EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE - claimant UD1899/2011
EMPLOYER - respondent
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr G. Mc Auliffe
Mr C. Ryan
heard this claim at Dublin on 13th February 2013, 30 October and 31 October 2013
Claimant(s): The claimant’s mother
Respondent(s):Ms Anne Byrne, IBEC, 84/86 Lower Baggot Street, Dublin 2
Hr Manager – Employer
The determination of the Tribunal was as follows:-
Opening Statement by the claimant
The claimant joined the respondent as a cleaner in 2001 He worked two seven hour shifts the week-ends and he earned €123.08. This was his first full time job while in college. For eight years he never came to the attention of management and he had seven sick days during this time. In January 2009 two significant events occurred. The claimant was ill and was diagnosed with a serious illness. The claimant came to the attention of the cleaning manager. The claimant had significant sick leave in 2008. The claimant believed that the respondent was in breach of his right to dignity in work. The respondent was aware that the claimant was dealing with a life threatening illness.
Opening statement by the respondent.
The respondent has three thousand employees. The claimant had nineteen absences due to sick leave in 2008. At a meeting on the 31st January 2009 the respondent was not on notice of the claimant’s medical condition. There was no disciplinary sanction at the meeting. The claimant commenced long term absence in 2009. In early 2010 attempts were made by the respondent to meet with the claimant to discuss a return to work date. The claimant was absent for twelve months at this point. The claimant’s GP advised that the claimant was fit to return to work on a phased basis.
Attempts were made by HR to meet the claimant to get a return date to work. In March 2010 it was confirmed that the claimant was still unfit to work
A letter dated 20 February 2009 by the claimant to the respondent was never received by the respondent. The claimant refused to attend occupational health services. Attempts were made to have the claimant return to work. The claimant refused to meet HR again. An assessment of the claimant’s condition could not be obtained.
The claimant submitted his resignation on the 6th April 2011 and the respondent in correspondence dated 20th April 2011 asked the claimant to reconsider his resignation.
The claimant did not engage and refused to co-operate.
The claimant told the Tribunal that he joined the respondent on the 20th January 2001 as a cleaner. He worked week-ends and it was a nice place to work. He was the only person aged 18 who worked part time. In November 2008 to January 2009 he began to feel unwell and he had to attend a hospital in London. He was subsequently diagnosed with a leukaemia like illness and this was a very difficult time for him.
On Saturday 31st January 2009 at the end of his shift the head cleaning supervisor DF told him that he wanted to talk to him and he was given a letter about his sick leave. The letter stated that between February 2008 until January 2009 he had 19 sick days. All medical certificates were received by the respondent a day or two after he was ill. The next day he was in work and he was informed that the cleaning services manager BL wished to speak to him and he was summoned to a meeting. BL told him the meeting was in relation to his sick leave which was unacceptable.
In attendance at the meeting on the 1 February 2009 were BL and UD, Cleaning administration. The tone was not upbeat. He was berated and he was not given an agenda for the meeting. There was no mention of a follow up meeting. He was upset after the meeting and he explained to his parents what had occurred. They told him to retain notes of what happened. The claimant had submitted medical certificates for the days he was absent. BL told him that he could not submit certificates retrospectively. He asked the claimant if he worked elsewhere.
The claimant felt that BL was trying to coerce him and he told the claimant that he did not need this job. The claimant felt that as he had other employment that BL was trying to let him go. BL asked him why he was ill and he told him he had low platelets and that he had leukaemia type cells. As soon as he mentioned the word leukaemia BL cut him short and told him that if his sick leave did not improve he could be fired.
The claimant was very upset as he had disclosed serious personal information to the respondent which only his family were aware of. Eight months later he told his best friend about his illness. He felt that he had to disclose information to secure information. BL told him that he was giving him a warning. The onus was on him to report for work whether he was sick or not. He needed a job and it was not a nice place to be. He was saving for a house and the job with the respondent provided a significant portion of his income which he used as savings to buy his own property.
