ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010247
Parties:
| Complainant | Respondent |
Anonymised Parties | A maintenance worker | A public transport company |
Representatives | UNITE Union | The Respondent Industrial Relations Department |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013336-001 | 28/08/2017 |
Date of Adjudication Hearing: 11/01/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 28th August 2017, the complainant referred a complaint of unfair dismissal to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 11th January 2018. The complainant attended the adjudication, accompanied by his father. The respondent was represented by its Industrial Relations Department. Three witnesses spoke on its behalf, referred to in this report as the Production Planning Manager, the Fleet Manager and the Manager.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The complainant commenced employment with the respondent on the 2nd February 2001 and this came to an end in 2017. The complainant claims unfair dismissal and the respondent denies the claim. |
Summary of Respondent’s Case:
The respondent outlined that the complainant’s employment came to an end in circumstances where it had no option but to deem that he had abandoned his employment. There had been longstanding attendance issues and in 2013 the complainant was placed under the care of the Chief Medical Officer due to his medical issues. It submitted that the complainant had on occasion failed to abide with the requirements of the Welfare Scheme when he was incapacitated. In July 2014, the complainant was facilitated with a new role. There were ongoing issues with the complainant’s attendance and the respondent engaged in corrective coaching with the complainant. After this situation became progressively worse, a final written warning was issued in February 2015. The complainant was out ill for 180 days in 2016 and failed to attend several medicals. The Chief Medical Officer stated his opinion that there was no underlying issue why the complainant could not attend work.
On the 16th June 2016, the respondent met with the complainant and his father where he was informed that his employment was in jeopardy and that he had to improve his attendance and comply with company procedures. The complainant was facilitated with a further transfer and commenced a new role on the 18th October 2016. He was injured in a workplace accident on the 20th October 2016 and went on certified sick leave from that date. The respondent asserts that the complainant did not attend several medical appointments in February and March 2017. A manager spoke with the complainant on the 24th March 2017 regarding the serious nature of the complainant failing to attend appointments and arranged a further appointment. This was arranged for the 29th March 2017 and the appointment was sent to the complainant by WhatsApp. The complainant did not attend the appointment and did not contact the respondent. It wrote to the complainant on the 30th March 2017 to say that he had abandoned his employment. He was taken off payroll on the 29th April 2017.
The respondent outlines that structures and interventions were put in place to assist the complainant. It submitted that medical certificates do not provide certification of fitness for duty. The respondent’s Welfare Book required the complainant to attend the Chief Medical Officer. It commented that the WhatsApp message of the 29th March 2017 was marked as read. The respondent said it relied on two High Court decisions in relation to no fault terminations: Bradshaw v Murphy [2014] IEHC 146 and Hughes v Mongodb Ltd [2014] IEHC 335.
In correspondence exhibited by the respondent, the first formal letter to the complainant issued on the 6th November 2013 (although it is undated) following their meeting. The manager of the complainant’s reassigned place of work wrote to him on the 9th September 2014. There is a handwritten diary entry of the 23rd October 2014 following a meeting with the complainant regarding procedures. A written warning was issued on the 13th January 2015 and lasted for nine months on the complainant’s file. The respondent submitted that the complainant had been given three warnings. While the respondent has a grievance and disciplinary policy, this could not be used as the complainant failed to attend for duty. The respondent could not get him to turn up for work or to attend medical appointments. Notice pay was not paid. It said that annual leave has not been paid and the respondent accepted that this is owing to the complainant. The complainant has not disputed receiving the WhatsApp message. The respondent asked the complainant how it should communicate with him. He said that correspondence could be sent to her parents’ address and they also agreed to use social media.
The respondent submitted that it went to extraordinary lengths to facilitate the complainant and the Chief Medical Officer also made numerous interventions. They met again with the complainant to explain the importance of attending work and proposed another transfer, also within the same site. The respondent could not apply process where the complainant would not engage. It submitted that capability were the grounds for this dismissal and that it met the legal requirements. It outlined that it is for the Chief Medical Office to assess fitness for work and medical certificates were not conclusive evidence. It commented that the complainant attended previous medicals while out sick and attended the meeting of the 24th March 2017.
