ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005858
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 12/09/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 24 of the National Minimum Wage Act 2000 , and/or Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and /or Section 7 of the Terms of Employment (Information) Act , and/or 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).
Preliminary Matter of Jurisdiction CA 8110-001
As the claimant did not obtain a statement in accordance with Section 23 of her average hourly rate of pay in respect of the relevant pay reference period , I have no jurisdiction to investigate the complaint under the National Minimum Wages Act 2000.
Summary of Complainant’s Case:
The claimant was employed as a mushroom harvester by the respondent from the February 2015 to August 2016.It was submitted that the claimant’s contract of employment did not comply with employment law.It was asserted that the rates of pay were not detailed and referred the claimant to the employee handbook.It was submitted that the claimant had very little English and was not familiar with Irish employment law.
It was submitted that the claimant suffered a serious injury in May 2015 when she fell from a trolley while harvesting mushrooms.The claimant was asked to attend 6 absence review meetings between June and October 2015 and 2 Occupational Health Specialist assessments.It was submitted that both assessments deemed the claimant unfit to return to work.At this time, the claimant attended her GP and several physiotherapy sessions.The claimant was furnished with a further contract in September2015 containing detailed information on Health & Safety and setting out the employee’s responsibilities in this regard.In early Dec. 2015 , the respondent - having consulted the Occupational Health Specialist and the physiotherapist – decided that the claimant was fit to return to work on a phased basis .It was submitted that the claimant was put under severe pressure to return to work despite the opinion of her GP that she was unfit to do so.The claimant invoked the grievance procedure but her complaint was not upheld.The company doctor deemed the claimant fit to resume work on a phased basis – during the period Jan- May 2015 but the GP felt the claimant remained unfit to resume work. The claimant attended a further 3 absence review meetings between Dec. 2015 and May 2016.It was submitted that the respondent carried out an investigation into the claimant’s non return to work and found that her non retrun constituted gross misconduct .Her contract was terminated in August 2016 and her appeal against same was not upheld.
It was submitted that the claimant was precluded from bringing her own representative to the meetings – she was restricted to bringing a colleague or a union rep. The only translator allowed at the meetings was one chosen by the company – another employee who was not an official translator It was submitted that the claimant believed she was unfairly dismissed.
The claimant’s representative set out a detailed chronology of the events surrounding the claimant’s injury.It was determined following the claimant’s admission to hospital on the 16th.May 2015 that the claimant suffered soft tissue injuries to her spine and her right knee and compression fractures of T8 and T9 vertebral bodies.The claimant reported suffering from a lot of pain and stiffness.The claimant’s first absence review meeting took place on the 5th.June 2015 and it was submitted that the claimant did not trust the translator chosen by the respondent – she was not a qualified translator. The claimant’s representative set out an account of the ensuing exchanges betwee n the parties at the absence review meetings. At the second meeting the company undertook to pay the claimant the difference between her wages and her social welfare payments.The claimant visited the Occupational Health Specialist in August and October 2015.At the December 2015 absence review meeting , the respondent informed that claimant that they had consulted with the Occupational Health Specialist and the Physiotherapist and they were of the opinion the claimant was fit to resume work. The claimant was surprised and confused as they had indicated to the claimant that she was unfit to resume work. On the 2nd.December , the respondent wrote to the claimant outlining their plans for her phased return to work involving a number of hours cleaning duties initially and progressing to a combination of cleaning and harvesting duties. With the assistance of a friend the claimant wrote to the respondent on the 9th,December questioning why she was being put under so much pressure to return to work when her own medical professionals deemed her unfit to work. This was processed as a grievance by the respondent and a meeting was held on the 22nd,Dec. 2015.The claimant’s representation was restricted to a work colleague or trade union rep and it was submitted that “ this is not in line with current best practise or case law”.It was submitted that the claimant asked for an external person to represent her but it was refused .It was submitted that the claimant was never presented with the revised opinions of the Physiotherapist or Occupational Health Specialist. The claimant explained several times that she did not feel well enough to return to work. The grievance was not upheld and it was contended that the respondent continued to deny the claimant access to the revised opinion of the Occupational Health Specialist. An account was set out of the claimant’s dispute with the private physiotherapist who “ put her under psychological pressure and made her feel stupid”. A subsequent appeal hearing was scheduled for January 19th. 2016.The claimant was not allowed to bring a representative of choice. The claimant’s appeal was not upheld.
The claimant was referred to the company doctor on the 20th.Jan.2016- he concluded that the claimant was not fit to resume work as a mushroom harvester but could carry out light duties such as cleaning and washing on a reduced hours basis for the first 4 weeks and that he would review her if needed in 3 months time.The claimant’s representative summarised the ensuing exchanges between the claimant , her GP and the respondent involving letters and further absence review meetings.The claimant submitted a further certificate from her GP on the 16th.May 2016 deeming her unfit – valid to ay 30th.2016.The claimant advised the respondent that she still had back pain and high blood pressure.The claimant was referred again to the company doctor on the 18th.May 2016 – he deemed the claimant fit to return to work and according to the claimant’s representative expressed the opinion that the claimant was refusing to return to work owing to a potential loss of income – the claimant was highly offended by this opinion. A new investigation meeting was scheduled for the 25th.June 2016 – the claimant was unable to attend and a meeting was rescheduled for the 15th.July 2016 – the claimant indicated she would not attend as she was on a medical cert from her GP .The meeting proceeded without the claimant being present .On July 28h.2016 , the respondent wrote to the claimant to advise of their consideration of disciplinary action - a hearing was scheduled for 23rd.Sept. 2016.It was submitted that her choice of representation was again restricted. The claimant explained at the meeting that she was still unfit to resume work and this had been certified by her GP .The claimant was found guilty of gross misconduct and her employment was terminated. An appeal hearing was scheduled for the 23rd.Sept.2016 – notice of the meeting contained no reference to representation. The appeal was not upheld .It was submitted that the claimant was unfairly dismissed and “ she wants her complaints to be upheld and to receive some acknowledgement for the appalling way in which she has been treated by the respondent after suffering an injury in the workplace”.
