Shortcut over wall cost Burnbank postie his job

[TrueBlueTerrier]

http://www.hamiltonadvertiser.co.uk/new ... -24380597/" onclick="window.open(this.href);return false;

A POSTMAN who was dismissed over his absence record after injuring himself taking a shortcut on his round has been awarded over £5000 in compensation.

Jamie McSorley, of 92 Windsor Gardens, Burnbank, last week won an unfair sacking claim at a Glasgow employment tribunal.

Last August the 25-year-old required 11 stitches to a leg injury after he took a shortcut over a 2ft-high wall. He was off work for three weeks.

Because of sick leave taken as a result of the injury, Mr McSorley was dismissed as he already had prior absences from work.

The employment tribunal considered the dismissal to be contrary to an agreement with the Communications Workers’ Union which stated that absences caused by injuries were normally discounted.

In Mr McSorley’s case, appeals manager Brian Cassidy took the view Mr McSorley was to blame for the accident and, therefore, the absence should not be discounted.

Mr McSorley was dismissed on October 6 . Royal Mail claimed if he had used steps he would not have injured himself and it was not an accident on duty.

At his appeal hearing, Mr McSorley disputed he had climbed over a wall, claiming he caught his leg on a jagged edge on the wall after he came down two stairs at once then turned. His appeal was dismissed.

The tribunal found the agreement with the trade union did not provide management with discretion to decide about absences caused by accidents at work.

The agreement said such absences must normally be discounted.

A manager could not start from the position that the agreement conferred a wide discretion upon him.

Employment judge Hugh Murphy added: “No evidence was laid before us to suggest that the circumstances in this case are exceptional or any way unusual.

“Indeed, as we understood Mr Cassidy, he accepted that most accidents involving postmen involve slipping or tripping, and that it is almost always possible to blame the employee at least in part for any accident on the basis that he ought to have watched where he was placing his foot, ought to have avoided the substance likely to cause him to slip, or the obstruction that caused him to trip and fall, and ought to have worn footwear that was less worn and slippery.”

The tribunal added that stepping over a 2ft-high wall was not a dangerous activity likely to give rise to injury.

The tribunal awarded Mr McSorley £5067 compensation, but rejected his bid for reinstatement because of his attendance record and potential redundancies.

[TrueBlueTerrier]

Wow - this could have wide implications but its good news.

[opgpat]

mmm not so sure this is a good result. In summary it has cost RM 5grand (plus court costs?) to dump an employee. Cheaper than redundancy? And how can a court issue compensation yet allow the sacking to stand? I don't get that atall. The absence was due to an accident so how come he's still sacked?

[TrueBlueTerrier]

mmm not so sure this is a good result. In summary it has cost RM 5grand (plus court costs?) to dump an employee. Cheaper than redundancy? And how can a court issue compensation yet allow the sacking to stand? I don't get that atall. The absence was due to an accident so how come he's still sacked?

Its not good news on the sackings as you say a good way to get rid of employees cheaply. But it does say

The tribunal found the agreement with the trade union did not provide management with discretion to decide about absences caused by accidents at work.

- so the argument that managers can count an AOD is blown out of the water hopefully.

As to him not being reinstated - the court

rejected his bid for reinstatement because of his attendance record and potential redundancies

[stokes11eg]

On balance, a good ruling by the tribunal--especially concerning the regognition that these accidents can and do happen,and we are NOT for the most part responsible.

[brothermagrew]

Wow - this could have wide implications but its good news.

Good news indeed and brought to you over a week ago (which puts pay to the myth that nobody beats the Teebs for the News) by yours truly

http://www.royalmailchat.co.uk/communit ... ey#p176578" onclick="window.open(this.href);return false;

[TrueBlueTerrier]

Wow - this could have wide implications but its good news.

Good news indeed and brought to you over a week ago (which puts pay to the myth that nobody beats the Teebs for the News) by yours truly

http://www.royalmailchat.co.uk/communit ... ey#p176578" onclick="window.open(this.href);return false;

[brothermagrew]

And in respectful kind to the Teebs the best news hound

Long may you continue to bringing the site the NEWS

[wranglered]

If anyone in Scotland for the CWU has the judgement or any more information on this case, please PM me....

I am representing two RM employees at Employment Tribunals in Nottingham and there are similarities with this victory that might be useful in our cases....