The Production Planning Manager gave evidence that he first managed the complainant in 2014 as he had been asked to facilitate his transfer. The complainant was anxious to get back to work. He started in the role in mid-2014 and there were incidents of non-reported absences. The line manager tried corrective coaching but this did not work. The Production Planning Manager then intervened. There were occasions where the complainant missed medical assessments. He met the complainant and his father and highlighted the importance of attending work and appointments. He empathised with the complainant and asked him to keep communication open. The complainant then attended medical appointments and work, but in 2016 the issues re-occurred. Two colleagues met the complainant, again accompanied by his father, and the complainant committed to changing. He was transferred role. After the workplace accident, the complainant did not engage in processes and missed appointments. He did not respond to registered letters. He was unfit to work because of the foot injury, but it was the respondent Chief Medical Officer who is their arbitrator. The Production Planning Manager said that it was with a heavy heart that he sent the letters. There had been repeat behaviour over years. The complainant missed over 450 days in recent years. He later received a phone call from the union to ask about appealing the process. He consulted with HR. The complainant could not avail of the internal processes as he was no longer an employee.
The Fleet Manager gave evidence that he had made a previous arrangement to meet the complainant. The appointment of the 23rd March 2017 was not confirmed and while the complainant attended, he was off site. They then arranged meeting for the 24th March 2017. The complainant confirmed his address and phone number. He spoke with some of the lads on the floor and was in good form. They used social media to contact the complainant regarding the 29th March 2017 and the WhatsApp “ticks” came up almost immediately. It looked to the manager that things were good. They communicated a great deal on WhatsApp or by phone. The Fleet Manager begged the complainant to attend the Chief Medical Officer but he had not said that it would take a week. In cross-examination of the Fleet Manager, it was put to the Fleet Manager that the letter of the 7th July 2017 from the Director of Human Resources wrongly states that the complainant failed to attend a meeting on the 23rd March 2017. The Fleet Manager replied that the 23rd March 2017 had been put forward as a possible date but the complainant did not confirm the appointment. He said that they agreed that the letters would go to the father’s address. This had worked before.
A manager gave evidence of sending the invitation letters to the complainant’s house and to his parents’ address. He said that it beggared belief that it was only the official communications that the complainant missed or had not read. It was the non-compliance with the welfare scheme that would have led to the final letter stating abandonment of employment. The incident cannot be taken in isolation and a huge amount of effort has been undertaken to get the complainant into duty. The whole picture shows that they went beyond the call of duty for the four years. |
Summary of Complainant’s Case:
In submissions, the complainant outlined that he received a letter on the 30th March 2017 to say that he was being removed from pay-roll on grounds of abandonment of employment. The complainant does not accept that he abandoned his employment and what occurred was outside of the agreed disciplinary/grievance procedures. He was certified at this time as unfit for work due to a broken foot and this remained the case until May 2017. Since then, the complainant has been in receipt of Illness Benefit. The complainant outlined that he has suffered from severe depression for many years and this led to many absences. He had not known of the scheduled appointments with the Chief Medical Officer of February 2017. He attended a meeting arranged for the 23rd March 2017, but the manager did not attend. The complainant attended a meeting the following day and it was agreed that an appointment with the Chief Medical Officer would be arranged. The complainant submits that he never received notification of the appointment of the 29th March 2017. He states that it is incorrect to say that this was the third appointment he missed. He submits that the respondent welfare scheme does not set out where an employee’s employment can be terminated or deemed abandoned. In evidence, the complainant stated that no notice pay or annual leave was paid and that they are not referred to in the complaint form. His mention of a “missing letter” arose from the reference in the Director of Human Resources’ correspondence to a letter being issued for the appointment of the 29th March 2017. No such letter has been produced.