In a follow up submission in response to the final submission from the respondent received on the …27th.Sept. 2018………… the claimant’s representative submitted as follows :
“ The claimant’s G.P., , and the Occupational Health Specialist, , both found the claimant unfit to work. The respondent then found a third, their own company doctor, to agree with the medical view that the claimant was fit to return to work on a phased basis, the same view that the manager that held the disciplinary meeting took from an early stage. The claimant was following her own doctor’s opinion and the respondent is changing the context in which facts in relation to this were presented.
There is clear bias on behalf of Mr. J and he was the last person to decide to terminate the claimant. The claimant looked to bring forward the disciplinary meeting as she was going abroad to get an MRI scan. Mr. J was in a rush to dismiss and never took this into consideration.
The case law is relevant, and as pointed out at the hearing there was extra responsibility on the respondent to ensure representation was provided. It is not relevant that because the decision was predetermined, or any representation would not change the outcome. If it was allowed, it could have had an effect on the decision. The respondent consistently misses points of relevance as it suits. Any proper representation, or any level of cross examination, would have quickly made it obvious the weakness of the case and alternatives open to the company in terms of options and if determined to take action against the claimant, though it is not clear why a company would want to do that. It is clear the language was an issue and the contention that the claimant would be short money was a very real concern and this stuck in the claimant’s head in relation to the phased return to work. There was confusion over this and the respondent, rather than assisting with ensuring clarity, took advantage of this and tried to make the claimant look unreasonable. This was like a discrimination. The company were also aware that the claimant was taking legal action. This seems to have coloured the thinking of the respondent. On its own this is prohibited. We have provided case law where the WRC can take a view of the full circumstances in reaching the decision.
We will not dwell on the facts made at the WRC. It is clearly not gross misconduct. The employer contributed to the confusion and clearly did not agree with two medical opinions and sought another and eventually got one to agree with the manager. Where there is different medical opinion the respondent could have got another, but it seems they had difficulty in getting one to say she might be fit for light duties. On the ground of proportionality alone this case is an unfair dismissal.
Even if Mr.J, who was continually persisting in having the claimant return to work, had not held the disciplinary meeting and all the bias he had was removed, the fact that the claimant not only did not have representation but also did not even understand what was going on, made the process unfair. In case there was any doubt that she understood the process at an early stage she appealed to the investigator to change his decision. Along with some one to interpret what was going on, representation and the lack thereof clearly assisted in the unfairness of the process and procedure.
This case in every aspect is unfair and straight forward in that regard. As far as we are concerned we dispute all the points that are made in the respondent’s additional submission and our view is that these were all addressed at the WRC hearing”.
The claimant gave direct evidence of her accident at work and her ensuing exchanges and meetings with the company about medical assistance and her return to work and the ensuing disciplinary process.She stated that she was not happy with the translator Ms.O and that the company would not allow her friend represent her at the disciplinary meetings. The claimant was adamant that she did her best to return to work but felt dizzy on her return and told her line manager that she was not fit to be back at work..She stated that while the company had agreed to provide transport to work – it took her 2.5 hours to walk to work.The claimant said her line manager was angry when she indicated she was not fit to be back at work- he told her go home and she organised neighbours to give her a lift. She complained about difficulties in understanding the medical advice she was receiving. She denied that she was not cooperating with the respondent in returning to work and explained that there had been misunderstandings in relation to some of the scheduled meetings which she had explained to the translator Ms.O.The claimant denied that she was offered representation at the disciplinary meetings.
Under cross examination the claimant referred to the meetings with her line manager and the disciplinary meetings.
It was put to her that her grievance against her line manager and her complaints about the private physiotherapist were triggered by the medical finding that she was fit to return to work.The claimant was unable to recall the detail of review meetings concerning her return to work.It was put to the claimant that no evidence had been presented to the appeal officer determining that the claimant was not fit to return to work.
The claimant set out details of Social Welfare Payments received since incurring her initial injury.
The claimant’s friend Ms.EK gave evidence of her efforts to support the claimant and of attending medical appointments with her.She asserted the claimant was stressed with the frequency of the review meetings.
Summary of Respondent’s Case:
The claimant commenced employment with the respondent on 23 February 2015
as a Mushroom Harvester. The claimant had an alleged accident at work on
Wednesday, 13 May 2015 where she fell on her side. The claimant continued to work that
day following the accident .She did not attend the Doctor as suggested by her Supervisors at the time as she did not think the injury was serious enough. The claimant attended the hospital on Saturday 16 May 2015,
The claimant was on sick leave from 13 May 2015 onwards. Her absence was stated to be sore back. The Company maintained regular contact with her, holding regular Absence Review Meetings aimed
at supporting her in a return to work (05 June 2Ot5, !2 June 2015, 15 July 2015, 18 August
2075,74 September 2015). The Company also provided with the claimant with9 private physiotherapyappointments in addition to the two that she received with the HSE. Over the course of thesemeetings, the claimant reported that she was continually improving and that she no longer was onfull time pain medication. The claimant attended Dr. O'F, an Occupational Health Doctor on 24August 2015. Dr. O'F confirmed that the claimant was not fit to return to her duties as a Mushroom Harvester .However, he confirmed that she could return to work on light duties and that the claimant 'would definitely gain confidence from getting back to work in some capacity as soon as possible'.