...and before anyone asks, no, the CWU didn't back them....

[goinpostal]

Tribunals don' t have power of reinstatement, though its news to me they can reject it.

[TrueBlueTerrier]

Tribunals don' t have power of reinstatement, though its news to me they can reject it.

I think it has an effect on the compensation pay out when they make their decision.


In other words if they recommend reinstatement but the defendants don't reinstate then the payout is higher because of the lost wages up to the ruling. If as in this case they reject the reinstatement then the financial settlement would not include loss of wages since their sacking.

At least thats how I understand it but if anyone knows different please reply.

[goinpostal]

Yes that's what i thought ta Big Blue!

[brothermagrew]

Came across the following which may shed further light on things:

Reinstatement or re-engagement?

The Employment Rights Act 1996
Under s112 of the Employment Rights Act 1996 (the ERA), where an employee has been dismissed and has brought an ET claim, they can request an order for reinstatement or re-engagement. This is only applicable in claims of unfair dismissal. Therefore only individuals who have been dismissed and have had one year's continuous service with their employers can make the request. The request must be either made in the claim form or can be made later at the hearing.

Reinstatement:
S114 of the ERA outlines the provisions for reinstatement. Should an order for reinstatement be made, the employee must be treated in all respects as if they had not been dismissed i.e. their entitlement to all contractual benefits should be restored. Restoration will include terms such as pay, holidays, pensions, and seniority, along with any improvements from the date of dismissal and the date of reinstatement. They should be reinstated to their old job or a comparable job, where that remains available with the same employer.

The order should state:
The amount payable in respect of any benefit
Any rights and privileges which must be restores to the employee
The date by which the order must be complied with


Re-engagement:
S115 of the ERA outlines the provisions regarding re-engagement. This differs from reinstatement in that an individual can be re-engaged by a successor or associated employer. The job may be a different job, but must be comparable to that from which the individual was dismissed or some other suitable job.

An order for re-engagement must indicate:
The identity of the employer;
The nature of the employer;
The level of remuneration;
The amount payable in respect of any benefits;
Entitlement to any rights and privileges and
The date of compliance with the order.


Re-engagement must be on terms so far as reasonably practicable as favourable as any order for reinstatement. However, this precludes the terms from being more favourable.

Common conditions to reinstatement and re-engagement
The employee must wish for either order to be made.
It must be practicable for the employer to comply with the order. Practicability must be considered at the time the ET makes the order and then again if the employer fails to comply with the order. The burden is on the employer to show that it is not practicable should they fail to comply with the order in the first instance. Practicability is a matter of fact and not about whether an employer had reasonable objections to the order. It is not necessary that reinstatement or re-engagement be impossible. The tribunal must consider what is practicable in the circumstances of the employer's business at the time. It is also not relevant just to consider what is possible. For example, it would not be practicable to re-engage someone where, even if it were possible, it would cause serious industrial strife, or where an individual has lost confidence and trust in the employer to the extent that they would no longer be a satisfactory employee.


The fact that an employer has already engaged a replacement only precludes reinstatement or re-engagement being practicable where:
The work couldn't have been done without engaging a permanent replacement.
The replacement was engaged after a reasonable period, although not having known about whether the individual wanted reinstatement or re-engagement.

If an employee has contributed to the dismissal then this will be taken into account and in these circumstances it is unlikely or rare that an order for reinstatement or re-engagement would be made in these circumstances.

Orders are discretionary
Should an order be made the individual is entitled to all back pay between the period of the dismissal and the re-engagement/reinstatement. Orders for re-engagement/reinstatement are made at the ET's discretion, they are not mandatory. However, if an individual makes the request for an order the tribunal must consider whether an order should be made.

Failure to comply with an order
If an employer fails to comply with an order and has not shown it was not practicable, and yet has failed to comply with the order, then an additional award of compensation can be made at the tribunal's discretion. The minimum level of compensation is 26 weeks' pay and the maximum, 52 weeks' pay.

http://83.137.212.42/sitearchive/eoc/Do ... page=20599" onclick="window.open(this.href);return false;.

[lover]

and thats what i thought

[KyzaSoze]

What a farce.. Shame he never got his job back, but a nice tidy wee sum for his grief.. I'd take a holiday and sent RM a postcard.