During the meeting on the 1st February 2009 BL told the claimant that HR had sent him correspondence which outlined the number of sick days that he had and he had never received a copy of that. He asked his mum to make a call on his behalf for a record of his sick days. UD told him that she should not be speaking to his mother as he was a grown man. UD told him that he was still unwell.
UD gave him a letter dated 5 February 2009 on the 7 February 2009 which outlined that his level of absenteeism was unacceptable. The claimant was informed that he would be monitored regularly. He could not fathom how BL could write such a letter. He was not told in advance of a meeting that he could have a colleague present. After that he had blood tests he was diagnosed at a London hospital in June 2009 with a rare disease. In January 2010 his GP was of the opinion that he could return to work. He had to get blood transfusions on a regular basis at that point.
He has been employed with the Civil Service as a clerical officer since January 2006 and works Monday to Friday. There was no physical aspect to the work. At no time has he been in breach of the Organisation of Working Time Act 1997. His hours of work were well below 48 hours. The respondent asked him in 2010 what hours he worked. BL sent an e mail to PF, HR, Civil Service and he believed that this was a serious breach of data protection as he never asked the claimant prior to sending the email.
In late January 2010 he felt well enough to be able to undertake work as a week-end cleaner on a phased basis. Before he sent a letter dated 5th February 2010 to the respondent he needed to know who he would send it to.
Some aspects of the cleaning job were similar to manual labour on a building site. He had significant sick leave while working with the other job. He queried the purpose of a meeting on the 12th February 2010 which was solely in regard to his return to work. BL(HR) had contacted the Civil Service with a view to establishing his working hours. BL (HR) requested his working hours in relation to the Organisation of Working Time Act.
On the 5th February 2010 he sent a letter to BL (HR) requesting how his return to work would be facilitated. A couple of days later on the 8th February 2010 he received a letter from AM, HR requesting him to attend a meeting on Friday 12th February 2010 along with BL (HR)..
On 11th February 2010 he telephoned AM and confirmed he would attend a meeting the next day and that he would bring his father to take notes. He sent a duplicate of his letter dated 5th February on the 11th February 2010. On 12th February 2010 he attended the meeting with his father and introduced him to BL (HR) who questioned him as to who his representative was. He told him that his representative was his father. BL (HR) told him that the Company rules was that a representative must be a trade union member or a member of staff. The claimant told BL (HR) that his father would be there to support him and take notes and he asked for leniency in the matter. He explained to BL (HR) that he felt uncomfortable attending the meeting alone and that he needed someone he felt comfortable and safe with.
He told BL (HR) that he did not know of any union representatives and that it may take time to find a suitable person to accompany him. BL (HR) told him that he would send the claimant a letter. The claimant typed the minutes of the meeting. On the 12 February 2010 HR suggested a new date for the meeting. He could not attend a meeting on Saturday 14th February 2010 His understanding was that he did not receive a reply to his letter dated 5th February 2010. He asked what process he could go through to initiate a return to work.
The company handbook provided for either a trade union representative or a colleague. It did not specify that he could be accompanied by others and it did not indicate that there were only two options.. He felt he needed specific support. The brief encounter he had in the respondent and the consequence had a further traumatic effect on him. He tried to explain that he needed to be accompanied by a specific person
He tried to explain to BL HR the reason that he could not attend a meeting with a trade union representative. He needed someone that he could feel confident and safe with to take notes and alleviate stress he had experience..
He could not attend a meeting on the 13 May 2010 as his representative was not available to attend. Again he felt he needed specific support. The brief encounter he had with the respondent and the consequences had a further traumatic effect on him. By letter dated 26 May 2010 he informed DB (Corporate Security Manager) that the earliest he could attend a meeting in the respondent would be Friday 16 July at 5p.m. By letter dated 2 June 2010 from DB (Corporate Security Manager) he was asked to attend a meeting on 16 June 2010. The claimant responded by e mail dated Wednesday 9 June 2010 that he could not attend as already indicated until Friday 16 July. 2010.