On 01 December 2015 Mr.J, Farm Manager held a routine Absence Review Meeting with the claimant to discuss Dr. O'F's report and outline a six week Return to Work schedule on light
duties. This schedule was confirmed to the claimant in a letter on 02 December 2015 with a
commencement date of the 10 December.
On the 10 December the claimant came to site however she refused to commence work. She
submitted a Grievance letter dated 09 December 2015, which alleged that her GP does not
recommend a return to work. The claimant also stated that she no longer wanted to attend the private physiotherapy and wished to return to the public physiotherapy. The claimant also suggested
that Dr. O F had said she was not fit to return to work. A Grievance meeting was held with the claimant on 22 December 2015 by Mr.J.O. B, Growing Technical Manager. He summarised the claimant’s letter in three main points that she confirmed were her three issues. These were that the claimant’s doctor .did not recommend a.return to work; that the claimant preferred to remain at the public physiotherapist and that she was unhappy that the private physiotherapist t terminated the sessions.
Mr. J.O.B found that both Dr. O'F and the Physiotherapist having carried out a full workplace assessment for the claimant and the analysis of her ability to carry out the work,
found that she was fit to return and would benefit from a return to work. He also found that public
physiotherapist would only provide one appointment every two weeks, where the private
physiotherapist would provide two in a week. Mr. J.O.B also found that the Company provided
the claimant with 11 private appointments, in excess of the 10 recommended by her GP at the time,
and would also be happy to provide her with more appointments if suggested by Occupational
The claimant remained absent during this time.
The claimant appealed the grievance outcome on 29 December 2015. Her appeal once again stated that Dr. O'F said she was unfit to work, but further alleged that the private physiotherapist was rude to her and that she was not provided with transport and translations at the appointments. The appeal was heard by Mr.CF, Regional Manager on 19 January 2016. Mr. F responded that
we would provide private physiotherapy with another physiotherapist decided by her and her
Doctor, that she would also be provided with a translator and transport to each appointment. Mr.CF also committed to providing the claimant with transport to and from work when she returned on the phased return.
The claimant attended an Occupational Health Doctor, Dr. B 19 January 2016. The Doctor
concluded that she was fit to return on light duties and returning to work would be a 'positive
experience' for her. The claimant did not return to work.
Mr.MJ wrote to the claimant on 25 February 2Ot6 in light of the occupational health report
and asked her to return to work on a phased return and on light duties. A copy of this letter was sent to the claimant’s GP, Dr. E. The site contacted the claimant to attend an Absence Review
Meeting on 01 March 2016 which the claimant declined to attend. The claimant attended a further Absence Review Meeting on the 11 March but refused to partake in the meeting.
At an Absence Review Meeting on 12 April 2016 the claimant confirmed that her Doctor had said it was up to her if she wanted to return to work. She claimed that she did not want to as she
would lose her social welfare payment. Mr. MJ told her the company would agree to guarantee at
least the same amount of pay as her social welfare on her phased return to work. The claimant
The claimant attended the Occupational Health Doctor, Dr. B on 27 April 2016. Dr. B
confirmed that the claimant was fit to return on light duties. He described the work schedule as
'very generous' and stated that 'a return to work would be very beneficial from a psychological point of view’. The claimant agreed to the return to work schedule, to commence on the 09 May. On the 09 May however the claimant did not attend work. Mr. MJ invited her to attend an Absence Review Meeting on 13 May 2016. At this meeting the claimant alleged that she did not agree to return to work on the 09 May and stated that she wished to talk to her GP about the return to work schedule. She stated that her GP had said it was up to her if she wanted to return. The claimant wrote to Mr. MJ on the 15 May 2016 stating that she felt was not fit to return to work.
The claimant attended the Occupational Health Doctor, Dr. B on 18 May 2016. Dr. B
expressed surprise to see the claimant again as he stated that 'after a lengthy assessment and
physical examination' at the previous consultation, he had found her fit to carry out light duties with a graduated return to work'. Dr. B reiterated the opinion that she was fit to return to work.
Absence Review meetings were scheduled for 31 May 2016 and 07 June 2015, which the claimant
did not attend.
An investigation meeting was scheduled for 17 June 2016 to discuss the claimants failure to return to work following the Occupational Health Doctor certifying her fit to do so. The claimant wrote to the respondent on 11 June to say that she would not attend the meeting on the 17 June 2015 due to health problems.
Mr. MJ wrote to the claimant stating that he believed that she was fit to attend the
meeting as she had attended Occupational Health appointments and absence review meetings and our Occupational Health Doctor had certified her fit to return to work. The investigation meeting was re-scheduled for 28 June 2016. The claimant called the company to say that again she would not attend the meeting. On 08 July 2015, the Company wrote to the claimant inviting her to attend a further re-scheduled investigation meeting. The letter stated that if she did not attend on this occasion then the meeting would be held in her absence. lt also afforded the claimant the opportunity to submit a written statement for consideration at the meeting. The claimant did not attend.
On 15 July 2015, Ms.KR, Harvesting Manager, conducted a thorough investigation on the
facts of the case. The investigation found that the claimant :
Had failed to attend two Absence Review Meetings on 31 May 2016 and 07 June 201G
Had previously attended all Absence Review Meetings but was currently not engaging with
Had failed to return to work following Doctor's reports from Dr, B (18 May ZOL6, 27
April 2016) stating that she was fit to return on a phased basis
Had previously agreed with Dr B to return to work on 09 May 2015 but did not attend
work as agreed
That her own GP had not disagreed with the return to work plan
As such Ms. KR recommended that the Company progress to the disciplinary procedure.
