ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007559
| Complainant | Respondent |
Anonymised Parties | A warehouse operative | A logistics company |
Representatives | Cathy McGrady BL | Conor O'Gorman, IBEC |
Complaint:
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-00010132-001 | 08/03/2017 |
Date of Adjudication Hearing: 06/12/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 8 of the Unfair Dismissals Act 1977, this complaint was assigned to me by the Director General. I conducted a hearing on December 6th 2017 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
The complainant was represented by Ms Cathy McGrady BL, instructed by Ms Claire Lambert of Hennessy and Perozzi Solicitors. The respondent was represented by Mr Conor O’Gorman from IBEC accompanied by Ms Amanda Sun. The complainant was the only witness for his case. For the respondent, the Warehouse Team Manager, the General Manager and a HR Generalist attended the hearing and gave evidence.
Background:
The respondent is a subsidiary of a company engaged in growing, purchasing and distributing fresh produce in Ireland and Europe. The complainant is a Lithuanian national and he commenced employment on May 11th 2010. He worked as a warehouse operative in a third-party distribution centre operated by the respondent on behalf of a major grocery retailer. Having gone out sick on May 15th 2016, over the next 11 weeks, the complainant submitted certs stating that he was suffering from a knee injury or a knee and shoulder injury, or in one case, just a shoulder injury. His absence coincided with him having to move out of his apartment in Santry so that it could be treated for pyrite. During the re-construction, he moved temporarily to live with his brother in Tallaght. The complainant returned to work on August 8th and an investigation commenced into his absence and his failure to comply with the company’s occupational health procedures. He was dismissed on September 9th 2016. |
Summary of Respondent’s Case:
Background to the Complainant’s Dismissal On May 15th 2016, the complainant went absent from work and did not notify his manager, as he was required to do in accordance with the company’s absence procedure. He submitted a certificate from his GP on May 23rd, and followed up with weekly certs until August 7th. In all, he sent in 11 medical certs and copies were presented in evidence at the hearing. On the certificates, the complainant’s doctor states that he is absent from work due to: “Left knee injury” – 2 certs, May 22nd and 29th “Left shoulder injury + knee” – 3 certs, June 5th, 12th and 19th “Left shoulder injury” – 1 cert, June 26th “Left knee & shoulder injury” – 3 certs, July 3rd, 17th and 24th “Left shoulder & knee injuries” – 2 certs, July 31st and August 7th On June 17th, the complainant failed to attend an appointment that had been arranged with the company doctor, despite a letter being sent to him and a phone message left to request him to attend. When he didn’t attend, his sick pay was suspended and he was requested to contact the HR Generalist. This HR Generalist gave evidence at the hearing. The complainant contacted her on June 29th and her e mail to the HR Manager records that the complainant phoned her and said that “there is no requirement for him to attend the company doctor as the issue is exactly the same as previously with his shoulder and knee and the doctor has all the detail on his file.” The complainant confirmed that he would attend the company doctor on July 5th, but again, did not attend. On this occasion, he said that he couldn’t afford to travel to the doctor on the Long Mile Road, as his sick pay had been suspended. A third appointment was arranged for July 20th, and having initially complained that he could not drive due to his sore knee, the complainant attended the company doctor this time. The doctor’s report notes that, at the consultation, the complainant informed him “his knee now feels better and he is looking to return to work.” He also told the doctor that he was absent only due to a pain in his knee and that his own doctor had made a mistake referring to his shoulder injury. He injured his shoulder in 2013 and had a fall in 2014, injuring his knee. Following one of these injuries, he was absent for three months, but this recent absence was only related to his knee. The company doctor recommended that the complainant could return to work for two weeks on a half-time basis, and after that, on full-time hours. He was expected back to work on July 25th, but he told the HR Generalist that he would be back on August 2nd. He returned on August 8th, explaining that his “plans changed.” Investigation into the Complainant’s Conduct during his Absence On his return to work, the complainant was requested to attend a meeting with the Warehouse Team Manager to investigate his conduct during his absence and his failure to comply with the company’s absence procedure. A meeting took place on August 15th. Although he was invited to bring a union representative or a colleague, the complainant attended unaccompanied. At the meeting, he claimed that he didn’t receive the pack of documents sent to him in preparation for the investigation, but, when he was challenged, he accepted that he had received the documents. During the meeting, the documentation was reviewed and the discrepancies related to the complainant’s absence were discussed with him. The complainant had also been refusing to sign briefing documents required for audit by the client company. When he was