He was requested to attend OHS on 2nd July 2010 but he responded on June 26 2010 that he could not attend. He was then asked to attend for medical assessment on 16th July 2010. By letter dated 12 July 2010 from DB he was asked to attend a meeting on 16th July 2010 to assist his return to work. By letter dated 14th July 2010 he informed DB that he would not be able to attend a medical appointment on the 15th July 2010. He had an issue with the nature of his illness being disclosed as he was trying to process this information. He felt that he could not trust Medmark.
There were a number of inaccuracies in the report from HR on the 29 October 2010. BL could not remember his name but the respondent was prepared to take any evidence BL would have given verbally. UD stated that he had a poor sick leave record prior to 2008 and he had five days sick leave. UD could not recall what his medical certificates indicated and she was in charge of processing medical certificates. If UD could not remember what was documented he felt that there was a possibility of a number of inaccuracies. No one empathised with the claimant.
Two crews worked week-ends on two shifts from 8am to 3p.m and 3p.m. until 10pm. He swopped shifts and he was not the only employee doing this. Swapping shifts was never brought to his attention. He compiled his letter dated 20 February 2009 sometime after the meeting and there was nothing to back up anything UD said. He applied for redundancy in 2009. He was made aware that he could not look for voluntary severance until he returned to work. He attempted to return to work in February 2010. Voluntary severance could be allowed at the company’s discretion. He was advised on the 6 April 2010 that his application could not be considered until he returned to work.
It was first indicated that he had a blood disorder on a medical certificate in June 2009. He adhered to protocol at all times and if he was ill he contacted his supervisor. He furnished medical certificates every time he was ill. His other job did not involve lifting and there was no physical aspect to it. He felt that UD showed him no empathy and this was based on chat with UD eighteen months previously and BL could not remember his name. He never assumed that either party was aware of his medical condition and he would have assumed a decent human being would have changed their demeanour had they been aware..
He did not feel that the letter dated 5 February 2009 from BL Cleaning Services Manager was warranted. He felt that the respondent had a duty of care to help staff in trying to undertake work. He did not believe that a written warning benefited either party. He was not made aware of sick leave entitlements. All he had was an old employee handbook. He was paid for the majority of his absences and he assumed he was entitled to sick leave. He felt that the memo sent to DL HR director from DB on 20 October 2010 in which it alluded to the claimant by his surname on a number of occasions was an affront.
The company handbook stated that at a meeting an employee can be accompanied by a trade union representative or a member of staff. He was fearful of attending a meeting unaccompanied. Both SM and AM (HR) agreed that he could be accompanied to a meeting by a person of his choice. The claimant’s father attended a meeting with him on the 8 March 2011. The respondent wanted to establish if he could attend work. He was at the meeting to ensure that the respondent could provide him with a safe working environment. At no point in time did the respondent offer him a safe working environment. He was asked what he meant by a safe place of work and he replied that he was not treated with dignity and it was not a safe place to work.
The respondent was not prepared to deviate at all. He contacted AM when he arrived and told her that he had brought a representative. AM did not ask if it was a trade union member or a member of staff. He was given no assurance that a safe working environment would be provided. At that point he wanted to return to work. He was fearful that he would have more expenses and there was no offer of help to alleviate his fears and the fear of what affect it would have on him. The situation was exacerbated by his experience with the respondent. He had a heinous report written about him and he wanted to be treated as a human being.
In cross examination he accepted that his absence of 19 days was high. He was not aware of his diagnosis at this time. He stated to BL at the meeting on the 1 February 2009 that it looked like he had a leukaemia like illness. He did not recall stating that he was tired. He was asked if he worked elsewhere and this was not asked in such a way as to be worried about affect it was having on him. The meeting took less than ten minutes. He had no idea of what a standard follow up letter was. His interpretation of the letter he received dated 5 February 2009 was a warning letter. He was never called to a disciplinary regarding his absences and he did not receive disciplinary sanctions regarding his attendance in work. He may not have notified HR that he had another job and a number of week-end cleaners had other jobs.. BL requested information from his other employer and he felt that this was in breach of data protection and he could have asked him for this information when he met.