The claimant was invited to a disciplinary meeting on 05 September 2016 on the grounds of 'refusal
to come back to work following being declared fit to return to work by an independent medical
advisor". These allegations were deemed to be gross misconduct. The claimant wrote to the Company,on 05 August 2016 to request that the meeting be held earlier. She also stated that Dr.B's assessment was different from the opinions of other doctors who got to know her case
history such as Dr.E , Dr F, D.B and physical therapist from Physiotherapy Centre.
The disciplinary was rescheduled to 15 August as per the claimant’s request. The meeting was
chaired by Mr.M J, Farm Manager. A summary of the meeting is as follows:
The claimant confirmed that her own GP, Dr. E had stated that the decision to return to
work was her own
On 12 April 2016 the claimant stated that she had finished physiotherapy since 08 February
2015 and that she was on reduced pain medication
The Company had offered to pay for further private physiotherapy which she did
not avail of.
The claimant did not attend 2 absence review meetings .
Dr.B’s reports stated that the claimant was fit to return on light duties.
The claimant had not seen Dr.O F since the 28th.Oct. 2015
The company did not have any communication from Dr.B .The claimant stated that Dr.B is a private doctor in Castlebar.
It was documented that the claimant agreed at her meeting on the 27th.April 2016 that she would return to work on the 9th.May 2016 – however the claimant alleges that this was a misunderstanding.
On 23 August 2016 Mr. MJ wrote to the claimant to inform her of the outcome of the disciplinary
hearing. Mr. MJ found that the cliamant's employment should be terminated on the grounds of
gross misconduct for 'refusal to come back to work following being declared fit to return to work by
an lndependent Medical Advisor'. He advised her of her right of appeal.
On27 August 2015, the claimant appealed this decision on the following grounds:
o That she had an independent medical consultants opinion on the state of her health
o That the misunderstanding about the refusal to return to work on 18 May 2016 was due to
the professional translator, Mrs. D, informing her that she would not be allowed
to return to work
o That Dr. E suggested light sedentary work
o That Mr. MJ had promised the claimant transport to work and had then changed his mind
o That the Company offered the claimant private physiotherapy but that because of her lack
of English she could not find a private physiotherapist
The claimant was invited to an appeal hearing on 23 September 2015 chaired by Mr.JOB,
Growing Technical Manager. At this meeting the claimant provided two previously unseen medical
reports. These were discussed with Dr B who advised that his recommendations were
Mr. JOB found the following:
The claimant claimed that she had evidence from an independent medical consultant's
opinion about the state of her health - While she submitted two medical reports at the
appeal hearing, neither of these state that she was unfit to return to work. Dr. B, an
Occupational Health Consultant certified the claimant medically fit to return on a phased
basis on 20 January 20!6,27 April 2015 and 18 May 2015. On each occasion the claimant
refused to return. Dr. O'F who the claimant claimed, was very familiar with her case had
certified her fit to return on a phased return programme and has confirmed that this would
be very positive for her: however she did not return. The claimant confirmed that Dr. E
stated that she can come back to work if she so wishes.
The claimant claimed that at her previous meeting with Dr. B, the professional
translator, Mrs. D stated that she would not be allowed to return to work. Mrs.
D has confirmed that she did inform the claimant that Dr. had certified
her fit to return and this is consistent with Dr. B's subsequent report.
The claimant referred to Dr. B's reports stating that she can walk 1-2km distance per
day. Also the claimant claimed that it was stated it should be 'sedentary work'. There is no
reference to either the distance that the claimant was able to walk or to sedentary work in
any reports. The Company confirmed that they would transport the claimant to and from
work both in the notes of the cliamant’s 's grievance appeal meeting held on the 19 January
and subsequently in the grievance appeal outcome letter on 22 lanuary 2015. The claimant
stated that Mr.MJ subsequently rescinded the offer however there is no evidence to
support this and the claimant confirmed that this may have been a misunderstanding.
The claimant stated that due to her language barrier that she could not find a private
physiotherapist. The claimant did not inform us that she had any difficulty with sourcing
On the 27 September 2076 Mr. M.O.B. wrote to the claimant to inform her that he had decided to
uphold her dismissal. The claimant had exhausted the Company's appeals procedure.
The claimant was paid in accordance with the Registered Employment Agreement between
The respondent . and the Services, tndustrial, Professionaland Technical Unionas
of 27 February 2OL2, which is registered with the Labour Court. (REA)
This REA provides that Trainee Mushroom Harvesters are workers completing the 'Certificate in
Mushroom Harvesting'. This course is accredited by City & Guilds.
The minimum rate of pay for structured training is as follows:
Trainee Mushroom Harvester
0-3 months 80% Minimum Hourly Rate
4-6 months 90% Minimum Hourly Rate
Training is formal structured training as defined in accordance with Section 16 of the National
Minimum Wage Act. The claimant’s pay was in line with the above. While the claimant was not
entitled to receive Company sick pay, the Company did pay discretionary sick pay for seven weeks of
her absence. The claimant could have made any additional sick pay claim through Social Welfare.
The claimant submitted a personal injury claim arising from the work accident, which has been
resolved. As part of this claim, her loss of earnings for absence were
compensated in full.
It is submitted that:
The Company followed a fair process in dismissing the Complainant due to gross misconduct for
failure to return to work when an independent medical consultant had certified her fit to do so;
The Company took all reasonable steps to support the claimant in a return to work, and her failure
to engage with the Company was a fair reason justifying dismissal.
Further, the claimant's failure to return to work, when declared fit to do so, was a fair reason
justifying her dismissal.
