ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013246
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Operative | A Security Business |
Representatives | Ricky Burke, Mediation, Advocacy and Legal Services | Terence O Sullivan, Solicitor. |
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-00017382-001 | 11/02/2018 |
Date of Adjudication Hearing: 31/05/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
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.
Background:
This is a claim for constructive dismissal. The Complainant was represented by his Father, who also works as a legal advisor and the Respondent was represented by the Company Solicitor, Terence O Sullivan. Both parties presented oral and written submissions. The Respondent presented witnesses for the company. |
Summary of Complainant’s Case:
The Complainant worked as a Night Security operative from 27 February 2015 to 19 January 2018 when he resigned from his position and has claimed constructive dismissal. He worked a 40-hour week in return for €400 nett per week. He had been assigned to continuous nights from late 2015. He began to have trouble sleeping during the day and in May 2017 was diagnosed as suffering from depression and anxiety supported by medication. He paid for Counselling himself. The Complainants representative submitted that the nature and culture of the company did not lead to requests for change of work patterns to be entertained and pointed to non-adherence of recommendations under the Safety Health and Welfare Regulations (S.I No 299/2007) He was on sick leave from late April 2017. The Complainants representative outlined that the complainant was very vulnerable at work and unsupported .He had been refused a release from Night shift .He had made a complaint to the Regulatory Body concerning a person associated with the case .The Complainant was compelled to undertake two 16 hour night shifts without the benefit of a risk assessment .His work performance had been exemplary .The representative stated that the complainant was subsequently victimised and stressed and when the Medical Officer prevailed on him to complete drug tests, he tendered his resignation and was now working on the minimum wage. The Complainants Representative submitted that he had an unblemished record and was unfairly blocked from working days. EAP had not contacted him to explore the stress and anxiety which could be attributed to night work. He submitted that a request for completion of drug test was an invasion of privacy and in contravention of Art 8 of the European convention of Human Rights and not contained in any of the Respondent employment policies. He had not been intoxicated and the whole experience was intolerable for him and left him with no option but to resign for the sake of his mental and physical well being Complainants Evidence: The Complainant gave an outline of his growing sense of isolation on this his first time on Night shift. He was unable to secure a hot meal during his 12-hour shift. He lived on a Housing estate and the loud sound of lawnmowers affected a continuous sleep pattern. He contended that he had been pestered on rostering arrangements He confirmed that he was stressed and had been affected by the legacy of earlier personal influences. He commenced sick leave. After many months, he agreed to meet with the Respondent in September 2018 regarding a return to work. He had used a drug in the past and sought to return on day shift but was refused. He presented his own Doctors letters and he agreed to have a Drug Test with Dr C for the company within a three-week period. The Respondent had told him that his getting back to work was contingent on a negative Drug Test However, his stress levels became raised and he didn’t want to work the company any longer. During cross examination, the complainant confirmed that he had not actioned the grievance procedure, nor had he informed the Respondent that he wasn’t happy with developments. The Complainant confirmed that he was prepared to work when he showed up for work on October 4. He confirmed that he felt he had been ambushed by having his return refused. He denied that he had a new job lined up before he left. He commenced work on 29th January on a lesser salary. The Complainants representative confirmed that the Company were asked to resolve the complainant’s issues of seeking an alternative to night work. |
Summary of Respondent’s Case:
The Respondent runs a busy Security Company and confirmed that the complainant had been employed there from 27 February 2015 to 19 January 2018, when he resigned. The Respondent denied that the complainant had been constructively dismissed. The Company Solicitor outlined that the complainant had not activated the grievance procedure, nor had he been subject to a Disciplinary procedure. Copies of Company Hand book and a contract of employment were tendered in evidence. The Complainant had been on extended sick leave from in Mid-2017. On 19 September 2017, The Respondent Human Resource Officer wrote to the complainant acknowledging his extended period of sick leave and seeking to meet with him to explore the possibility of his return to work. The Respondent was intent on having him back to work. The Complainant presented at the workplace unannounced on October 4, He submitted a Medicate Certificate dated September1, 2017 which stated that the complainant “is fit only for day duties and should not be rostered for night duty “ When challenged on a question posed by the owner ,he confirmed that he had recently used a particular drug .The gap in time recorded on the medical certificate was brought to the complainants attention and the complainant confirmed that the author was not his own Doctor but another in the practice .The respondent decided to seek medical advice on the complainant . The Respondent then went on to arrange for four medical assessments involving the Company Doctor and the complainant, two of which were unattended by the Complainant. This culminated in an agreed plan with the Medical Officer and the complainant that he would be certified fit for work on completion of a negative drug test within a three-week window. The Respondent had not anticipated that the complainant would not cooperate with this plan and was disappointed. The Respondent had received a “fit