ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004485
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 24/03/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Location of Hearing: Radisson Blu Hotel Cork
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is a Postman, who had commenced sick leave on 18 July 2012. On 26 February 2016, he was dismissed by the Respondent; a Postal Service .The complainant submitted a complaint to the WRC on 8 August 2016 that he had been unfairly dismissed.
The case was first listed for Dublin in January 2017 and was subsequently reassigned to 24 March 2017 in ease of the complainant.
The complainant had detailed that there were parallel Personal Injury proceedings currently before the High Court. I asked the parties whether they anticipated any difficulties in advancing the instant case and I was assured that both parties were agreeable to outlining the case from their particular perspectives. The Representative for the complainant subsequently submitted a written submission and a copy of the Statement of Claim which was then copied to the respondent. No further submissions were received.
Summary of Respondent’s Case:
The Respondent operates a Postal Service and employed the complainant on casual service in December 2003 and subsequently as a Postman. He was dismissed on 4 March,2016,to include notice for the substantial ground of
“Failure to fulfil the terms of this contract due to persistent non attendance”.
The Complainant had been absent on paid sick leave for almost 4 years from 18 July 2012 to the date of dismissal.
The Respondent submitted that the time period relevant for the Dismissal spanned 2012 to 2016.
The respondent confirmed that the complainant had lodged a Personal Injuries claim (workplace stress) against the company in respect of events which pre dated this claim.
Counsel for the respondent outlined the background to the case :
The respondent submitted that the complainant claimed to have suffered bullying arising out of a change in his delivery route since 2009. He had a level of absence of 65.5 days from 24 February2009 to 3 July 2012. The respondent had accommodated him through indoor duties, day duties and counter work .The complainant commenced sick leave on 18 July 2012 and did not return to work.
The respondent opened a log of key dates which catalogued the interaction between the company from 26 March 2012 to the outcome of the appeal of the dismissal on 18 February 2016 .The respondent outlined that the company had been unsuccessful in securing an engagement from the complainant in relation to his absence from work over the course of 18 occasions , which then led to the activation of the company Disciplinary Procedure inclusive of notification of consideration of dismissal in January 2015.
The respondent made a detailed submission on the record of interaction between the company and the complainants appointed Solicitor. The respondent had been in ongoing contact with the complainants Solicitor and received a submitted GP medical report for the complainant dated January 7 , 2015, which stated that :
1 It would be impossible for the complainant to return to work “ while the present work conditions are in place “
The complainants Solicitor sought suggestions for what might be available for his client? .The company offered to place the disciplinary action on hold and to set up a meeting between the HR Manager ,( Mr HR) and the complainant to address these suggestions . This meeting did not materialise as they was no response from the complainant.
The respondent wrote to the complainant on 25 August, 2015 informing him that the company had no alternative but to advance the disciplinary procedure by way of a recommendation for his dismissal. There was no response from the complainant , and the complainant was dismissed on 10 November ,2015 on the grounds of
“ failure to fulfil the terms of your contract of employment as a result of your non attendance in the workplace, based on the fact that your continued absence from work in circumstances where the company has made many attempts to facilitate you in a return to work with the support of the Occupational Health Service “.
The complainant was offered the option of an oral appeal hearing in addition to or as an alternative to furnishing a written explanation.
Solicitor for the complainant lodged an appeal on 17 November, 2015, which was considered by Ms HRM1, Acting Head of Employee Relations and the dismissal was upheld. The grounds of appeal had not stated that a medical review was in existence such as to prevent either a return to work or an engagement with the respondent.
The Respondent submitted that by providing Occupational Health Support in the form of Nurse contact initially followed by the company Occupational Health Physician, this amounted to a sufficient compliance of any standard that the law requires .The respondent contended that it could not be the position in Irish law that it must go further to secure the workers physical attendance with these services.
The Respondent submitted that the decision taken to dismiss the complainant came within the range of reasonable responses open to the company, which also “demonstrated a level of patience, fairness and facilitation not expected or required of an employer”.
