ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007662
Revenue Protection Officer
Public Transport Provider
Complaint/Dispute 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: 28/08/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with 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 was employed as a Revenue Protection Officer from 11th July 2007 to 4th October 2016. He was paid €3,097 per month. He has claimed that he was unfairly dismissed and has sought compensation.
Summary of Respondent’s Case:
The Complainant was fairly dismissed on grounds of gross misconduct. He had a long history of absenteeism throughout his employment. Each absence was considered on its own merit and he has been given substantial leeway. On 24th May 2016 while at work the driver engaged a braking manoeuvre which caused him to lose his footing. He reported that he struck his head and back on an upright pole. CCTV footage does not support that position. He was taken for a medical assessment and was certified for two days only. He continued to supply medical certificates citing neck and back pain. Given his history of absenteeism and the apparent inaccuracies in the event of 24th the Respondent decided to engage the services of a private investigator to monitor his movements. He was observed driving to and using a gym. He operated heavy weights up to 60 kg and running on the treadmill. Following this investigation the Respondent initiated an investigation into potential abuse of the sick pay scheme. At each stage of investigation disciplinary and appeal processes that followed he was afforded his full rights in accordance with fair procedures and the principles of natural justice. He was at all times represented by his trade union. A disciplinary hearing was held on 21st September 2016. All evidence was considered together with medical evidence and representation from his union. The conclusion arrived at was that he had abused the sick pay scheme between 24th May and 5th August 2016 and a decision to terminate the employment was taken. He appealed the decision on 20th October 2016 and the decision to dismiss was upheld. A further appeal was heard by the Managing Director on 25th November 2016 and the decision to dismiss was upheld.
The Complainant applied for the company sick pay. While he alleged that he could not drive and had neck and back injury he was observed driving to and back to the gym, he was observed lifting heavy weights and running on a treadmill. The company investigation concerned an abuse of the sick pay scheme. He was referred twice to the company doctor. The company doctor advised that lifting and running were not in keeping with physical therapy for such an alleged injury. He initially denied lifting weights but at a subsequent meeting he admitted to using light weights.
The reason to dismiss was based on this absence only. He was accused of abusing the sick pay scheme, which was a breach of trust. They accept that trust and confidence was not referred to in the correspondence but a misuse of the sick pay scheme is a breach of trust and confidence. He told the company doctor that he could not lift and that he was not driving. The company doctor certified him fit to work on 4th August 2016. The company doctor clearly advised that “Lifting heavy weights and running on a treadmill would not be part of a standard medical rehabilitation programme”. So the only option facing the Respondent was dismissal.
He was clearly made aware of the allegations. The net facts of this case are quiet clear. He was given a right to defend himself at each stage of the investigation, disciplinary and two appeal hearings. The dismissal was both substantively and procedurally fair. This complaint is rejected.
They also stated that the Complainant has not made any attempts to mitigate his loss. He has been fit to work since 17th August but has decided to only work at driving a taxi or bus. He has ignored all other relayed work such as deliveries etc.
Summary of Complainant’s Case:
The Complainant stated that he injured his neck and back at an accident at work on 24th May 2016. His GP certified him unfit for work. He was an experienced gym user and his GP recommended physical therapy and allowed him to use his own discretion. He accepts that he drove his car to the gym. He denies using weights and running on the treadmill. The private investigator was doing his first assignment since he set up this company and was obviously keen to impress him client. He drew all the wrong inferences from what he thought he observed. He accepts that the Respondent offered him the right to defend himself and the right to representation at all stages of the investigation, disciplinary hearing and appeal hearings. However the Respondent failed in the specifics of the allegation. He was not accused of a breach of trust; this was not raised until after the dismissal. The sanction of dismissal was too severe, alternatives should have been explored. They failed to take into account his years of credibility with the Respondent. So the dismissal was both substantively and procedurally unfair in that the sanction was disproportionate and he was not informed of the breach of trust allegation.
He is seeking the redress of compensation. He has not worked since. He has decided to move into the area of taxi driving and /or bus driving. He is currently seeking to qualify as a driver. He has to be qualified before he can work in that area. He was certified fit to return to work on 17th August 2016.
Findings and Conclusions:
The reasonableness of an employer’s conduct is a paramount consideration in all
unfair dismissal claims, as set out in Sec 6 (7) of the Unfair Dismissal Acts 1977-2007.
The standard of reasonableness is an objective one which is judged by; “the objective standards of the way in which a reasonable employer in these circumstances in that line of business (at that time) would have acted.” Watling & Co v Richardson (1978) EAT 774/77; Boucher v IPC UD 882.
In Hennessey v Read & Write Shop Limited UD 192/1978, the EAT described the test of reasonableness;
(a) the nature and extent of the enquiry carried out by the employer prior to the
decision to dismiss the employee; and
(b) the employer’s conclusion following such enquiry that the employee should be
“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”
Regarding guilt or wrongdoing; O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing . The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.
In this case I note the conflict of evidence on this case concerning both the alleged injury and the gym activities.
I note that the Complainant was firstly only certified absent for two days.
I note that following the incident on 24th May 2016 he did not return to work.
I note that the company doctor had certified him fit for work but he did not return.
I find the assertion that his GP recommended physical therapy uncontrolled most unusual.
I note that he told the company doctor that while he had a car he was not driving yet he was observed driving to the gym and he has accepted this.
I note the conflict of evidence regarding what took place at the gym.
I find that private investigator’s evidence more believable, so on the balance of probability I find that he was lifting weights and running on the treadmill.
I note that he was claiming sick pay while he was carrying out these gym activities.
I note that he was employed as a revenue protection officer therefore honesty is particularly important and pertinent to this employment.
On the balance of probability I find that he had claimed sick pay when he was fit to return to work.
Therefore I find that the Respondent had discovered a very serious breach concerning honesty and integrity, trust and confidence.
I find that the dismissal was substantively fair.
I note that at all stages the Complainant was made aware of the allegations made against him. I note that he was given the right of representation and the righto defend himself.
I note that he was represented by his trade union at all stages of the investigation, disciplinary hearing and appeal hearings.
I note that he was granted a second appeal hearing with the Managing Director.
I accept that trust and confidence were not stated in the letters setting out the allegations; however I find that it was reasonable for the Respondent to infer this with an accusation of misuse of the sick pay scheme. Therefore trust and confidence was at the heart of the allegation.
I find that the dismissal was procedurally fair.
I find that this dismissal was not unfair and the complaint fails.
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.
For the above stated reasons I have decided that the dismissal was not unfair and that this complaint should fail.
Workplace Relations Commission Adjudication Officer: Eugene Hanly