for work certificate “for the complainant from his own GP dated 6 November ,2017 which prompted the Respondent to advise the complainant to go and see the Company Doctor on 14 November. He did not attend this appointment on that date or the resumed date of 12 December. Evidence of the Owner Mr A, the owner outlined that there were 1200 employees in the company and an Excellence through People (EAP) was in existence to support the workforce. On October 4th, 2017 the Complainant attended the workplace office following up on his wish to return to work. Mr A engaged with him and he admitted to smoking a drug over the past number of months. He told Mr A that he had been receiving Counselling for Depression which had stopped 4 weeks before. Mr A informed the complainant that he would need to be for work and that a cert to that effect would be required. He empathise with the complainant and gave him a week’s pay. In responding to the Complainants Representatives questions, he confirmed that EAP existed at the company and confirmed that he had advised the complainant to stay off drugs. Evidence of the Human Resource Director: Mr B, The Director of Human Resources outline that he had experience in Human Resources over a 17-year period. He recalled that Mr A had discussed the Complainants presentation on October 4 where he had” smelled drugs “from the complainant. The concern was around the complainant’s drug habit and a safe work place and the complainant was referred to the Company Doctor. On 21 November, he received a phone call from the Complainants Father and current Representative, he asked him to clarify his identity. On 23 November 2017, he was informed that the issue was going before the WRC. He described a meeting held with the complainant on 11 December 2017, which the complainant deemed “ a set up” and walked out .The company was at that stage seeking a Medical certificate from their Company Doctor to establish whether the complainant was fit or not .Mr B confirmed that he did not know that Night Shift was linked to Depression .He submitted that he couldn’t do a risk assessment on every location and was reassured that one employee had done night work since 1999.The Company had a lot of lone working practices . There was one Supervisor for 60/80 employees. Evidence of DR C. Dr C told the hearing that he was a Medical Practitioner with a long-term association with the company. He qualified his evidence by stating that he was only prepared to give evidence on his interaction on employment matters. He confirmed that he had received a referral for the company in October 2017 regarding getting an employee back to work. He was informed that the complainant experienced mental health issues and had presented with a “smell “of a drug at the workplace. He saw the complainant in a prolonged consultation and found him psychologically well with some Anxiety and Depression with infrequent use of drugs. While not specifically requested by the company to undertake a drug test. He asked the complainant to abstain from drugs for a few weeks and a Drug Test would follow in the form of an instant result 20 second test. Dr C declared the Complainant unfit for work on that occasion and when he next saw him in January 2018. The Complainant explained to him that he didn’t want to take the Drug Test as he didn’t want a record on his file. Dr C formed the view that the case was resolvable and planned to send him to an Occupational Health Physician and was in contemplation of the next step when he learned of the complainant’s resignation. During cross examination, Dr C confirmed that the complainant had refused to take the Drug test. In response to the complainant’s representative questions on how this impeded his return to work, Dr C explained that his duty of care transcended to the complainant at work and” he wasn’t certain he was safe” In response to the representative’s questions that “people with alcohol float around the workplace”, Dr C outlined the risks he identified at work as being alone on night work, uneven ground and a smell of a drug. He affirmed that he had not requested the complainant not to smoke. Dr C confirmed that he had rang the Company to trigger the Consultation with the Occupational Health Physician and had informed the complainant that he would move matters forward by going back to the company seeking another solution. In closing for the Respondent, the Company representative outlined that the complainant had taken drugs and the company had a clear concern. The Company was open to dealing with his issues had they been raised but the company genuinely believed that by referring the complainant to the Medical Officer they were helping him and asked the Adjudicator to address the case on the backdrop to the case being “fitness to resume work” The Company was prepared to go on and talk about day work but were still at the exploratory stage of whether the complainant was fit for work or not when he resigned on January 19, 2018.The issue was not assisted by the Complainants precipitous threatened referrals to the WRC. The Respondent submitted that the complainant had not satisfied either of the Contract or Reasonableness Tests necessary to satisfying a claim of constructive Dismissal Daniel O Gorman V Glen Tyre Company limited UD 2314/2010, Higgins and Donnelly Mirrors ltd UD 104/1979 refers They also pointed to the parameters of Section 13(1) Safety Health and Welfare at Work Act, 2005 on employee responsibilities in relation to intoxicants where an employee shall ensure that he Is not under the influence of intoxicants to the extent that he is such a state as to endanger his own safety health or welfare at work or that of any other person. The Respondent submitted that the complainant had agreed that he had used a drug in his discussions during two meetings with the company but denied it in the company of his representative on December 11. |
Findings and Conclusions:
I have considered the written and oral presentations put forward by the parties. I have also considered the evidence of the witnesses. I was assisted by the chronological arrangement of the case documentation and communication contained in the Respondent and Complainants booklets. In cases of alleged constructive dismissal, the complainant carries the burden of proof of involuntary termination of employment. Constructive Dismissal is defined in Section 1 of the 1977 Act as: The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in circumstances in which because of the conduct of the employer, the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer. The facts of this case come into sharp focus from 19 September 2017 to the date of termination of 19 January 2018, a four-month period. No issue was raised prior to or during the period of sick leave. I appreciate that the Complainants representative pointed to an oppressive culture at play in the workplace, but no evidence of this was adduced as a background statement. I must determine this as an assertion. I considered the complainants contract of employment signed in February 2015 and I found the paragraph on sickness absence to be instructive: “Whilst the company will be sympathetic if you are ill, you will appreciate that if you are persistently off work through ill health or long-term injury or capacity, this cannot continue indefinitely and your employment may be renewed or terminated. We reserve the right to ask you to submit to an independent medical examination, the cost of which will be borne by the company. As a result of this opinion, the company may terminate your employment if suitable work cannot be found for you. A refusal to be examined may lead to a Disciplinary action being taken including dismissal” I did not find details on just how a worker can access the EAP, however, I accept that it is on offer at the company. I understand it was one of the complainant’s anchor points that it wasn’t clear how to secure EAP service. I found that the complainant presented as a vulnerable figure in the case. I realise that there is no ethical rule which prohibits a Father representing his son in a workplace issue, however, given that the primary relationship is that of Father and secondary role as representative, I found that it resulted in some conflicts during the case. By this I mean that the complainant had clearly confirmed the proximity of his drug use at the October 4 “drop in “only for the Complainants representative to deny his drug usage during December 11 formal meeting. This led to a lingering confusion in the case. I note that the Respondent did not have a specific back to work Policy which may have guided the complainant and his representative on the steps to be followed in the case of a stalled return to work post illness. This would be best practice in a company of such magnitude as it sets out a road map to guide an employee and his line Manager. I am satisfied that the letter inviting the complainant to discuss his planned return to work was reasonable and grounded in good intentions. Given that the complainant had possession of a medical certificate outlining his need for access to a day roster as far back as September 1, 2017. I found it unusual that he kept such a helpful document to himself for a period of 5 weeks. This did not help his case as when he did present it in the “drop in “on October 4 he was overtaken by his undisputed admission of having used a drug. I was struck by the kindness shown towards him following that admission on that day and I found the plan to construct a return to work was worthy of good practice. However, it may have assisted the parties if the plan was formalised and set out in writing for the complainant simultaneously. I understand entirely that the complainant was down pay and he was keen to resume salary. However, I found that he did not share the Respondents concerns on the implications of drug use at work, albeit of a recreational back drop. I note that the Contract delineates “Do not report for duty under the influence of drugs “The Disciplinary procedures also outlines a reference to an intolerance for drugs at sections (c) and (d) of the policy and sets out the implications for digressions under Gross misconduct in this regard. I note that the company had not approached this case from any punitive perspective. I accept that the Complainant felt an isolation at work and his personal memories made him feel very lonely at work. It is regrettable that he didn’t seek help with this in real time or that a Supervisory structure did not illicit it. This is the kernel of the case. There are times in all workers lives where nights are just not a suitable shift and a Plan B should be capable of attainment in that instance, albeit for a short period. I appreciate that the complainant was met by a certain amount of disbelief when he asked for days and this unsettled him. I understand that the complainant sought to address it on his planned return to work in October but he was overtaken by the Respondent in the concern regarding his illness, deviation from the Counselling and drug taking. I note that the November 6 cert did not specify that day duty was obligatory. By then, the complainant was on the pathway to the company Doctor, whose evidence assisted me greatly. I am satisfied that Dr C envisaged a return to work for the complainant and had formulated a plan for him to present a clear drug test in a defined period. This proved impossible when the complainant refused to cooperate in January 2018. I accept that DR C had formulated Plan B and was intent on securing the services of an Occupational Health Physician to advise on the next step when he was overtaken by news of the complainant’s resignation. I was struck by the focus and compassion in Dr Cs evidence at the hearing. This brings me to the efforts made at resolving the impasse in the workplace. I heard from Mr B that he sought a validation on the identity of the Complainants chosen representative and once satisfied all parties convened at December 11 meeting. This was a dissatisfactory meeting from both party’s perspectives. For the complainant, it had followed an email dated November 25 where the complainant’s representative stated: I see no valid reason why X who reported for work more than 5 weeks ago has not been allocated work or has not been paid. He followed this by a stated intention to refer the case for constructive dismissal to the WRC. I accept that the Respondent sought to address this claim at the meeting on December 11 but without success and was followed by the nonattendance of the complainant at the medical review the next day. I note that the complainant received