal had notes of that meeting transcribed by Miss Cruickshank in the form of a statement of the claimant and these notes had been posted to the claimant for perusal and possible correction if necessary. The claimant signed these notes as being true to the best of his knowledge and belief on 1 June 2009.

10. By a letter dated 22 May 2009 the respondent asked the claimant for his consent to obtain a report from the claimant’s General Practitioner.

11. This consent was given by the claimant and a report was requested by the respondent by a letter dated 9 June 2009. The General Practitioner provided a report to the respondent dated 27 June 2009.

12. By a telephone call on 29 July 2009 Mrs Kernohan informed Miss Cruickshank that the consultant had informed them that there was no more that the doctors could do. There was difficulty in saying whether the claimant would get better or whether he would not get better. Mrs Kernohan also confirmed that Mr Wilson the consultant had discharged the claimant. By a letter dated 31 July 2009 the respondent wished to give the claimant a further period of recovery time before reviewing his fitness for work. Accordingly a meeting was fixed for 30 September 2009.

13. Once more the notes of that meeting were transcribed into the form of a statement by the claimant and this was typed up and sent to him for perusal. Once again he signed and returned the statement confirming that the contents of the statement were true to the best of his knowledge and belief.

14. By a letter dated 13 October 2009 the claimant was informed that his contract of employment had been terminated with immediate effect on the grounds of his incapacity.

15. The claimant remains in receipt of Employment and Support Allowance as at the date of this hearing and agreed that to be in receipt of this allowance he has to be declared medically unfit to work.

16. By the letter dated 13 October 2009 the claimant was advised of his right to appeal.

17. By a letter dated 17 November 2009 Miss Cruickshank confirmed that the company had dismissed the claimant on the grounds of incapacity and that he was not entitled to a redundancy payment. By a letter dated 25 January 2010 the claimant raised a grievance with the respondent stating basically that he was entitled to a redundancy payment.

18. After some correspondence between the parties the claimant confirmed that he wished to follow the modified 2 step grievance procedure and by a letter dated 2 April 2010 the respondent’s Human Resources Director, Julie McKeown examined his grievance and confirmed that the claimant had been dismissed on the grounds of incapacity and that redundancy was not an issue.

CONCLUSIONS

19. It is settled law when an employee suffers an injury or any other form of ill health, howsoever arising, an employer has a twofold duty. Firstly the employer has to inform itself as to the claimant’s medical condition. Secondly an employer has to consult with the claimant to find out what the claimant’s circumstances and views are. We find that in this case the respondent fulfilled this duty in both respects.

20. A report was obtained from the claimant’s General Practitioner indicating that it would be some time before the claimant would be able to return to work and even then the company did not act precipitately but allowed the claimant a further period in which to recover before it considered termination of his employment. The report of Dr Patterson was dated 27 June 2009, but the claimant’s consultation meeting did not take place until 30 September 2009.

21. There were two appointments to discuss the claimant’s situation with him on

8 May 2009 and 30 September 2009. In respect of each meeting Miss Cruickshank the Human Resources Advisor typed up the notes of the meeting in the form of a statement to be read and signed by the claimant. On each occasion the claimant signed and returned each statement.

22. The claimant contended that he was actually redundant and the respondent did not wish to pay him his redundancy pay. This contention arose because of a comment made by Mr David Henry that he would look into the issue of redundancy. The claimant also contended that Mr Henry had told him that he would not let him go with nothing (or words to that effect). The tribunal accepts that at the time Mr Henry made this comment in the meeting on 8 May 2009, he was considering the situation in general and he admitted, that he should not have made that comment.

23. His evidence to the tribunal was that the claimant was not redundant, that his job had been held open and at the date of termination of employment, there was a position there for him to return to. On behalf of the claimant it was suggested that this was not true because nobody had been recruited to fill the claimant’s position. Mr Henry explained that he had been moving workers around internally to cover positions as he was moving workers from his factory out on to construction sites as there was more work there. The tribunal finds that the claimant’s position was not redundant and that there was a job there for him to do.

24. The claimant also tried to assert that his dismissal was unfair because he had literacy difficulties and these had not been taken account of by the company. There is no objective evidence before the tribunal to show that the witnesses for the respondent were aware of the claimant’s difficulties. However, there did not seem to be any relevance in this contention as the claimant was not required to read anything in each meeting. The claimant tried to argue that he did not really understand what was happening. However if that was really the case, the tribunal considers that it would have been more likely than not that when notes of the meeting were sent to his home and read out to him by his wife he would have taken up any inaccuracies with the company.

25. It was also contended on behalf of the claimant that he could have been given lighter duties, some form of reasonable alternative work and that reasonable adjustments could have been made to the workplace. It was accepted by the claimant that he had difficulty walking on uneven ground at the time of his dismissal. It is a feature of the respondent’s workplace that it demolishes buildings and labourers break up the rubble. Effectively, the construction sites are extremely uneven ground. It was suggested on the claimant’s behalf that he be allowed to drive a dumper. However the respondent pointed out that the claimant would still have to climb up into this machine across the uneven ground and only the smallest version of this machine would have been capable of being operated automatically. The tribunal concludes there was no alternative work that could be offered to the claimant or no reasonable adjustments that could be made to the workplace setting.

26. The claimant also contended that he had been unfairly treated because the respondent had relied on his General Practitioner’s report which was four months old at the time that the decision to dismiss was taken. The tribunal’s view is that this is not an excessive time period within which to rely on a General Practitioner’s report. Furthermore, the respondent had been told by Mrs Kernohan that the claimant was going to be discharged from the consultant’s care. Therefore the tribunal concludes that it may well have been the case that there was no further information that could have been made available to the company. The tribunal is supported in reaching the conclusion that it was not unfair to rely on the General Practitioner’s report as to the date of hearing the claimant remains on Employment and Support Allowance and to receive this allowance has to be medically unfit. Accordingly the tribunal does not consider that the claimant was unfairly dismissed but was fairly dismissed on the grounds of his incapacity and accordingly is not entitled to a redundancy payment.

Chairman:

Date and place of hearing: 5 May 2010, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kernohan v Henry Brothers (Magherafelt) L... [2010] NIIT 6_10IT (27 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6_10IT.html Cite as: [2010] NIIT 6_10IT

Industrial Tribunals Northern Ireland Decisions