The Respondent relied on a Scottish ( Inner Sessions) Judgement on appeal from a UK EAT :
BS V Dundee City Council  IRLR 131, and applied a three themes test to the instant case.
1 The employer must ask the question how long it can wait for the worker to recover. The Respondent waited almost four years, whilst providing paid sick leave.
2 The workers views are relevant and can indicate both positively and negatively towards dismissal .The Respondent did everything reasonably necessary to ascertain the complainant’s views, but he did not say he would soon be well.
3 The Employer should inform itself on the medical position and can accept medical advice presented .It is not required to pursue medical evidence.
The Respondent submitted that the dismissal was fair in accordance with the standards set by the High Court in Bolger V Showerings ltd[ 1990] ELR 184
The Respondent contended that the complainant had not separated the parallel proceedings currently before the High Court from his duty to fulfil his contract. The complainant repeatedly claimed that he would return to work if his working conditions were changed.
Evidence of Mr Human Resource 1 ( Mr HR 1)
Mr HR 1 stated that the complainant had not demonstrated any co-operation with the company procedures. His decision to dismiss the complainant on this and the absence of any change in attitude by the complainant .The complainant had passed the threshold for a reasonable amount of sick leave .He had been offered alternative work inside , at the counter at the processing plant ,but did not take it up . The complainant was invited to participate in the process leading to consideration of his dismissal , but he did not engage .In response to questions from the Adjudicator , Mr HR 1 confirmed that the complainant would be in receipt of pension at age 66 .
Evidence of Director of Employee Relations. Ms HRM 1
Ms HRM 1 gave evidence of 20 years experience in Human Resources and Industrial Relations .She managed the appeal and worked off a referral from Mr HR 2 (Operational Hr), a copy of the file and the grounds of appeal. An appeal hearing is normally by oral submission, but Ms HR 1 knew the complainant was not going to be in attendance.
She knew the Operational Hr Manager to be a compassionate Hr Manager. She stated that she had no involvement in the case before the appeal.
She told the hearing that it was company Hr practice to follow the advice given by the Chief Medical Officer. If there was no evidence of Psychological /medical collateral, the procedure informed a managed return to work post sick leave.
Ms HRM 1 stated that she did not have sight of the Legal file held by the company in preparation of the PI claim. She stated that if there had been a Psychiatric Report available, she would have consulted the CMO .The complainant was paid full pay from 18 July 2012. The complainant had not made an application for Permanent Ill Health pension. He had to be replaced during his absence.
During cross examination, Solicitor for the complainant asked Ms HRM about the GP report dated 29 April 2014?Ms HRM confirmed that she had seen the report but did not form a view based on one letter .She considered the entire file . She had not consulted with Dr OHD. The complainant had been invited to appear for the appeal but he submitted grounds of appeal in writing via his Solicitor.
Evidence of Dr OHD ( Occupational Health Physician /Chief Medical Officer )
Dr OHD recalled receiving a referral from the Operational Human Resource Manager in August 2012.Users of the service is referred to as clients/employees but not as patients. He was aware that the complainant reported being overloaded at work. He had not signed the consent form to release information from his treating Doctors and Dr OHD stated that the complainant “was not co-operating with our processes”. Consent followed in January 2013 linked to GP information release only but not that of the Specialist. Dr OHD received a report from the Complainants GP dated 4 December 2013 stating that the complainant was physically and psychologically well. This prompted him to share this information with the Operational Hr Manager with a view to scoping out a return to work for the complainant.
Dr OHD had arranged to travel to the complainant’s home city to review him in August 2014 and the complainant rang the Dublin office on the morning of the consultation to indicate he was unavailable to attend. Dr OHD deemed the complainant fit to work indoors. He was constrained from seeking collateral information from other Specialists as the consent submitted by the complainant only covered his GP.
In response to the complainants Solicitors questions, Dr OHD confirmed that he had not had cause to review the complainant on psychiatric grounds as the report he had received from his GP indicated that he was mentally and physically well.