one week’s pay distributed by the owner on October 4. His return to work was predicated on a provision of a “fitness to resume certificate “. This was not obtained at the January medical review as the drug test was refused. The Complainant resigned shortly afterwards. The Complainants representative outlined that the Complainant was faced by an attempted breach of Article 8 of the European Convention for Human Rights. This refers to the right to respect for your private life, your family, your home and your correspondence. The complainant had authorised that the company could send him for an Independent Medical consultation in his contract of employment and I have not found that the company deviated from this agreement. I found that Dr. C presented very compelling evidence on his professional concerns about active drug taking vis a vis a safe workplace and I am satisfied that this was for most part in the Respondents mind up to the moment of receipt of termination. However, in examining the complainants behaviour, I was struck by the inconsistencies in his behaviour. The gap in time before the cert was furnished in the first instance followed by no mention of the need for day work on the follow up cert was not clarified at the hearing to my satisfaction. However, I have looked closely at the interface between the complainant and Dr C and initially a course of action was agreed to obtain a clear drug free sample to clear the way for a return to work. This was followed by a nonattendance and a change of mind on the complainant’s part. He would not agree to participate in the drug test and he did not want a record of his drug taking to be maintained. Dr C accepted this and have moved to plan b, that of a Consultation with Occupational Health. I have found that the complainant was understandably worried about money and returning to salary and he was confused that the November 6 cert was not currency for this. Given that the Respondent had expended a week’s salary to support the complainant in October, I find that the parties ought to have engaged in more constructive discussions of restoring some element of rehabilitative pay for the complainant. However, the complainant participated in a delay around getting back to work by his non-attendance at the medical reviews and blank refusal to undertake the agreed drug test. In a parallel claim for Unfair Dismissal in Reddin V Irish Aviataion Authority {2017}28 ELR 216, the Labour Court affirmed a fair dismissal and set out a comprehensive reasoning on the need for someone with drug/alcohol problems to seek professional treatment. Consideration should be given on the risk to safety and on any workplace policies on Intoxicants/ Drugs. They found that attending a workplace under the influence of an intoxicant / drug constituted an act of gross misconduct. The circumstances of October 4 happened outside working time and triggered a supportive framework by the respondent. I appreciate that the complainant was impatient and keen to get back to work and ultimately retreated from the medium agreed for his return, the drug test. In deciding a claim for Constructive Dismissal, I must consider both the behaviour of the Respondent and that of the complainant Berber V Dunnes Stores {2009] IESC 10. I must be satisfied that the complainant was faced with something so intolerable as to warrant that he resigns. In this case, the complainant was seeking a return from sick leave. The Respondent was concerned at both the delay in the medical certification, the disclosure of drug taking and the diminishing attendance at Counselling. They were also concerned that the cert was issued by a different Dr than normal and moved to rely on the input of the company Dr. This was working until the complainant withdrew from the agreed route to return to work and without proposing an alternative course of action he resigned. In considering that letter of resignation I must have regard that an open offer to meet issued from the company on receipt. This was not availed of. The Complainant mentioned that he had not been examined by DR C. and was without work or pay since November 6. While I understand that being without work or pay is a dreadful experience, I note that the complainant did not action the grievance procedure in pursuit of redress for either perceived wrong. He did not consult the Safety Representative or his Supervisor. In fact, I found that the precipitous mention of referral to the WRC prior to exhaustion of local procedures formed an impediment to reaching real progress locally and is regrettable. It is not lost on me that the Complainant and his representative remain angry at the Respondent. However, for my part, I found that the Respondent adopted the role of a responsible employer trying to match the safety needs of the business with the personal needs of the complainant. Perhaps more could have been done on explanation of a process undertaken or that the Occupational Health Physician may have something guidance in the case. However, I did not establish an oppressive environment, or the presence of a tipping point or last straw which forced the complainant to leave. The issue on pay was best addressed through procedures and if necessary to WRC. The Complainant did not submit a table of loss and Mitigation and I note he found new work albeit on much lower pay almost immediately . A return to work post illness is challenging for all parties. I found that the complainant was supported by the Respondent for the most part and that some of the delays in the process originated on his side. I had commented on the Respondents lack of a Back to Work Algorithm to maximise a mutual understanding of the process . However, I could not establish that the complainant satisfied the burden of proof necessary in the case to justify an involuntary termination of employment. There were further resolutions for him to explore at the time of his termination which I found to be precipitous. The Claim for Constructive Dismissal has not succeeded. |
Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide 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 claim for constructive dismissal has not succeeded.
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Dated: 7th November 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Constructive Dismissal |