BL told him on the 12 February 2010 that they could go ahead with the meeting with either a trade union representative or a colleague. The claimant was not prepared to go ahead. It would take him time to find a representative and he would be in contact as soon as possible. This was a hostile experience for the claimant. He did not agree with the interpretation of what occurred regarding the meeting. He could not recall if he specifically stated that he would be accompanied by his father. It was not conveyed to him that only a union representative or colleague could accompany him to the meeting. He did not attend a meeting on the 9 March 2010 or e mail the respondent he had internet provider issues. During the year no one in Ireland knew what was wrong with him and he had to go to the UK and apply to the HSE for payment.
In 2009 he did not know what was wrong with him. He recalled posting the letter dated 20 February 2009 to the respondent in as he was having a biopsy that day. He could accept the respondent may not have received this letter.
He did not attend a meeting on 13 May 2010 and he could not face having a conversation on the telephone with HR as he felt uncomfortable. He was unable to attend a meeting on the 1 June 2010. A person could offer a huge amount of support by being in the room. He requested that the meeting be postponed until 16 July 2010. He had lost all trust in OHS. He could not attend a meeting unaccompanied. He would have met BL if he was prepared to give him the support he needed.
He was never aggressive or abrupt at a meeting. He did not mention anything to the respondent about returning on a phased basis and he wanted to establish if it was a safe place. He did not state the previous year he was fit to return on a phased basis. He reiterated that he had huge issues with OHS and no one in Ireland could deal with his medical condition.
He did not know what assurances the respondent could give him regarding safe and secure environment in work. He submitted his resignation on the 6 April 2011 He had lost all trust in the respondent. He did not actively seek week-end end work after he resigned. He sought employment in his local shop and other shops and he was never called for interview. He felt that he is fit to undertake cleaning work at weekends. He is now lifting weights and he could not do this in 2009 and 2010.
A number of witnesses gave evidence on behalf of the respondent. DB outlined the various roles that he had within the respondent. He had never met the claimant and he needed to meet the claimant to establish what had happened in February 2009. The claimant had made serious allegations against other individuals and the respondent wanted to reply to these. The respondent had the use of a courier service and the claimant insisted that all correspondence from the respondent be posted to him. DB was concerned about that the issues that the claimant had in February 2009 and in 2010 nothing had been done about them. He received an e mail from the claimant whereby he outlined that it was very stressful to have to attend meetings. The respondent arranged that the claimant attend OHS. The claimant could not attend and DB was unhappy as it was another delay and a cost to the respondent.
On the 12 July 2010 HR scheduled a meeting for the 16 July 2010 at 12.00. The claimant had mentioned that his father would be available.
If he had met the claimant he would not have walked into a room with a list of questions. That was not the way he operated. It was now July 2010 and he had never come across a situation like this previously.
DB met with UD who worked in the Administrative area of the Cleaning Department and UD was shocked when she heard of the allegations that the claimant had made. The respondent had the claimant’s account and DB compiled a report based on UD’s perception of the situation. The claimant’s letter to the respondent dated 20 February 2009 was never received by the respondent. There are a number of HR departments in the respondent and the HR director’s personal assistant had a note system whereby she recorded all correspondence. Any correspondence regarding an employee would be placed on the personnel file and that was how the respondent ultimately checked.
DL contacted him regarding what stage he was at with the he investigation and he thought that DB was delaying it. DB did want to meet with the claimant.
In cross examination he stated that he could not be sure if he ever looked at every medical certificate. On the 16 July 2010 he was going to meet the claimant. He may have told UD that he was dealing with the investigation. He formed the view that the claimant’s letter of 20 February 2009 was not sent to the respondent. BL did not work week-ends and the claimant never had any issue prior to this. Occasionally BL may have worked week-ends. UD came in to help employees at the week-end. He never got the opportunity to help the claimant. The respondent has an Employee Assistance Programme in place and it bent over backwards to help employees. The claimant mentioned that he was given an old employee handbook. This was completed a long time ago and was ahead of its time. The Employment Assistance Programme was outlined in the booklet, and the service is confidential.