Dr OHD confirmed for the hearing that any application for retirement on grounds of ill health required a separate assessment and a Specialist Report. He had no involvement in this .He did tell the hearing that the complainant had not sought to make another appointment following the August 2014 no show.
Summary of Complainant’s Case:
The Solicitor for the Complainant outlined the claim for Unfair Dismissal .He submitted that due to bullying, harassment, oppressive and unreasonable treatment in his workplace, the complainant suffered an acute breakdown of his health leading to a continuing deterioration. The Respondent was aware of this and had the complainant medically examined by the Chief Medical Officer who continued to liaise with the company.
The Representative for the Complainant stated that the complainant suffered from an Adjustment disorder with secondary physical symptoms. He also submitted that there was a disconnect in how the company had addressed the PI claim versus the Human Resource management of the case. He contended that the company was in full possession of the medical evidence which was submitted in support of the PI claim and thus the company was on notice of the complainant’s mental health status, which in turn should have prompted a more probative approach. He submitted that the company should have known that he complainant was attending a Psychiatrist .The company ought to have asked whether the complainant was fit to return to work.
The complainant fully engaged with the respondent in a meaningful way .The respondent despite knowing or ought to have known how the applicant could have been accommodated, rather than meaningfully engage with the applicant and ignoring the correspondence between them and his legal advisors/GP proceeded to dismiss him .The Complainant’s representative maintained that the complainant should have been asked about alternative placings within the company.
Notwithstanding the submissions in support of the appeal, the decision to dismiss was affirmed .Independent medical expert opinion was always available to the company.
The complainant was unable to work post dismissal and was living on an Invalidity Pension. No evidence of loss or mitigation was submitted.
Evidence of the Complainant :
The complainant confirmed that he couldn’t engage with the respondent due to a psychological detachment .He described his condition as the “Lights being on …..” He found it easier to deal with his own Doctor but stated that he had suffered due to his condition.
The complainant told the hearing that he was aware of the role of the company doctor .He understood that if he was ill the company doctor would “look after you”. He stated that he had not been treated favourably by Dr OHD as during an early consultation he was informed that he was only to answer the Drs questions rather than ask his own questions .When he became ill, he went to see the Nurses in 2012, he believed that he had been thrown around on the postal routes, but believed that he should have been referred to Dr OHD. He always told the Nurses that he wasn’t well.
In response to questions from the Respondent counsel, he described a “Physical Out of Body Experience” during the period of sick leave from 2012.He received medical certs from his Doctor and submitted these , he was not aware of Medical Reports .He did not know what his GP was writing about him but he trusted him .
He did not recall a lot about the time leading up to his dismissal. He had no recollection of being offered work in cleaning. He was ill and understood that he had to get well .He believed it easier if DR OHD came to see him, but was unable to meet with him when he did come to see him .He thought no more about it.
He attended for Counselling and he understood that his GP suggested that the GP Practice Surgery be used as a meeting place for his meeting with DR OHD. He had hoped for a better work environment. He denied feigning an appreciation that he did not understand the events as they arose. He confirmed that he had not raised a formal grievance in relation to his working conditions and he had lost trust in the company.
The complainant’s representative concluded by stating that the complainant’s ongoing organic physical and deep rooted psychological problems hindered his capacity to engage with the company. The company knew this. The complainant’s GP endorsed this position.
Findings and Conclusions:
I have listened carefully to the submissions of the parties and I have considered the evidence adduced in addition to the written submissions.
The law on Unfair dismissal is outlined in Section 6 of the Act.
Section 6(4) (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
( b) the conduct of the employee,
The Burden of proof is on the respondent to demonstrate that the reason for dismissal is due to one of the matters specified in Section 6(4) or some other substantial reason. It is not the role of the Adjudicator to critique the actions of the respondent; rather I must decide whether the decision taken to dismiss the complainant fell within a range of reasonable responses open to the respondent?
In considering this case, I was fully aware of the pre-existence of the Personal Injuries Case, lodged in 2011. Neither Party referred to the substance of the case during the hearing. I accept that the complainant is entitled to receive a decision in his Unfair Dismissal case.