questioned about this, he said that he didn’t work for the client and should not have to sign their documents. He was asked by the Warehouse Team Manager if he had a problem with the company’s policies and procedures and he said that he was unaware of them, although he received a copy of the Employee Handbook when he joined in 2010. Also, the absence procedure and the occupational health procedure would have been familiar to the complainant as he had followed the steps in these procedures when he was out sick previously. When he was questioned about the inconsistencies on his medical certs, he said that the doctor had made a mistake, and that there was no problem with his shoulder. He said that he didn’t pay any attention to what his doctor wrote on the certs. The Warehouse Team Manager asked the complainant to explain why he did not attend the company doctor when he was requested on June 17th and July 5th. In respect of June 17th, he said that he didn’t get the phone call from the HR Generalist, but then changed his mind and said that he didn’t listen to the voice mail message left for him. He said that he didn’t recognise the phone number, so he didn’t listen to the message. He said that he didn’t get the letter from the HR Department notifying him of the doctor’s appointment, as he had temporarily moved out of his apartment. With regard to the July 5th appointment, around 11.45am, the complainant contacted his manager and informed him that he would not attend the appointment with the company doctor arranged for 3.00pm that day. A HR Generalist then phoned him to advise him to attend. A note of this phone conversation was included in the pack of documents prepared for the investigation meeting. The note records that the complainant said that he couldn’t afford to drive to the doctor’s clinic, as his sick pay was suspended. The doctor’s clinic is on the Long Mile Road, and the complainant was living in Tallaght. During this time, the complainant was allegedly travelling from Tallaght to Ballymun on a weekly basis to attend his GP. The complainant told the HR Generalist that he would not go to the company doctor and he instructed her not to invite him again. The HR Generalist said that he hung up after he made this statement. When he was challenged about this, he replied, “no comment.” On July 20th, the complainant contacted the HR Department to let them know he would not attend the appointment arranged for that day. He said that his knee was too sore to drive. In the end, he kept the appointment and told the doctor that his knee was better and that he was ready to return to work. As the company doctor found him fit to return to work, a member of the HR Department contacted the complainant on July 22nd and said that she expected him back to work the following week. He said he would come back to work on August 2nd. He was invited to attend a meeting with the HR Department to discuss the doctor’s report, but said he would not attend. At the investigation meeting, the Warehouse Team Manager told the complainant that he was obliged to attend occupational health meetings and meetings to discuss the outcome of the doctor’s report, and in response, he said that he would not attend these meetings. Following the investigation meeting, the Warehouse Team Manager reached the following conclusions: The reasons put forward by the complainant for not attending the company doctor were not accepted. The HR Department made every effort to contact him to inform him about the appointments and he was aware of the protocols from his previous absence, when he followed the procedures. The Warehouse Team Manager concluded that the complainant was trying to frustrate the process by presenting a variety of excuses for not complying. The investigating manager found that the complainant “blatantly disregarded communication from HR” and was “argumentative and dismissive.” He also found that he was dishonest in his dealings with the company, claiming that he had not received the pack of documents for the meeting on August 15th, and then changing his mind when challenged. He also claimed that he didn’t get a phone call about a doctor’s appointment on June 17th, and then changed his mind when reminded about it. The Warehouse Team Manager found that the references to knee and shoulder injuries on nine of the 11 medical certs was “very strange” in circumstances where the complainant said that there was nothing wrong with his shoulder. In his report, the Manager said; “I cannot understand how a reputable GP could examine a patient for a knee complaint and certify him for a shoulder complaint directly after the examination. It is my belief that it is more likely that (name of the complainant) was not being examined weekly as his certs suggest.” In conclusion, the Warehouse Team Manager found that the complainant was “…attempting to frustrate the occupational health process in order to manipulate a situation where he could prolong his absence. It should be noted that his alleged knee injury occurred at a time when his house needed to be re-fit. His requirement for an extended absence was not confirmed by his own GP (due to discrepancies on certs and questions as to if he was regularly reviewed) or by the company doctor who stated that in his opinion (the complainant) did not have an underlying knee problem of any significance.” Having reached this conclusion, the Warehouse Team Manager recommended that the matter be referred for a disciplinary meeting. Disciplinary Meeting A disciplinary meeting took place