ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009503
Parties:
| Complainant | Respondent |
Anonymised Parties | A Technician | A County Council |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012476-001 | 13/07/2017 |
Date of Adjudication Hearing: 15/02/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant was employed by the respondent as a Technician from 26th November 2005 until his dismissal on 7th March 2017. The respondent is a County Council. The complainant was paid a gross fortnightly salary of €1,500. A complaint under the Unfair Dismissals Act was lodged with the WRC on 13th July 2017. The preferred redress of the complainant is re-instatement, the preferred redress of the respondent is compensation. The complaint has made efforts to find other employment but has been unsuccessful. |
Summary of Respondent’s Case:
The respondent provided a detailed written submission. The respondent believes the termination of the complainant's employment was reasonable and requests that the claim of unfair dismissal be dismissed. The respondent submits that the complainant was dismissed by virtue of his failure to report for duty having been certified medically fit for work on two separate occasions and as requested by the Council on three occasions. By way of background the respondent submitted that in June 2016 the complainant submitted a Department of Social Protection (DSP) medical certificate stating that he was unfit to attend work due to depression effective from 7th June 2016. Three further certificates were received covering the period ending 4th July 2016. The complainant continued to be absent on sick leave up to 6th March 2017. Further DSP certificates continued to be submitted to the Council citing stress and stress related illnesses. Also, certificates were furnished from the complainant's doctor citing depression and depression (work related). On 19th August 2016, the complainant updated a request for a transfer. He was told that this request would be retained on file and considered when the next appointments at his grade were being made. The complainant attended the Council's independent medical referee on 24th August. The subsequent report from the medical referee stated that in his opinion the complainant was fit to resume work. The complainant stated to the medical referee that in consultation with his own GP he planned to return to work on 5th September 2016, this was included in the report. The complainant did not return to work on the 5th September and as a consequence he was invited to attend a meeting with the Senior Engineer in charge of the section together with a representative from the HR Department. He was also afforded the opportunity to be accompanied. The meeting took place on 26th September 2016. At the outset of the meeting it was outlined to the complainant that the purpose of the meeting was to facilitate his return to work as recommended in the report of the medical referee. During the course of the meeting the complainant raised a number of issues which had given rise to his absence. He was told these issues would be examined. The complainant stated that he was due to see his GP later in the week with a view to returning to work on 3rd October 2016.
The respondent submits that there is no further record of communication from the complainant following the meeting referred to above until a medical certificate was received on 3rd October 2016 continuing his absence until 30th November 2016. On 24th October 2016 SIPTU, on behalf of the complainant, sought a meeting with the respondent. A meeting of the parties took place on 2nd November. The respondent contends that there was no meaningful engagement at this meeting other than the union requesting mediation take place. The respondent did not accede to this request at the meeting but agreed that further consideration be given to it. On 11th November 2016, the respondent contacted the complainant's union representative and advised him that although the request for mediation had been considered the Council had concluded that the appointment of a mediator was not appropriate at that time as the employee had not yet utilised the agreed grievance procedures in force at that time. The complainant was advised that he should engage in the formal process of the grievance procedure by putting his case in in writing. The complainant's union representative emailed the Council on 14th November requesting that the decision in relation to mediation be reconsidered. The Council responded by email on 18th November again stating that the complainant should utilise the agreed Grievance Procedure. On 20th November 2016, the complainant contacted the Council by email making an application for Temporary Rehabilitation Pay (TRP). In the supporting documentation from his GP, a letter dated 10th November 2016, it stated that he was fit to return to work. A further email followed which stated that another medical certificate was to follow to cover his continuing absence until 9th December 2016. On 12th December 2016, the Council emailed the complainant advising him that TRP was not applicable in this instance as Council's Medical Referee and the complainant's own GP had certified him fit to work. The Council wrote to the complainant on 30th November informing him that his own GP had certified him fit to work and that the Council was not in a position to accept non-medical reasons for a continuation of his absence. He was requested to report to the Head of Section on 5th December 2016. The respondent contends that he had been certified medically fit to return to work by both his own GP and the Council's medical referee. The complainant was also advised that, "failure to do so may result in consideration being given to the termination of employment by reason of incapability". The complainant attended the Medical Referee on 23rd January. The subsequent report from the medical referee advised that the complainant was sufficiently well to engage and "sufficiently well to return to work if he chose to do so". Having considered the report the Council wrote to the complainant and requested that he report for duty on 6th March 2017.
