Walker v Royal Mail [2004] NIIT 1527_01 (7 October 2004)

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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Walker v Royal Mail [2004] NIIT 1527_01 (7 October 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/1527_01.html
Cite as: [2004] NIIT 1527_01, [2004] NIIT 1527_1

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1527/01

APPLICANT: Michael Walker

RESPONDENT: Royal Mail

DECISION

The unanimous decision of the tribunal is that the respondent did not unfairly dismiss the applicant and accordingly his complaint is dismissed.

Appearances:

The applicant appeared on his own behalf.

The respondent was represented by Mr Dunlop Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Summary Reasons

This is a complaint by Mr Walker that he was dismissed, with notice, from his employment as a postman with the respondent on 30 August 2000.

The issue in this case is whether the dismissal was for "some other substantial reason" within Article 130 of the Employment Rights (Northern Ireland) Order 1996. If so, was the dismissal fair, in particular, whether in the circumstances the respondent acted reasonably or unreasonably in treating the applicant's absence from work and his anticipated continued absence as a sufficient reason for dismissing the applicant. This must be determined in accordance with equity and the substantial merits of the case.

The tribunal finds that the reason for dismissal was the applicant's absence from work, his anticipated future absence due to continued problems with his feet and his decision initially not to oppose his dismissal but to apply for termination of his employment on the grounds of ill health. The respondent's terms and conditions provided that an employee being dismissed for absence could either appeal the dismissal or apply to be dealt with under the Ill-health Retirement Scheme or both. The tribunal concluded that the applicant was dismissed for a reason relating to absence, which was a reason within Article 130 of the Employment Rights (Northern Ireland) Order 1996. The tribunal has had regard to the provisions of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 in determining whether the respondent acted reasonably in treating that absence as sufficient reason for dismissal.

The tribunal concludes on a balance of probabilities that the respondent did act reasonably in all the circumstances in dismissing the applicant with effect from 8 December 2000. The applicant had been absent from work since the middle of November 1999. Between December 1999 and August 2000 the applicant had a number of referrals under the occupational health scheme operated by the respondent. In August 2000 the applicant was given warning that the respondent was considering termination of his employment due to his "unacceptable level of absence". The applicant was invited to make representations against such action but none was made at that time. There was no evidence before the tribunal that the respondent had treated other employees guilty of similar absence in a different fashion.

With regard to procedural matters it would be preferable if a written record was kept of all managerial decisions taken with regard to alternative employment and or decisions under Stage 1 of the Ill-health Retirement Scheme. The tribunal was disturbed that there appeared to be no requirement on the respondent to advise an employee at Stage 1 or Stage 2 of the Ill-health process that their application had been unsuccessful.

The applicant exercised his right of appeal provided under the respondent's dismissal procedure. At the same time the applicant pursued his application for retirement on the grounds of his ill-health. The appeal against dismissal was postponed until the applicant's union representatives obtained a medical report to support his application for ill-health retirement. This medical was obtained on 18 December 2000 and the application for ill-health retirement was allowed in February 2001. The applicant did not pursue his appeal against dismissal, which was listed for 7 February 2001 but he did appeal against the award made under the Ill-health Retirement Scheme.

The decision of the tribunal is that the dismissal of the applicant clearly fell within the band of reasonable responses available to the respondent in the circumstances of this complaint: Sainsbury's Supermarket Ltd –v- Hill [2003] IRLR 23. Accordingly the applicant's complaint is dismissed.

Chairman:

Date and place of hearing: 6 and 7 October 2004, Londonderry.

Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/1527_01.html