on September 6th, and again, the complainant attended without representation. The Shift Operations Manager ran the meeting, accompanied by a note-taker. The Operations Manager went through the Investigation Report that triggered the disciplinary intervention, which the complainant said he had not read in full. The outcome of the meeting is recorded in the letter of September 9th 2016, which confirmed the Operations Manger’s decision to dismiss the complainant for gross misconduct and dishonesty. The reasons for these findings can be summarised as follows: The complainant did not attend two appointments with the company’s occupational health consultant. He said that company doctor “was questionable” and that he “works for the company.” He claimed that he couldn’t afford to attend the second appointment on the Long Mile Road, as his sick pay had been suspended, but said he was attending his GP in Ballymun on a weekly basis. Ballymun is a considerable distance from Tallaght. The complainant was considered to be dishonest in his explanations about why he couldn’t attend the company doctor. On the third attempt by the HR Department to arrange an appointment, on July 20th, he said that he couldn’t drive as his knee was sore, but he then told the doctor that his knee was better – a fact with which the doctor agreed. He then went on to dispute the doctor’s finding, refused to attend a welfare meeting and failed to return to work for another 17 days (11 working days). When questioned about this he said he had “personal reasons” and that “plans changed.” He didn’t submit a medical cert for the week from July 31st until August 7th – the week he claimed that his plans changed. The cert is dated August 7th 2016, which fell on a Sunday. The Operations Manager concluded that the “certs are unreliable,” with eight of the 11 certs having conflicting reasons for the complainant’s absence, stating that he had a shoulder injury, which was not the case. The complainant was found to be un-cooperative in his engagements with the HR Department, refusing to answer calls, claiming that he didn’t receive a voicemail message and a letter and being rude and argumentative in his dealings with members of the HR team. Dismissal The dismissal letter sets out the conclusion of the Operations Manager at the end of the disciplinary meeting: “On balance of probability, I find that it is likely that your period of absence was not related to a significant knee complaint and it is more than coincidental that this period of absence coincided with your need to relocate from your normal place of residence in order for structural repairs to take place on it. “I find that you have been blatantly obstructive, uncooperative, evasive and dishonest in relation to your recent absence from work and the subsequent investigation and disciplinary. You have failed to follow reasonable requests made to you and have demonstrated disregard for Company Policy and Procedure as alleged. This constitutes Gross Misconduct.” Having been issued with the letter of dismissal on September 9th, the complainant appealed the decision and following a meeting with the General Manager on September 23rd, the dismissal was upheld. Appeal of the Decision to Dismiss The manager who conducted the appeal hearing gave evidence at the hearing. The complainant was accompanied at the meeting on September 23rd by a colleague and brought prepared notes. In his evidence, the General Manager said that, if he was asked a question that he wasn’t prepared for, the complainant became flustered and when he was pressed for answers, he became argumentative and aggressive. The General Manager said that the appeal was unusual, in that the complainant didn’t ask for his job back, or argue that the manager who dismissed him made the wrong decision. At the meeting, the General Manager said that he made the appeal difficult by his demeanour, and gave the impression he was going through a “tick-box exercise.” The Reason for the Dismissal It is the respondent’s position that the dismissal of the complainant in the circumstances which have been outlined was substantively and procedurally fair. He was dismissed because he did not co-operate with his employer’s sick pay policy by: 1. Not submitting valid medical certs; 2. Not attending appointments with the company doctor; 3. Not attending a welfare meeting when he was found to be ready to return to work; 4. Failing to return to work when he was found to be fit to do so; 5. Being obstructive, evasive and dismissive in his dealings with the company during his absence. |
Summary of Complainant’s Case:
Background to the Complainant’s Absence In his evidence, the complainant said that in 2013, he fell and injured his shoulder and knee and he was off work for two or three months. The written statement presented at the hearing has a slight variation on these events, where it is stated that in 2013, the complainant suffered a shoulder injury and in 2014, he fell and injured his knee. Regardless of these inconsistencies, the main point is that the complainant injured his knee and shoulder in 2013 and/or 2014 and he was out sick for about three months. In March 2016, he said that he received a letter from the building firm that constructed his apartment to let him know that he had to move out from April 1st until the end of June so that it could be repaired. The structure was found to be damaged with pyrite. He said he brought this letter to his manager and he told him he would be moving to Tallaght to live with his brother for