The respondent submits that despite having requested the complainant to report for duty on three separate occasions and in the absence of any clear communications or engagement following these requests the Council was left with no alternative but to terminate his employment. By Executive Order, dated 7th March 2017, the complainant's employment was terminated. The Executive Order cited the following as the reasons for the termination: 1. "The Council endeavoured to engage with the claimant in relation to the alleged issues giving rise to his absenteeism." 2. "The claimant did not invoke the Council's established grievance procedure in relation to his allegations when advised and invited to do so." 3. "That both the Council's medical referee and the Claimant's GP declared him fit to work." 4. "On three separate occasions he was requested to report for duty all of which were ignored or not responded to." 5. "That the claimant has declined to engage with the Council either directly or through his trade union representative with regard to his grievance." 6. "That his employment be terminated on the basis that his actions have manifestly failed to demonstrate the capability and/or competence for the performance of work for which he was employed." 7. "That by his conduct he has breached the terms of his contract of employment." In concluding, the respondent submits that it afforded the complainant all reasonable opportunity to engage with his employer in relation to the alleged issues cited by him, that he failed to adequately engage with the Council and failed to deal with matters utilising agreed mechanisms in place, namely the grievance policy & procedure. In addition, the respondent puts forward that the complainant failed to report for duty having been certified fit to work by his own medical practitioner and the employer's independent medical referee. Finally, respondent's put forward that it acted as a reasonable employer in reaching the decision to dismiss. In response to questions put at the hearing the respondent stated that they had looked at a transfer for the complainant but there had been no opportunity to transfer him. When asked why the Council had not agreed to mediation the respondent stated that it was not allowed under the then grievance procedures and that there was nothing tangible from the complainant on what his issues were, he did not invoke the procedures. The respondent introduced a new grievance policy in 2016 which allows for mediation.
About not contacting the complainant's union before terminating his employment the respondent stated that they deal with the individual and that there was no union representative on record for the complainant and that they had only met with the union on one occasion regarding the complainant. When asked why there had been no appeal the respondent stated that there had been an oversight in internal communications. The respondent closed by stating that there are long established policies and procedures in place designed to cater for all employees. For the Grievance Policy to work an employee must outline what grievances they have and that it is impossible to deal with unfounded allegations. It was also pointed out that there is a duty of fairness to both parties regarding allegations being made under the Grievance Policy. The respondent also stated that the complainant always stated he would return to work but only medical certificates arrived. |
Summary of Complainant’s Case:
The complainant provided a detailed written submission. It is the complainant's belief that he was unfairly dismissed, in circumstances where he, on advice from his doctor, did not return to work due to an on-going issue, in relation to dignity at work and or bullying. By way of background the complainant submitted that he commenced employment with the respondent, in or around November 2005 and that he had always received satisfactory reviews in his PMDS (annual review) and that the quality of his work was never questioned. The complainant submits that in 2011 he began having an issue his immediate supervisor. The complainant felt isolated and undermined in his work, which caused him considerable frustration. Despite attempts to remedy the situation, he began to feel further isolated and further excluded. The situation continued for several years and there were a number of incidents which created stress for the complainant. In May 2016, the complainant believes that he was subjected to disciplinary action when he was removed from the flexi-time scheme. This situation caused much distress for the complainant and he attended his own GP. A meeting took place on 26th September between the complainant, the engineer in charge of his section and a member of the HR team. At this meeting the complainant raised the issues he was having with his line manager. The complainant continued to be unfit for work. Around mid-November another meeting took place between the respondent, the complainant, accompanied by his union representative. At this meeting the union representative suggested that either an informal process or mediation be utilised to help facilitate a return to work for the complainant. However, the respondent decided that as the complainant had not entered the formal grievance procedure, mediation was unsuitable. The union requested that they reconsider, however the respondent again denied the request.
The complainant's GP wrote to the respondent on 10th November 2016 outlining the background to the case and stating that the complainant was fit to return to work but his issues would need to be addressed. On 30th November 2016, the respondent wrote to the complainant informing him that as he had been deemed fit by his own GP and the medical referee, he should report to the head of the section on 5th December 2016 and that a failure to do so could result in the termination of his employment. The complainant submits that he responded through his GP by way of a letter dated 1st December 2016. In this letter the GP clarified the meaning of his previous letter and made it clear that if the matters raised by the complainant were dealt with then the complainant could go back to work, but until that time "the last thing [name] should do is go back to work." The complainant also attended the medical referee on 23rd January 2017 where he was deemed fit enough to engage with the respondent and return to work. The referee doctor also stated that the complainant was keen to return to work and that his medical advisor had advised that he should not return to work in the same working environment. The respondent wrote to the complainant on 27th February requiring him to attend work on 6th March 2017. On 7th March 2017, the respondent wrote to the complainant terminating his employment. SIPTU wrote to the respondent on 21st of March and again on 25th April 2017 requesting an appeal of the decision to terminate their member's employment, however, no reply was received. In conclusion, the complainant submits that the respondent's decision to dismiss him was unreasonable in light of the fact that the respondent was well aware of the medical opinion of the complainant's medical advisor, that they were aware that the complainant was suffering from anxiety and depression and that he was still attending counselling. The complainant is of the view that there were other courses of action available to the respondent before terminating his employment, that the complainant had requested an informal mechanism to resolve the issues at work and while this may have been outside the process, to consider mediation between the individuals involved. The complainant feels the respondent acted unreasonably when it did not contact his trade union prior to the dismissal. While acknowledging that it was not a legal necessity the complainant believes that in circumstances where the complainant was previously represented by the union, the respondent is a government body and has a long and successful relationship with the union. The complainant contends that while the decision to terminate the complainant's employment was based on the agreement of the complaint's GP and the medical referee that he was fit to return to work, there is no basis for such a contention as the GP's letter of 1st December 2016 was clear that if the issues were addressed he could return to work, but that the GP went on to say that as things had not changed "…the last thing [name] should do is go back to work."
Finally, the complainant submitted that this case is similar to McGrane v Mater Private Nursing Home [UD 1985/369]. In response to questions put to the complainant at the hearing the complainant stated that although no formal grievance had been raised it was not true to say that no grievances had been raised. The complainant also stated that it was unreasonable for the respondent to slavishly follow procedures instead of trying to help an employee even when told those procedures did not fit.
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Findings and Conclusions:
In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”. The Executive order dated 7th March 2017, gives seven reasons why the Council dismissed the complainant. To decide whether it was reasonable for the Council to dismiss the complainant I think it worthwhile to review each of those seven reasons. 1. "The Council endeavoured to engage with the claimant in relation to the alleged issues giving rise to his absenteeism." This is correct, but the engagement went no further than telling the complainant, on more than one occasions, that he must process a formal grievance before the Council could do anything to address his issues and concerns. 2. "The claimant did not invoke the Council's established grievance procedure in relation to his allegations when advised and invited to do so." Again, this is correct, but the complaint did endeavour to have the issues dealt with informally and he did suggest mediation as a means of addressing the issues. The Council chose not to attempt mediation as it was not part of the established grievance procedure. However, the established procedure does advocate an informal approach in the first instance, with the formal process kicking in only when the informal approach has been unsuccessful. The procedure may not mention mediation but it certainly does not exclude it as a method which could be utilised during the informal process. The non-utilisation of mediation by the Council, when requested by the complainant, indicates to me an unreasonable lack of flexibility. Ironically the Council introduced a new grievance procedure in 2016 which includes mediation as an option in the resolution of grievances. 3. "That both the Council's medical referee and the Claimant's GP declared him fit to work." This is incorrect. The complainant's GP had not declared him fit for work. What the GP wrote in his letter of 1st December 2016, in response to the Council, included the following (GP's own emphasis):
"my letter has been misinterpreted. I meant that if the problems that RAN HIM INTO NERVOUS A BREAKDOWN WERE DEALT WITH (his COMPLAINTS AGAINST HIS SUPERVISOR) that he could go back to work but since not an iota has changed and his supervisor did not turn up for the arranged meeting nothing has changed and the last thing NAME should do is go back to work." The above extract was sent by the complainant's GP to clarify a previous letter of his (10th November 2016) which contained the following, "he is fit for work. But has to quit job if this problem is not sorted", yet this was interpreted by the Council as the GP stating the complainant was fit to return to work. How the Council could extrapolate their meaning from these two GP letters is hard to fathom. 4."On three separate occasions he was requested to report for duty all of which were ignored or not responded to." This is partially correct. The complainant did not keep in contact with his employer as well as he should have. However, there was some was contact from the complainant with the Council either through his GP or his union official. Requests to return to duty were replied to with medical certificates explaining the reason for the absence. 5. "That the claimant has declined to engage with the Council either directly or through his trade union representative with regard to his grievance." This is not correct. The complainant did attempt to engage with the Council about his grievance but was met with a demand that he process a formal complaint or there was nothing that could be done. 6."That his employment be terminated on the basis that his actions have manifestly failed to demonstrate the capability and/or competence for the performance of work for which he was employed." This may be the Council's view but from the evidence adduced it would seem to me that the Council was more intent on finding reasons to terminate the complainant's employment than solving the issues which had caused his absence. 7."That by his conduct he has breached the terms of his contract of employment." I do not agree that the complainant breached the terms of his contract of employment. He was under instruction form his GP to remain out from work until the issues causing his illness were dealt with in some manner or means. That these issues needed to be dealt with was made clear to the Council. However, at no time did the Council attempt to address the issues causing his illness, rather a rigid adherence to, and in my view a flawed, interpretation of the established grievance procedures, meant that the issues giving cause to the illness (whether found or unfound) were not addressed in any meaningful way. Having considered the matter carefully I find that the respondent did not act reasonably in dismissing the complainant, nor do I find that there were substantial grounds justifying the dismissal.
Compounding the unfairness of the dismissal is the fact that the complaint was not granted an appeal hearing, despite his union contacting the Council twice looking for same. It is telling that the letter of dismissal, 7th March 2017, does not mention any right of appeal.
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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.
For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the complainant was unfairly dismissed by the respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including re-instatement, re-engagement and financial compensation which may be awarded. The complainant has sought reinstatement; however, the respondent prefers that compensation should be considered as the form of redress. Taking all the circumstances into consideration I have decided that the complaint be re-instated in his employment with the Council. |
Dated: 31st July 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Absence, grievance, mediation, re-instatement |