The Company acted reasonably in dismissing the claimant in the circumstances.
The claimant has been remunerated as per her contract of employment and the Registered
Employment Agreement. No further monies are due to her from the Company. The Company has not breached the claimant's contract as alleged, or at all.
In a post hearing submission , the respondent submitted as follows
The Claimant has made three allegations against the Respondent namely:
1. She did not receive a statement in writing of her terms of employment;
2. She did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof; and
3. She was unfairly dismissed.
1. I did not receive a statement in writing of my terms of employment. I am seeking adjudication under Section 7 of the Terms of Employment (Information) Act 1994.
At the various hearings before the Workplace Relations Commission (WRC) the Respondent produced the Claimant’s contracts of employment dated 26 February 2015 (page 31) and dated 24 September 2015 (page 33).
These were provided to the Claimant, who confirmed in evidence that she had received both contracts and confirmed she had signed them. The Claimant did not call any contradictory evidence in relation to the production and her signature of the contracts or produce any evidence on their contents.
The contracts of employment provided by the Respondent to the Claimant comply with the requirements of the Terms of Employment (Information) Act 1994, particularly Section 3 of the said Act. The contract of the 26 February 2015 was provided to the Claimant a number of days after she commenced employment with the Respondent on the 23 February 2015.
The subsequent contract of the 24 September 2015 was provided when the Respondent reviewed and updated its contracts as a matter of course. The Respondent’s witnesses provided evidence to this effect.
As indicated above, it is contended that the contracts provided and accepted by the Claimant, comply with the Terms of Employment (Information) Act 1994 as they provide details of pay, the pay method, notice and, inter alia, the policies which apply to the Claimant’s employment with the Respondent.
Further, the contract of 24 September 2015 refers to the paying method/REA Agreement which formed part of that said contract and which comprised Appendix 1 of the contract.
The Respondent submits in the absence of any contrary evidence from the Claimant that it has complied with its statutory requirements under the said Act.
2. I did not receive my statutory minimum period of notice on the termination of my employment or payment in lieu thereof. I seek adjudication under Section 11 of the Minimum Notice and Terms of Employment Act 1973.
The contracts of employment of the 26 February 2015 and 24 September 2015 include specific provisions regarding the notice required to terminate the Claimant’s contract of employment. Both contracts also confirm that the Respondent reserves the right to summarily dismiss an employee in exceptional circumstances, without notice.
The contracts also referred to the Respondent’s Disciplinary Policy. The Respondent’s Disciplinary Policy was sent to the Claimant, in English and translated into Lithuanian, by letter of the 8 July 2016 (page 199) and again on the 28 July 2016 (page 215). The Disciplinary Policy again refers to the Respondent’s right to dismiss without notice. The Policy states that the Respondent will be entitled to dismiss without notice for gross misconduct, or some other fundamental breach of the Company Rules.
The Claimant confirmed that she received the said contracts and acknowledged receipt of the Respondent’s letters in July 2016 inviting her to a disciplinary hearing.
The Respondent’s letters of July 2016 advise the Claimant of the allegations of gross misconduct against her. Therefore, it is contended that if the allegations of gross misconduct are upheld, the Claimant is not entitled to receive notice, or pay in lieu, in accordance with the contract of employment, and the Respondent’s Disciplinary Policy.
As set out below, the Respondent contends that the allegations of gross misconduct against the Claimant have been proven and consequently, the Respondent is entitled to rely on the contractual provisions, and the contents of its Disciplinary Policy, to summarily dismiss the Claimant.
Section 8 of the Minimum Notice and Terms of Employment Act 1973 confirms that an employer has a statutory right to terminate a contract without notice “because of misconduct” by the other party.
The Respondent contends that in reliance on the statutory provision in Section 8 of the said Act and relying on the provisions of its contract with the Claimant, and the provisions of its Disciplinary Policy, the Claimant is not entitled to notice, or pay in lieu thereof, as the allegations of gross misconduct were proven against her.
3. I was unfairly dismissed. I was unfairly dismissed, with at least 12 months service, and require adjudication under Section 8 of the Unfair Dismissals Act 1977.
Section 5 (4) of the Unfair Dismissals Act 1977 sets out the grounds on which a dismissal could be considered fair. Section 5 (4) (b) indicates that the conduct of the employee is a fair reason for dismissal.
Further, Section 6 of the said Act indicates that the dismissal of an employee must be based on substantial grounds justifying the dismissal.
The Respondent contends that it relied on the conduct of the employee, amounting to gross misconduct, in dismissing the employee and that the Claimant’s conduct, and the circumstances surrounding her absence, fitness to work etc., were substantial grounds justifying that dismissal.
Following a work-related incident on 13 May 2015, the Claimant was absent from employment from 14 May 2015. Mr.J, Farm Manager, held a number of absence review meetings with the Claimant up to October 2015. During that time the Claimant had been sent for occupational health assessment, and the Respondent had paid for a number of private physiotherapy sessions for the Claimant. Whilst the Claimant’s GP, Dr E, certified the Claimant as remaining unfit to attend work, the Respondent’s Occupational Health physician Dr O’F, and physiotherapist Ms. W indicated around November 2015 that the Claimant was fit to return to work by way of a phased return.
The Respondent invited the Claimant to commence a phased return by letter of 2 December 2015. It was only after the Claimant was invited to return to work, that she issued a grievance against the Respondent on 9 December 2015.
The Respondent considered the Claimant’s grievance in accordance with its own policies and procedures arranging a grievance hearing on 22 December 2015 and subsequent grievance appeal on 19 January 2016, with the letter of outcome following the appeal hearing issued on 22 January 2016.