However, I formed the view in the early stages of my consideration of the facts of the case that this case was overshadowed by the Personal Injuries case, which was lodged first in time. I am mindful of the recent Court of Appeal finding in Culkin V Sligo County Council  IECA 104 CA IRL, where Justice Hogan found that that a subsequent Personal Injuries claim was not compromised by an existing unsuccessful equality claim. However, I found that the instant case was overshadowed by the silent entity of the personal injuries case.
I say this primarily due to the approach adopted by the complainant side in the case.
As I listened firstly to the respondents outline of the case , I was struck by the persistently high level of contact time engaged in and recorded by the Respondent staff involved in the case .I was struck by the diligence of the records maintained and the skill demonstrated in management of this long term absence.
While I did not have sight of the Management of Attendance Policy, I accept that the company engaged in a supportive management of attendance from July 2012. However, most of all , I noticed that considerable time and space was permitted in which to grow a return to work for the complainant , which even incorporated in a relaxation of the disciplinary procedural schedule in June 2015 to explore a scoping out the potential for a return to work .
I began to understand the difficulties faced by the complainant as he shared his evidence with the hearing. It was clear to me that the complainant formed the view that the role of Occupational Health Department was something he was uncomfortable with from an early stage in his 2012 -2015 absence.
In particular, I was struck by the partial consent to release information from his treating team to the Occupational Health Team. I have decided that this was a missed opportunity in the face of both parties having an early shared goal of getting the complainant back to work .I also found a level of secrecy around this information link up that goes to the root of the case.
I appreciate that a parallel personal injury case was underway throughout the life time of this case and I considered the submissions made by the complainant’s representative that the details of mental distress suffered by his client were in possession of the company’s legal dept. which should in turn inform employment matters
While this very well might be the case, I find that there was an obligation on the complainant to navigate through the parallel proceedings so as to submit what ever information was relevant at the relevant time to the relevant party if it was to assist .I found no evidence of a Consultant Psychiatrist report such as the complainants representative insisted should have been in being. Given the restrictions placed on the release of information outside GP reports, I can only assume that this information may have properly been in the hands of the complainant side.
While I accept that the evidence given by the complainant pointed to a very frail and distressed individual who expressed a strong disconnect with his workplace, I did not accept his “stalled and not restarted “approach which he adopted with Occupational Health Department and his Management team was either fair or useful .I asked the complainant whether he had sought to reschedule the Occupational Health Consultation when he cancelled the appointment in August 2014? He had not.
I also inquired whether the complainant had made an application for ill health retirement. , he had not. I very taken aback by the fragility of the complainant and I were happy to accommodate his need for frequent breaks during the course of the hearing.
I did not meet the Complainant’s Doctor, but I considered his medical reports, the last of which was submitted in support of the appeal dated 30 December, 2014. I accept that these documents do not have probative value but they give a viewpoint, at least. The complainant’s Doctor was not in a position to recommend a return to work for him at that point due to an unspecified reference to “the present circumstances in the workplace”. On the other hand, I heard very cogent evidence from the respondent Occupational Health Physician who recounted an extensive episode of Support and Direction offered to the complainant from 2012 onwards which was accompanied by a sense of surprise that this level of support and direction was not accepted by the complainant. I found that the Respondent Occupational Health Department adopted a highly pro active approach in this case and were held back by the partial release of Specialist Medical Details, which remained with the complainant.
I have, therefore, formed the view that the Personal Injuries case became the sub plot in this case and may well have served as a point of confusion for the complainant. I detected from his evidence that he was unsure just where to focus his efforts in relation to his workplace .It struck me that he was not a real time participant in his own case.