The complainant outlines that it is not disputed that the respondent assisted the complainant, but it was the broken foot that was the trigger for his dismissal. The respondent did not engage the disciplinary procedure in taking this step. The disciplinary procedure should have been invoked. There is also a conflict over whether there was a meeting scheduled for the 23rd March 2017. It is unfair that the respondent does not record that the meeting of 23rd March 2017 did not take place. The complainant said that he did not get the letters for the two February appointments as they were sent to his parents’ address. There was no letter for the 29th March 2017 appointment even though the respondent said there was. The complainant was not fired on capability grounds but for not going to appointments. He had broken his foot at work and had a medical certificate saying he was unfit. They acted despite this letter. He was not fit to be in work.
The complainant commented that the letter of the 30th March 2017 was sent by registered post. The respondent was asked to arrange another CMO appointment, but refused to do so. The complainant said that while he received the WhatsApp message, he only read it afterwards. The complainant said that the main issue related to the period from February 2017 and the lack of procedures, including no letter being sent. The respondent did a lot for the complainant but the issue was the abrupt ending of his employment. As a worker, the complainant is entitled to procedures. The February dates are “scrubbed” as the notification was only opened after the dates as they had been sent to the father’s address. The disciplinary policy was not followed and dismissal unfair. The complainant said that he did not agree that letters should be sent to his father’s letter. The letter for the 3 February 2017 appointment was delivered by hand to the parents’ address and was missed as placed in an already used letter. The notification of the second February meeting went via WhatsApp. The dismissal letter only addresses the Feb and March appointments so a wider view cannot be taken. |
Findings and Conclusions:
It is clear that the respondent has gone to great lengths to facilitate the complainant with ongoing health issues. Those issues have impacted on the complainant’s attendance at work and in attending medical and other appointments. The respondent gave evidence of accommodations provided to the complainant, including new roles. The issue here is whether, pursuant to the Unfair Dismissals Act, the ending of the complainant’s employment was not unfair.
The respondent’s letter of the 30th March 2017 refers to the abandonment of the complainant’s employment in the failure to attend the medical appointment of the 29th March 2017. I note in Meenan “Employment law”, 2014, at 20.68, the author states “It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.” Applying this, I find that the respondent’s letter of the 30th March 2017 amounts to its dismissal of the complainant. The date of dismissal is the 30th March 2017.
In assessing the fairness of the dismissal, I note that the Welfare Policy does not provide for the termination of an employee’s employment. The respondent accepted that it had not engaged the disciplinary policy or a dismissals procedure. There was a conflict in evidence regarding whether the notification of appointments was received or noted. On balance, I am satisfied that the WhatsApp messages were opened. I am satisfied that the complainant consented to letters being sent to his parents’ home, although it is far from clear that the first February notification was received. Even resolving these issues in the respondent’s favour, there remain significant difficulties with how it proceeded to dismiss the complainant. The first set of difficulties arise because the latest absence was of different order to previous ones. There was clearly a medical issue, certified by a tertiary hospital. While the respondent emphasises the authority of its CMO to make fitness decisions, it is hard to see, in these circumstances, how the CMO would have reached any other finding. The more fundamental issue arises from the failure to engage in either a dismissals or disciplinary procedure. The respondent went straight from the failure to attend an appointment to dismissal. This is sufficient to find that the dismissal was unfair.
The complainant is a longstanding employee of the respondent. While the attendance issues are significant, I note that the complainant has no other issues arising in his employment. Given the lack of procedure in the dismissal, the redress that is just and equitable is re-engagement. This allows the complainant to return to his employment and to retain service since the commencement of his employment. If it believes there are grounds, it will be a matter for the respondent whether it engages a formal procedure to address the complainant’s attendance or other issues on his return to employment. |
Decision:
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.
CA-00013336-001 I find that the complaint made pursuant to the Unfair Dismissals Acts is well founded and I order re-engagement on the following terms: the complainant shall be re-engaged by the respondent to his role within 42 days of the date of this report and his continuity of service shall be maintained from the 2nd February 2001. |
Dated: 13/04/18
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act Attendance at work No “self-dismissal” Re-engagement |