In the meantime, the Respondent had arranged for the Claimant to be re-assessed by their Occupational Health physician, now Dr. B. By report of 20 January 2016, Dr B had again indicated that the Claimant was fit to return to light duties. Consequently, Mr. J on behalf of the Respondent Company, wrote to the Claimant on 25 February 2016 inviting her to return to work. He also wrote to the Claimant’s GP, Dr E, setting out the proposed phased return and details of the proposed duties the Claimant would undertake. Dr E did not reply.
Following a number of review meetings cancelled by the Claimant, the Claimant was asked to attend Occupational Health assessment to assess her condition, as she maintained that she was unfit to return to light duties. By report of 27 April 2016 Dr. B confirmed that the Claimant was fit to return to restricted duties.
There followed correspondence and contact with the Claimant and the Respondent Company on 13 May up to and including 28 June 2016. The Claimant did not attend meetings to which she was invited and refused to engage with the Company.
At this stage, the Respondent had medical reports confirming that the Claimant was fit to return to phased duties. These duties had been offered to her. There were no contradictory medical reports from the Claimant to say she was unfit to return to work within the Respondent Company.
In view of the Claimant’s conduct, and the available medical evidence, the Respondent invited the Claimant to an investigation meeting on 15 July 2016. She was provided with full details of the proposed investigatory meeting, the allegations against her, and the possible outcome. It is contended that it was a reasonable course of action for the Respondent to consider disciplinary action and commence an investigation process at this stage.
The Claimant did not attend the investigation meeting on 15 July 2016 which was conducted by a Harvesting Manager, who had not been previously involved with the Claimant nor her absence review meetings. Considering the evidence available to the Respondent, the Harvesting Manager was of the opinion to proceed to disciplinary action.
It is contended that it was reasonable for the Respondent to conduct the investigation meeting and, considering its outcome, that it was reasonable in the particular circumstances to move to disciplinary action. It is contended that the Respondent carried out as much investigation as was reasonable and necessary in the circumstances of the Claimant’s conduct and medical evidence available.
By letter of 28 July 2016 the Claimant was invited to a disciplinary hearing. Full details of the allegations of gross misconduct against her were provided, together with Dr. B’s reports and a copy of the Respondent’s Disciplinary Policy. She was also advised of the consequences of the allegations of gross misconduct being upheld against her. The Respondent contends the Claimant was fully aware of the disciplinary process and procedure, it’s possible outcome up to and including dismissal. This letter of 28 July 2016, and subsequent letter of 12 August 2016 was sent to the Claimant in English and translated into Lithuanian. The correspondence also advised her of her rights to be accompanied at the disciplinary hearing by a colleague or Trade Union representative. The Respondent contends it took such steps as were reasonable to advise the Claimant of the disciplinary process.
The Respondent and Mr. J confirmed that the Claimant’s opportunity to be accompanied by a colleague or Trade Union representative, was in keeping with their normal procedure and the Claimant’s statutory rights. The disciplinary hearing was arranged for 15 August 2016 at which the Claimant confirmed that she was advised of her rights to be accompanied. She did not seek assistance from a colleague or Trade Union representative at that time nor request additional time to do so.
Present at the disciplinary hearing on 15 August 2016 was Ms.OS, an Office Administrator and worker used as a translator by the Respondent. The Claimant knew Ms. OS who had accompanied the Claimant to several previous physiotherapy sessions. At the WRC hearing the Respondent suggested, and the Claimant accepted, that the Claimant often telephoned her out of hours to discuss matters. At the disciplinary hearing, the Claimant made no complaints about the translator’s attendance. In addition, in the minutes of the disciplinary hearing (page 234) the Claimant signed to confirm that she was satisfied with the minutes of the meeting and their translation.
The Respondent complied with its own policy and legal requirements in relation to a companion for the Claimant at the disciplinary hearing. The Claimant did not, at the hearing, raise any complaint.
The notes of the disciplinary hearing confirm that Mr. J indicated to the Claimant that he would consider the allegations against her, and if proven, the appropriate sanction. This is documented in the notes of the meeting, concluding at page 234. The Respondent suggests the outcome of the disciplinary hearing was not predetermined and Mr. J’s decision was subsequently communicated to the Claimant in writing, by letter of 23 August 2016.
Mr. J had considered the evidence available to him. All of the medical evidence confirmed that the Claimant was fit to return to employment. The Claimant did not produce any written report to contradict such a medical opinion and indeed, by her own admission, confirmed that Dr E had said that it was up to her whether she wished to return to employment.
It is contended that it was reasonable for the Respondent to consider all the evidence available at that time and, on balance, Mr. J found that the allegations of gross misconduct against the Claimant were proven.
Considering the evidence and the attitude of the Claimant in refusing to go to work, Mr. J considered that a dismissal was a reasonable sanction in those circumstances. The Claimant had been allowed many opportunities since December 2015 to take advantage of a phased return to employment and had refused all such opportunities.
The Respondent contends that the Claimant’s conduct in failing to attend work is a fair reason for dismissal under the terms of the said Act, Section 5 (4) (b), and further that there were substantial grounds for that dismissal. It is further suggested that Mr. J genuinely believed the Claimant was guilty of the misconduct alleged against her and had reasonable grounds for this belief following the independent investigation meeting and medical evidence. It is suggested that dismissal was well within the band of reasonable responses and that the Respondent had followed a fair and reasonable investigation, disciplinary and dismissal process without procedural irregularity.
Following the Claimant’s letter of appeal of 27 August 2016, the Claimant was invited to attend an appeal hearing on 23 September 2016 with Mr J.O.B, who had not previously been involved in the investigation or disciplinary process. She was also again advised of her right to be accompanied at the appeal hearing by a colleague or trade union representative.