I considered the antecedent events which occurred prior to the decision taken to dismiss the complainant. I found that the company gave an extended period of time to the complainant to submit a document or present in person to influence the decision making in relation to activation of the disciplinary code. The complainant responded in seeking to scope out suggestions for the way forward but did not respond when the company reached out to the complainant on June 3, 2015 by way of offering “one further “meeting at local level. I found this lack of response understandably corralled the respondent into the decision making process that lead to dismissal. There was no evidence submitted of the complainant’s consideration of these key invitations. The complainant was given over a month’s notice that his dismissal was being actively recommended, without submitting points for consideration.
I found it unusual that the Respondent did not hold a formal hearing to co-inside with the decision taken to dismiss an employee .I would have preferred to see such a hearing occur but accept that a formal hearing was offered in advance of and in the aftermath of the decision taken to dismiss the complainant at Appeal .Neither invitations were responded to in seeking an oral hearing. The Complainant based his submissions on written format.
I have considered the case law advanced by the Respondent. In terms of the Scottish Inner Session case of BS V Dundee City Council, on appeal from the UK EAT I noted some exceptions to the application. The claimant in that case had stated family problems and a query around a criminal offence at the early stages. The marked difference was that BS was recorded as being fully participant in the company procedures and was not a candidate for ill health retirement. I can however appreciate the persuasive authority in the case where it relied on past case law to guide a concurrent approach to deciding what was fair and reasonable when in the case of long term absence ( over 1 year) “ There was no day light at the end of the tunnel” , i.e. No confirmed return to work date available.
“Three important themes emerge from the decisions in Spencer V Paragon Wallpaper ltd  ICR 301 and Daubney.
First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasize, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.”
I found this excerpt to be some what limiting in terms of the instant case where the role of Occupational Health was an early player and together with the management team adopted a fair and reasonable “ wait and see “ approach for as long as possible .
The respondent submitted that the respondent in this case had waited long enough for the complainant to engage and could not to reasonably expected to wait any longer .It was clear that the company did not have a Uniform cut off date or an absentee tolerance level .I accept that the company remained opened to persuasion by the complainant and his Medical Team and this information was simply not forthcoming.
The reason for dismissal, not remedied on appeal pointed in part to the complainant’s conduct rather than his incapacity for work alone.
In Bolger V Showerings ( Ireland) ltd  ELR 184 ,in the case of a Fork lift Driver ,whose GP sent a note stating that the complainant felt unable to undertake his previous job at any time into the future and that tests were awaited .Lardner J at the High Court , set a test for the employer to demonstrate that the dismissal was fair
1 Was Ill Health the reason for Dismissal?
2 This was the substantial reason
3 That the employee received fair notice that the question of his dismissal for incapacity was being considered
4 That the employee was offered an opportunity to be heard
I have established that ill health was a partial reason for dismissal, the issue of the complainant’s apparent non co-operation with company procedures co-existed with this reason. These were substantial reasons.
I am satisfied that the complainant was on sufficient and clear notice that his job was at risk due to his incapacity and his apparent lack of engagement in a rehabilitative return to work over the course of 2012-2016.
I am satisfied that the complainant was offered an opportunity to be heard and chose not to accept the multiple invitations. I also found that the Respondent presented a number of creative options to explore a veritable return to work. I found that the complainant was not sufficiently participant in his own case so as to influence his fate and refrained unreasonably from a total engagement process with the company Occupational Health Department.
In conclusion I have found that the Respondent had the substantial reasons of Incapacity and Lack of engagement in the company procedures of rehabilitative return to work as the reasons for dismissal. I find that the decision taken to dismiss the complainant, while regrettable and very unfortunate to be fair in all the circumstances.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found that the complainant was not unfairly dismissed.
On the conclusion of the hearing in this case, where we had worked through without a rest break by mutual consent, I noticed that the complainant had stood up to prepare for his departure, only to sustain an episode of weakness, where he needed assistance.
I am very grateful for the immediate collective approach of support from both parties to the complaint, the Hotel staff and in particular to Dr OHD and the Respondent Solicitor who oversaw the complainant’s return to well being . On the following Monday, the complainant’s representative contacted the WRC to confirm that the complainant had indeed made a full recovery. I was pleased to hear this news.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Claim For Unfair Dismissal