In answer to questions from the Tribunal he stated the respondent was doing a cost recovery programme. It could have saved money if it got employees back to work.
UD in her evidence stated that she worked with the respondent for twenty five and a half years. She was employed as a cleaner for ten years and after that she was a senior administrator. She worked a five day week and was not rostered to work week-ends but she attended work every second Saturday. The claimant was one of the first employees to be employed at week-ends and he worked seven hours both on Saturday and Sunday. The claimant swopped shifts and she met the claimant on a number of occasions Employees absences were checked every three months. If an employee was absent four to five times over three months the employee would have to be spoken to.
UD met the claimant along with his supervisor BL on the 1st February 2009. UD asked the claimant why he had so many absences. The claimant told her he had flu, chest infection and he told her he had a blood disorder which was not fully diagnosed. UD was sympathetic towards him. The claimant’s supervisor told the claimant that working seven days a week could not be good for his health and he used the expression “all work and no play”.
The word leukaemia like illness was never mentioned at the meeting on the 1st February 2009. If the word leukaemia was mentioned that would have changed the tenor of the meeting and the claimant would be advised of where and who to go to for help. The claimant told them he felt tired and that his illness was being investigated and that he would keep them informed. No disciplinary action was taken against the claimant, this was after the first meeting and if there was a further meeting it would be a disciplinary. The first time UD heard about a blood disorder was at the meeting. The medical certificates which the claimant furnished outlined that the claimant had the flu, chest infection she was not sure when he was diagnosed with a blood disorder. The reason that the claimant came to the respondent’s notice was due to his sick leave absences.
UD disagreed that both she and the claimant’s supervisor were aggressive at the meeting. This would not be acceptable in the workplace. The claimant was asked could he improve his attendance. The meeting with the claimant lasted fifteen minutes. Platelets was never mentioned at the meeting BL asked the claimant what he meant by blood disorder. The respondent still has a cleaner at the weekend but in a reduced capacity. The respondent had to restructure and some employees were allowed to leave on voluntary severance. Employees that commenced the same time as the claimant were retained. If the claimant had told her that he had a leukaemia like illness she would have notified HR and the respondent would establish he needed counselling and that would be fully confidential.
BL the HR Manager/ Business Service manager outlined at the time of the claimant’s employment he was employer manager/ group relations manager. The Absence Management Policy was updated in 2009. Employees who had been absent due to long term sick leave were consulted to establish if they needed help in returning to work. In early February 2010 he spoke to the claimant’s mother as she wanted to know how the claimant could return to work. A meeting was arranged for the 12 February 2010. The claimant was invited to the meeting and agreed to attend. He received a call from the receptionist on the 12 February 2010 that there were two people in the lobby. He did not know who the claimant was and he introduced himself to the claimant. He was a little surprised that the claimant was accompanied by his father as the claimant’s father was not an employee. It was not a formal meeting. He spoke to the claimant and this took about two minutes.
The company policy allowed for a colleague or a representative to attend a meeting. He told the claimant that he would be happy to re-arrange the meeting. He did not recall the claimant saying why he felt the need to be accompanied. It was a very cordial conversation. He never had a situation like this previously and he wrote a note about it and that it was not normal practice.
He said to the claimant that it was obvious that he was uncomfortable about bringing a colleague or a representative. The purpose of the meeting was to discuss with the claimant the likelihood of the claimant returning to work and did he see himself returning to work. A meeting arranged for the 18 February 2010 did not proceed. By letter dated 3 March 2010 he invited the claimant to attend a meeting on Tuesday 9 March 2010. The claimant said on the 5 March 2010 that he had a very stressful year. The meeting of the 9 March 2010 did not proceed. He felt the claimant should go to OHS to establish if he could meet with the respondent. He had no further dealings with the claimant.
In cross examination he stated that he contacted Mr. F, Civil Service as he wanted to know if there were issues for the claimant working seven days a week. He agreed that one of the letter sent to the claimant had a tone to it and it was because he was frustrated and all he wanted to do was help the claimant. He could not recall of he received training in awareness/sensitivity.
AM was HR specialist at the time and no longer works with the respondent. The respondent contacted employees on long term sick to establish a date of return to work and assistance in returning to work. She did not attend a meeting with the claimant on the 12 February 2010. In June 2010 she was asked to arrange an appointment for the claimant with OHS. Another appointment was made with the claimant to attend OHS at the end of 2010. She was aware that the claimant’s illness was challenging and stressful. An appointment with OHS had to be rescheduled for 16 December 2010.
She received a copy OHS report at the end of December 2010 and it was not conclusive. The OHS doctor stated that the claimant did not answer a number of questions and could not give a return to work date. She felt that something must have happened at this appointment and she felt she should meet with the claimant to discuss the medical report she received. The claimant had written to the respondent the previous year and his doctor indicated that the claimant was fit to return to work and OHS doctorindicated that he was not.
In a letter dated 17 February 2011 he was asked to attend a meeting on 25 February 2011. The claimant outlined that he wished to have a person of his choice at the meeting. She felt that due to the length of the claimant’s absence that it would be okay for him to bring someone he was comfortable with. She endeavoured to facilitate the claimant.
She met the claimant on the 8 March 2011 and SM was also present. The claimant asked for a copy of the minutes. This was a very brief meeting. She was quite taken aback by the claimant’s attitude at the meeting, he was aggressive/hostile and agitated. The claimant did not give any indication of a return to work date. He needed assurance that he was returning to work. This was her first face to face interaction with the claimant. The claimant referred to the dignity and respect in the workplace. The claimant asked her could he be assured of a safe working environment. She told him that there were different things the respondent could do when he returned to work. The respondent tried to cover all areas and she had no idea what the claimant was talking about. It was a very short meeting which ended in a peculiar way. The claimant asked her if there was anything he could do in relation to a safe environment and then the claimant and his father got up and left.
Under cross examination she stated that the claimant did not tell her at the meeting that he was fit to return to work. When put to her that no assurances could be given to the claimant on his return to work she replied that the claimant did not give any specifics of what he was talking about. The claimant repeated over and over how the respondent could provide a safe working environment.
At the core of this case was the refusal of the claimant to adhere to the norms of practice in the respondent and throughout industry, namely that at meetings with management, employees are entitled to be accompanied by a trade union representative or work colleague. The claimant’s insistence that he would only attend meetings accompanied by his father created serious difficulties in this case. It is common practice to be accompanied by a trade union representative or by a work colleague at meetings. This practice was in place in the respondent company and was implicit in its Respect and Dignity at Work Policy which was sent to the claimant on the 4th May 2010.
This resulted in the claimant foregoing his opportunity to present his side of the story in that investigation of the issues raised by him in his complaint of 20 February 2009.
An indication that the respondent tried everything possible to resolve the case is indicated by the fact that they set aside company policy and agreed to the claimant’s father to attend a meeting with management on March 2011.
The claimant clearly had an issue arising from a meeting in 2009 with the respondent company regarding his attendance at work. There was a conflict of evidence regarding the manner in which this meeting was conducted. However, notwithstanding numerous attempts by the respondent to facilitate the claimant in airing his concerns regarding his treatment by the respondent at the meeting, in essence, he refused to engage with the company procedures as set out in its policy.
The respondent displayed a certain flexibility in allowing the claimant have an outside party attend with him for what were informal discussions. However the claimant displayed a certain intransigence with regard to facilitating meetings towards a solution to the problem. In all the circumstances of the case the Tribunal find that the claimant did not establish grounds for constructive dismissal and his claim under the Unfair Dismissals Acts 1977 to 2007 fails.
The claimant is not entitled to redundancy under the Redundancy Payments Acts, 1967 to 2007 and his appeal fails.
Sealed with the Seal of The
Employment Appeals Tribunal