The employee had been employed by the company from 2000 and was absent on sick leave from June 2008 but continued to submit regular medical certificates for his absence. In 2010 a letter from social welfare confirmed that he was capable of working and in early 2011 the company doctor certified the he was fit to return to work but the company also determined that the employee should be assessed by an occupational therapist to determine if he was physically fit to carry out his employment duties.
The company requested the employee to attend the occupational therapist however he refused even through they stated in a letter to him “….you must also demonstrate that there is no medical impediment to the resumption of your former employment. This will require confirmation from our delegated occupational therapist or a specialist of your choosing.…”.
The Tribunal noted that the employees contract of employment provided that “the company reserves the right to have you examined by a medical practitioner at any time“. The employee did not attend with an occupational therapist or any specialist of his choosing and did not produce any independent medical evidence as to his fitness to return to his specific employment.
The Tribunal also heard recordings of telephone conversations whereby the employee asked about work. The Tribunal noted “It was open to the claimant to attend with the specialist in order to satisfy the respondent that he was fit to return to work and for reasons we will never know he refused/neglected to do so“.
The Tribunal concluded that “the claimant by refusing/neglecting to produce specialist evidence or to allow specialist evidence to be produced frustrated his contract of employment” and accordingly the claimant’s claims under the Unfair Dismissal Act 1977 (as amended) and the Redundancy Payments Act 1967 (as amended) failed and were dismissed.