The appeal hearing took place on 23 September 2016 and the Claimant did not avail of her right to be accompanied by a colleague or trade union representative. Ms OS again attended as the translator. Mr O’B was accompanied by Mrs B (Nee McL) from Human Resources who took notes of the meeting. At the end of the appeal hearing the notes were translated for the Claimant who confirmed that they were an accurate record and she understood the contents of the appeal hearing.
During the appeal hearing, the Claimant produced an MRI report which had been prepared after the disciplinary hearing on 15 August 2016, and a report from Mr P.O.G. These reports had not been available to Mr Joyce at the time of that disciplinary hearing. The MRI report followed the Claimant’s attendance in Lithuania for an MRI scan and it was a report of that scan that the Claimant provided to Mr O’B. Mr O’B considered this report, and Mr O’Grady’s report (prepared in connection with the Claimant’s personal injury matter) together with the other medical evidence from Dr B. The reports discussed the Claimant’s condition and spine but did not say the Claimant was unfit to return to work. Both reports were shared with Dr B who confirmed to Mrs B they did not alter his opinion that the Claimant was fit to resume duties. The Claimant did not deduce any other evidence in support of her contention that she remained unfit. There was no written evidence supporting the Claimant’s refusal to return to work.
Therefore, considering all the evidence available to him and the Claimant’s conduct, Mr O’B dismissed her appeal. He wrote to her by letter of 27 September 2016 confirming the outcome of the appeal hearing. The letter was sent in English and translated into Lithuanian.
The Respondent contends that it followed a fair process in arranging an appeal hearing with a person not previously involved in the investigation or disciplinary procedures against the Claimant. She was again advised of her right to be accompanied at the appeal hearing and the Respondent had arranged for the translation of all supporting documents, and a translator was present at the appeal hearing itself. The Claimant did not ask to be accompanied by a TU representative or colleague or request legal representation at any time.
In the event it is found that there were procedural defects in the disciplinary process, which is denied, the Respondent contends that any such defects were remedied during the appeal process. The Claimant was offered the opportunity to adduce new evidence and that new evidence, by way of the MRI scan report and Mr O G’s report, was considered by Mr O’B before coming to his decision. She was provided with all supporting documents and told of her right to be accompanied. The Respondent contends that it complied with its own policy and procedures and carried out a fair and reasonable process in all the circumstances.
The Respondent contends it had a reasonable belief that the Claimant had committed the gross misconduct alleged against her. It conducted a reasonable investigation and acted reasonably in all the circumstances in treating the gross misconduct as a sufficient reason for dismissing the Claimant. It is denied that the Claimant was unfairly dismissed as alleged or at all.
The Respondent contends that it complied with the Code of Practice on Grievance and Disciplinary Procedures in dealing with the Claimant throughout the investigation disciplinary appeal processes and complied with the General Principles set out within the said Code.
Relevant Case Law
Noonan Services Group Ltd and Elvira Kravcova-UD/16/74
The decision of the Labour Court is noted. It is further noted however that the decision of the Court followed a hearing on 6 December 2016, with the Claimant herein being dismissed in August 2016, some four months before the Court’s hearing. Further, the Respondent contends that the facts of that case can be distinguished in that Noonan Services did not take steps to establish the extent of the Claimant’s ability to return to work, the tasks she could undertake and those she could not, or consult her own legal advisers. The Respondent contends that in the circumstances of the claimant, the Respondent sought advice from Dr F, Dr B and did write to the Claimant’s GP, Dr E, setting out the proposed phased return and the duties she might undertake. The Respondent contends that it had grounds for dismissing the Claimant due to gross misconduct in light of her refusal to return to employment on a phased basis.
The Respondent notes this decision of the Labour Court. It contends however that the circumstances of that case can be distinguished from the circumstances of the within Claimant. There, there was a clear conflict between the opinion of a company appointed doctor and the worker’s GP. In the cases of the claimant , there was no such conflict. The Respondent’s medical evidence confirmed the Claimant was fit to resume duties on a phased return basis: there was no written medical report from Dr E disagreeing with this. Indeed, the Claimant did not return to work and confirmed Dr E advised her it was a matter entirely for her whether she did so.
Lyons -v- Longford West Meath Education & Training Board Reference 2017 IEHC272
This Decision is noted but it is also noted that the judgement was issued on 5 May 2017, some 9 months after the Claimant was dismissed in August 2016. Further, this case and that of Burns and Hartigan below involved disciplinary offences where the sanction of dismissal could have been career ending for the employees involved. Messrs Burns and Hartigan were prison officers and Mr Lyons a teacher where a likely outcome of being dismissed was that they would be unable to continue a career in their chosen profession. In the circumstances of the within Claimant, a dismissal on the grounds of gross misconduct from Drimbawn Mushrooms would not have prevented the Claimant from securing alternative employment elsewhere or in a similar environment/agri-food sector.
In addition, this case considered bodies established by statutory authority under the Education Act 1988, as amended by Section 6 of the Education (Amendment) Act 2012 and the composition of appropriate investigation and disciplinary panels. The Respondent was not constrained by statutory requirements in the particular circumstances of the Claimant. The Respondent contends it is the exception rather than the rule for an employee to have legal representation during a disciplinary process.
Alan Burns and John Hartigan -v- Governor of Castlerea Prison 2009 20ELR109
As indicated above this case concerns two prison officers and the particular interpretation of a Disciplinary Code of Officers and the right to legal representation under the Prison (Disciplinary Code for Officers) Rules 1996. As alluded to above, this case considered the interpretation of a statutory instrument namely the 1996 Rules and is not similar to the disciplinary process and procedures which the Respondent followed, which did not have statutory effect. Further, as referred to above, the Applicants/Respondents/Employees were prison officers and the possible sanction of dismissal would have dire consequences for their chosen profession.