the duration of the re-construction. He said that his manager asked him to write down his new address. He also asked for a change in his start and finish time and his manager agreed that he could work from 10.00am to 6.00pm for one month, to make the commute from Tallaght to Santry a bit easier. For about four weeks from the first week of April until the first week of May, he worked this roster. He said that he asked for the roster change to be extended, and it was extended for a short time. In cross examination by Mr O’Gorman for the respondent, the complainant was asked why he didn’t follow the normal process for informing the company that he had changed address. In response, he said that he wasn’t aware of the process. Mr O’Gorman produced a form completed by the complainant in 2012, which he filled in to notify the HR Department that he had moved house. When he was shown this form, he agreed that he was aware of the process to follow. Around the middle of May, the complainant said that his knee was sore and from May 22nd, he submitted certs on a weekly basis. When he was asked by his counsel about the cert dated Sunday, August 7th, he said that the doctor “certified me for 7th of August.” He returned to work on August 8th. He agreed with his counsel that, each time he got a cert, he was at the doctor’s. In response to questions from Mr O’Gorman about why he didn’t attend the meeting after the company doctor certified him as fit to work, the complainant said that “there was no reason to go to this meeting.” He said that “HR Managers are not capable or qualified.” He went on to say that “my understanding is that the company calls this meeting to ensure that you are in Ireland.” At the hearing, the complainant was asked why he didn’t bring a union representative or a colleague with him to the investigation meeting and the disciplinary meeting. He responded, “I just said, I don’t need one. SIPTU can’t talk for me, why would I bring someone?” A letter was submitted in evidence dated from the complainant’s GP. The letter was dated September 15th, one week after his return to work. The letter states: “Dear Sirs “This is to confirm that I certified (name of the complainant) as unfit for work from 15/5/16 until 8/8/16. He sustained left knee and left shoulder injuries in a fall in 2014. “His previous GP did an MRI on his left knee which showed a small tear in his medial meniscus and he was referred to the orthopaedic department in Beaumont Hospital. He remains on the waiting list for an appointment.” The complainant said that he brought this letter to the appeal meeting on September 23rd and showed it to the General Manager; however, the General Manager said in evidence that he saw the letter for the first time at the hearing of this complaint at the WRC. I accept the evidence of the manager and that of the HR Generalist, when they said that they never saw this document. This letter is the only one not included in the respondent’s papers and there is nothing to be gained by them leaving it out. The doctor states that the complainant “sustained left knee and left shoulder injuries in a fall in 2014.” This is inconsistent with the complainant’s evidence that he fell in 2013. For the respondent, Mr O’Gorman put it to the complainant that, by the time his doctor wrote this letter, he had attended two meetings with the company where he said that his doctor made a mistake referring to his knee and shoulder injuries, when he only had a problem with his knee. Investigation into the Complainant’s Conduct At the investigation meeting with the Warehouse Team Manager, the complainant agreed that he was provided with a pack of documents, but he said that he didn’t open the pack at the meeting. He said that he didn’t get a chance to question the people who wrote the e mails that were included in the pack (the two HR Generalists). In his evidence, he said that he would have required more than four days to read the documents. When he was challenged about this, he said that he didn’t ask for more time and he didn’t request the assistance of a translator. The disciplinary meeting was handled by the Shift Operations Manager and the complainant said that he explained to him why he couldn’t attend the appointments with the company doctor. At the appeal meeting, the General Manager asked the same questions that were asked at the disciplinary meeting. The complainant said that he wanted to use his notes to make a point, but that he was prevented from speaking from them. The Complainant’s Submission that his Dismissal is Unfair For the complainant, Ms McGrady submitted that his dismissal was procedurally and substantively unfair and disproportionate to the conduct it was intended to address. She argued that the outcome of the investigation was pre-judged, where the managers concluded that the complainant was lying about the reason for his absence. In their rejection of the medical certificates, Ms McGrady submitted that the respondent concluded that the complainant’s absence was unrelated to his knee complaint, a conclusion which she claimed they were not qualified to reach. She also argued that the company doctor had not found that the complainant was lying about his knee problem. If the company had concerns about what was written on the medical certs, Ms McGrady stated that they should have sought clarification from the GP before reaching any conclusion to the detriment of the complainant. n the course of the investigation into his conduct during his absence, the complainant was not given an opportunity to cross-examine employees who had made statements about him, nor was he advised of his right to legal representation. As a result, it is the complainant’s position is that he was denied the opportunity to challenge the documents relied upon by the respondent, which supported the decision which led to his dismissal. Ms McGrady said that the complainant accepts that he has good English, but as English is not his native language, he got flustered at the meetings with the company and found it difficult to find the right words to explain himself. She complained that he was not provided with a translator at the investigation and disciplinary meetings. As the company relied on the fact that the complainant failed to follow company procedures, it was unreasonable not to provide translated versions so that he could properly understand them. In response to a question from Mr O’Gorman for the respondent, the complainant said that he didn’t ask for the assistance of a translator and he didn’t look for more time to go through the pack of documents sent to him in preparation for the investigation meeting. The complainant’s position is that the conclusion reached by the company that his behaviour amounted to gross misconduct demonstrates that the outcome of the disciplinary process was pre-judged. Ms McGrady submitted that the fact that the company had a different opinion about his fitness to work was not his fault and does not amount to gross misconduct. She stated also that the failure of the complainant to attend two appointments with the company doctor does not amount to gross misconduct. Finally, she argued that the company should have dealt with their concerns through the disciplinary process without arriving at a dismissal. Case Law Submitting that the process that led to his dismissal was unfair, Ms McGrady referred to the Labour Court determination of Campbell Catering Limited and Aderonke Rasaq, EED 048. Ms Rasaq referred a complaint to the Labour Court under the Employment Equality Act 1998, following her dismissal for stealing bananas. Finally, the judgement of Mr Justice Eager in Lyons v Longford Westmeath Education and Training Board, [2017] IEHC 271, was referred to as a case in which Mr Lyons was not given the right to challenge and cross examine witnesses. In this case, the Eager J held that: “It is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence.” I will consider the relevance of this case law further on in next section. |
Findings and Conclusions:
Statutory Provisions Section 6(1) of the Unfair Dismissals Act 1977 provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The conduct which resulted in his dismissal is the respondent’s belief that in circumstances where the complainant’s absence coincided with the time that his apartment was being reconstructed, his problem with his knee may not have been the real reason for his absence. They reached this conclusion because the medical certs were inconsistent with just a knee injury and referred to knee and shoulder injuries and the complainant failed to attend for examination by the company doctor on two occasions. On the third occasion, he said he was better and the doctor signed him off as fit to return. Despite this clean bill of health, he did not return for a further two weeks. In his engagements with the HR Department, he was found to be obstructive, evasive and rude. During his absence, he refused to co-operate with the company’s absence procedures, although he had fully complied with the procedures when he was absent for three months previously. Was the Decision to Dismiss Reasonable and in Proportion to the Conduct? As has been established by the EAT in many instances, and specifically in the case of Looney & Co Limited V Looney [UD 843/1984], it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant was, as set out in the letter of dismissal, “blatantly obstructive, uncooperative, evasive and dishonest in relation to your recent absence from work and the subsequent investigation…” An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are as follows: 1. The complainant was absent from work from May 15th until August 8th 2016. In April, he had to move out of his apartment which was being re-constructed due to pyrite damage. He was facilitated with a change to his roster until early May. He said that he moved back in to his apartment in July. 2. During his absence, he submitted 11 medical certs in which his doctor said that he was out sick due to a combination of left knee and shoulder injuries. The complainant said that he hadn’t got a problem with his shoulder and that his doctor made a mistake on the certs. 3. At first, he refused to attend the company doctor and missed two appointments. When he attended the third appointment more than two months after he went absent, he told the doctor that his knee was better. 4. Although he was, by his own admission, and in the opinion of the company doctor, fit to return to work at that stage, he did not return for two more weeks. He said that his plans changed. 5. The complainant was obstructive in his dealings with the HR Department and did not follow reasonable instructions in relation to the absence procedure. 6. During the investigation into his conduct, he failed to help himself by bringing a colleague or a union representative and he was evasive and aggressive in his dealings with the investigating managers. From these facts, and from the evidence of both parties at the hearing, it is my view that it was reasonable for the respondent to find that the complainant was absent not entirely due to his knee problem. Having looked at the medical certs, it is my view that they contain no useful information and should be disregarded. The only valid medical opinion that could have been provided to the company was that of the occupational health consultant and the complainant refused to allow himself to be examined by this doctor at an early stage of his absence. This was not acceptable and this conduct was exacerbated further by his failure to return to work when he was found to be capable of doing so. Every contract of employment is based on an agreement with an employee that he or she will attend work and carry out certain duties in return for a payment in the form of wages. Layered on top of this basic contract are terms and conditions deriving from protective legislation, collective agreements, custom and practice and, in some workplaces, enhanced benefits. Barring absence due to illness, holidays or other agreed leave, an employer must be able to rely on an employee to attend for work. Certain well-used procedures are in place in most workplaces to govern the circumstances where an employee is sick and cannot come to work. These relate to notification of the reason for the absence, submission of medical certificates, attendance at the company doctor and meetings with the company to discuss the reason for the absence and any measures that the employer might be required to put in place to support the employee on his or her return to work. Having complied with these procedures when he was absent for three months in 2013, for his own reasons, the complainant decided to excuse himself from his obligation to follow the procedures on this occasion. No proper explanation was presented for him failing to do so and the Operations Manager’s belief that his absence was related to the re-fit carried out on his home, seems to me to be a reasonable conclusion. Apart from the conduct leading to the disciplinary investigation, from the evidence, it was apparent that during the investigation process, the complainant was obstructive and dismissive and did not engage in any serious way with the disciplinary process. The General Manager’s description of the complainant’s demeanour at the appeal as one where he appeared to regard it as a “tick-box” exercise was reflected in his demeanour at the hearing of this complaint. He adopted a “take it or leave it” tone in his answers, making no effort to try to convince me of the veracity of his case. It is my view that the decision to dismiss was reasonable and proportionate to the conduct of the complainant in this instance. Was the Process Fair? Contending that the process that led to his dismissal was unfair, the complainant’s counsel argued that: 1. The decision to dismiss him was pre-judged; the managers found that he lied about his absence and they were not qualified to make this finding; 2. The company doctor did not reach the conclusion that the complainant was lying about his knee injury; 3. The company should have sought clarification from the complainant’s GP with regard to the reason for his absence; 4. The complainant did not have the benefit of legal advice and was not given an opportunity to cross-examine the people who made statements about him that resulted in his dismissal. In this respect, Ms McGrady argued that a precedent has been established in the judgement of Mr Justice Eager in the Lyons v Longford Westmeath Education and Training Board. 5. He was not provided with the assistance of a translator at the investigation and disciplinary meetings and he was not given translated versions of the absence and disciplinary procedures. I will consider each of these arguments in turn: 1. In respect of the contention that the decision to dismiss was pre-judged, I can find no evidence that the managers decided to dismiss the complainant before giving him an opportunity to defend himself. His responses were considered and he was given the opportunity to argue against any potential sanction. I have read the almost-verbatim notes of the disciplinary meeting and the complainant was asked questions designed to give him a chance to explain his behaviour and to steer his employer away from the worst outcome of dismissal. The manager who heard his appeal said that he has presided over many appeals and normally, an employee in these circumstances argues strenuously not to lose their job. In the case of this employee however, he said that he “didn’t get a sense that he wanted to keep his job.” 2. I accept the complainant’s argument that managers are not qualified to reach a conclusion about the existence or extent of an employee’s illness. At no point during the disciplinary process, or during the hearing of this complaint, did the managers suggest that the complainant hadn’t got a sore knee. The company doctor noted his medical history from 2014 when he attended with “signs and symptoms that were consistent with mild chondromalacia patella.” On July 20th 2016, he said that in his opinion, “this man does not have an underlying knee problem of significance.” The conclusions reached by the respondent were supported by this medical opinion, and not the unqualified opinions of managers. 3. In some exceptional cases, it may be helpful for an employer or an occupational health consultant to contact an employee’s GP to seek clarification about medical certs. We must keep in mind however that the GP’s primary relationship is with the patient, and they have no obligation to the patient’s employer. In all, 11 medical certs were submitted. Eight of the certs stated that the complainant was absent because of a knee and shoulder injury, which the complainant said, was the doctor’s mistake. Having made a mistake on the third cert on June 5th, it was incumbent on the complainant to speak to the doctor and to put him right about the reason for his visit. Two of the certs are dated on Sundays, June 19th and August 7th. At the disciplinary meeting, the complainant said that again, this was the doctor’s mistake. At the hearing of this complaint, the complainant produced a letter dated September 15th, which he said he brought to the appeal meeting on September 23rd. The letter adds nothing to the complainant’s case, and is a further example of the inconsistency of the correspondence from the GP. On the basis of the certs and the letter of September 15th 2016, I do not believe that there would have been any useful outcome from the company contacting the complainant’s GP. 4. Finding that the employee at the centre of the Lyons case was deprived of fair procedures, Mr Justice Eager referred to the requirement for fair procedures to be adopted in the employer’s policies, whether on bullying or discipline. He concludes that fair procedures include the entitlement to challenge and cross-examine witnesses. While it resulted in dismissal, the Lyons case has its own distinguishing features, in that the investigation which resulted in a disciplinary hearing was carried out by an external consultant in accordance with the respondent’s Bullying Prevention Policy. This policy was not a legal procedure and did not afford Mr Lyons the protections set out in the respondent’s disciplinary procedures, under the heading of Circular 71/2014. In the case we are considering here, the process followed by the respondent was clearly established in the company’s disciplinary procedure, which reflects the legal protections of SI 146/2000. Having respect to the distinguishing features of the Lyons judgement, it is my view that SI 146/2000 establishes the standard of fair procedures which must be applied in this case. The complainant was informed of the allegations against him and invited to respond. He was advised to be represented, and while he declined at the investigation stage, he was advised again at the disciplinary stage. He brought a colleague to the appeal meeting. The facts were presented to him at these meetings and he was given an opportunity to respond. Referring to the Lyons case, Ms McGrady did not indicate who the complainant would have cross-examined, if he had been invited to do so. All of the facts were before the complainant at the meetings he attended. The only people he might have questioned were the HR Generalists, who noted their telephone communications with the complainant in five e mails on June 27th, June 29th, (two mails), July 5th and August 15th. Copies of the June and July e mails were included in the information pack given to the complainant in preparation for the investigation and disciplinary meetings. The subject of the August e mail is the information pack itself. The complainant did not dispute any aspect of the contents of this correspondence and ultimately, the interactions with these two members of the HR team had a negligible effect on the outcome of the disciplinary process. 5. The Operations Manager who conducted the disciplinary meeting described the complainant’s English as “good” and did not think he would need a translator. While an interpreter attended the hearing of this complaint, I do not recall that the complainant availed of her assistance to any extent, if at all. In the Labour Court determination of Campbell Catering Limited and Aderonke Rasaq, the Chairman found against the employer and stated: “In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in mounting a defence. In such cases, applying the same procedural standards to non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.” Ms Rasaq’s predicament does not compare with that of the complainant in this case. The complainant worked for the respondent from 2010 and for four years before that as an agency worker. He has therefore been in Ireland for at least 10 years. Ms Rasaq was a foreign national who arrived in Ireland for the first time in 1999. She was dismissed in 2002. It was submitted that she had a basic understanding of English and as she was not represented, she was at a serious disadvantage when it came to her ability to defend herself against her employer’s accusation of stealing. At the hearing of this complaint, Ms McGrady said that the complainant accepts that he has good English, but that, during the investigation and disciplinary meetings, “he found it difficult to find the right words.” When I asked him why he did not bring a union representative or a colleague with him to the meetings, he said, “SIPTU can’t talk for me. A representative can’t talk for me. Why would I bring someone?” Having read the meeting notes, it is evident that the complainant is a competent English speaker. It is my view that, at all times, he understood the seriousness of the allegations against him and he defended himself in a manner determined by him as appropriate. It is my view that the process followed by the company in these circumstances was a fair process. |
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.
I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed. |
Dated: 3rd May 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Dismissal, absence, disciplinary procedure |