In the event that the Claimant is found to have been unfairly dismissed, the Claimant confirmed in her evidence that she was unfit to work after she was dismissed in August 2016. The Respondent contends therefore, that any award on a finding of unfair dismissal should not exceed 4 weeks’ pay, in accordance with the 1993 Act. At the time of her dismissal, the Claimant was paid €8.65 per hour for a 39-hour working week. The Respondent contends there are no circumstances which could lead to an increase of this 4 weeks’ pay limit.
If, which is denied, it is found the Claimant was not provided with contractual terms in accordance with the Terms of Employment (Information) Act 1994, in accordance with Section 7 thereof, any award is limited to 4 weeks’ pay.
If, which is denied, it is found the Claimant should have received notice, or pay in lieu of notice on the termination of her employment, the Respondent notes that the Claimant’s contractual notice, in accordance with the terms of her contract of employment, and statutory notice in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973, is one week.
Direct evidence was given on behalf of the respondent by Mr.J the Farm Manager.He chronicled his account of the exchanges and meetings with the claimant from the time of her fall to her ultimate dismissal.He confirmed that while the claimant did attend the meeting on the 11th.March 2016 , she refused to take part as she wanted a friend to represent her .He stated there are 53 SIPTU members on site and while she was entitled to bring a Shop Steward or a colleague , she wanted to bring a representative outside of those parameters , provided for in the disciplinary policy.He asserted that the matter of representation was for the claimant and submitted that the company at all times acted on the basis of legal advice.Mr.J stated that he had taken account of the medical reports and the undertakings from the claimant that she would return to work when considering her dismissal.He was challenged under cross examination as to whether the claimant , given her level of English , had the opportunity to ask questions and bring her own representation which it was argued was consistent with the finding in the case of Lyons V ETB.
Evidence was also given on behalf of Mr.J.O.B Technical Manager Manager.He gave evidence of hearing the claimant’s appeal against the dismissal and stated that he was influenced by the medical reports and Dr.B’s evidence which he said was consistent .He gave an account of his conduct of the appeal process and stated that he did consider alternatives to dismissal but was influenced by the claimant’s underlying lack of co-operation .He also took account of the claimant’s own medical reports which he contended did not state that the claimant was unfit to work.Under cross examination , the witness was asked why he did not seek an independent medical of the claimant and he responded that both the doctor and physiotherapist recommended that it would be good for the claimant to return to work. He stated that Dr. E had stated that it was up to the claimant to decide on her return to work. He was questioned as whether he considered it lack of interest that the claimant had organised her own MRI in Lithuania.He was challenged on not allowing the claimant to bring her own representation to the meetings and facilitate cross examination .
Mr.CF (Regional Manager)gave evidence for the respondent and recounted his involvement with the doctors , the physiotherapits and indicated that an alternative physio could be arranged for the claimant if she was unhappy.He gave evidence of his exchanges with the claimant about arrangements for transporting her to work.When questioned under cross examination about the company paying the claimant’s physio bills , he sated the company was trying to help the claimant.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7 of the Terms of Employment (Information)Act 1994requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented by the parties and noted in particular the copies of documentation furnished to the claimant on the 26.02.15 and the 4.11.15 – I am satisfied on basis of the evidence presented that the respondent has met their obligations in full with respect to compliance with Section 3 and accordingly I do not uphold this element of the complaint.
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 reviewed the evidence presented at the hearings and taken account of the voluminous submissions of the parties as well as the authorities relied upon .The claimant’s representative has consistently argued that the dismissal was unfair on the basis that the claimant was denied representation at the various hearings and have relied on IEHC 272 Lyons v Longford Westmeath Education and Training Board to support that contention. The company have presented documentary evidence of offering representation to the claimant and compliance with the terms of their collective agreement with SIPTU on representation by a colleague or a Shop Steward/Trade Union Officer.A number of waivers were signed by the claimant with respect to the matter of representation and no compelling evidence was advanced to support the claim by her representative that the company should digress from their collective agreement on representation. In regard I am taking account of the recent Court of Appeal finding on McKelvey v Iarnrod Eireann – where a collective agreement with respect to representation – similar to the respondent’s process - was challenged . It is clear from this decision that a disciplinary process is not rendered unfair by a refusal to allow an accused employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer. As a consequence , I do not accept that the denial of external representation was fatal to a fair dismissal.
I note that there were numerous misunderstandings by the claimant in relation to medical evidence and return to work arrangements – I don’t accept that sufficient cognisance of this was taken by the respondent and sufficient consideration was not given to the extent to which the claimant’s lack of fluency in English could disadvantage her in a formal disciplinary process. Additionally , I find that the respondent’s unwillingness to await the results of the Lithuanian MRI of Sept. 2016 and to proceed with the dismissal was unreasonable and accordingly , on these grounds I find the dismissal was procedurally unfair. No compelling evidence was advanced by the claimant’s representative to support his contention that the instant case had similarities to the EAT determination on Liz Allen V Independent Newspapers .In light of the claimant’s unavailability for work , I am restricted by the provisions of sub section (1) – [ c (i)]of Section 7 of the Act and require the respondent to pay the claimant 4 weeks’ remuneration.
Section 11 of the Minimum Notice and terms of Employment Act , 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
In light of my finding of unfair dismissal , I am upholding this complaint and require the respondent to pay the claimant one week’s notice.
Dated: 8th January 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea