ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014483
Parties:
| Complainant | Respondent |
Anonymised Parties | A Project Manager | A Pharmaceutical Manufacturing Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00018860-001 | 02/05/2018 |
Date of Adjudication Hearing: 28/01/2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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:
The Complainant commenced employment with the Respondent (a pharmaceutical company) on 10 November 1997, as a Laboratory Technician. The Complainant’s employment was terminated on 26 October 2017.
The Complainant submitted her claim for unfair dismissal under Section 8 of the Unfair Dismissal Act, 1977, to the Workplace Relations Commission on 2 May 2018. |
Summary of Complainant’s Case:
The Complainant provided details of her career with the Respondent and, in particular, in relation to a number of promotions and advancements she achieved over the period of time. The Complainant submitted that by the time her employment with the Respondent terminated in October 2017, she had achieved the role of Senior Projects Manager.
According to the Complainant’s submission, from the commencement of her employment up to 2014, she enjoyed a positive working relationship with her employer whereby she attained positive performance reviews and had no work-related issues. The Complainant submitted that, in April 2014, the Respondent company underwent a restructure which saw her reporting to a new Unit Lead ( Mr A) .
The Complainant submitted that Mr A raised numerous issues with her, many of which she claims were untrue. According to the Complainant’s evidence, as these issues could not be effectively resolved she raised an official grievance against Mr A, in August 2015. The Complainant further submitted that, as these issues were never completely resolved, she went on certified sick leave in November 2015, suffering from occupational related stress as a result of the ongoing conflict with Mr A.
The Complainant also stated that, for the first time in 19 years, she did not achieve the “meet expectations” standard in her annual performance review. However, the Complainant stated that she refused to sign this performance review and filed a complaint with HR. In further submission, the Complainant stated that while HR did not follow up on this complaint, Mr A was moved to a different department in February 2016, at which point in time she returned to work, reporting to a new Unit Lead (Mr B).
According to the Complainant’s submission, within weeks of returning to work, she was given a written warning (the first in her career) for breaching the critical safety rule, for which she alleges she had not received any training due to her absence on sick leave. The Complainant submitted that this warning was to be removed from her file after six months.
The Complainant submitted that in, March 2016, she was appointed to a new position against her wishes. According to the Complainant’s evidence, she signed a contract for 12 months in relation to this new role, in which she was continuing to report to Mr B. The Complainant further submitted that, when she took up this new project management role, in May 2016, she was relocated to a different office, which required her sharing with one other person. The Complainant stated that all her performance reviews throughout 2016 exceeded expectation.
According to the Complainant’s evidence, in October 2016, she visited her GP due to experiencing months of issues with excessive sweating. The Complainant stated that she complained about the office, on numerous occasions to Mr B, which she alleged made her feel excessively warm and gave rise to excessive sweating and lots of headaches. The Complainant further submitted that at the end of 2017, she moved to an adjacent office which had a lower temperature and a window that could be opened.
The Complainant stated that, on 9 March 2017, sick leave, associated with anxiety, commenced. According to the Complainant, she was unable to leave her house due to overwhelming feelings of fear and anxiety on 14 March 2017. The Complainant further stated that this was the first time this happened and she requested counselling through the Respondents Employee Assist Programme (EAP).
The Complainant submitted that, on 20 March 2017, she received a text from her then acting manager (Mr C) advising her that, in order to facilitate a new director, she was being moved back to her previous office. According to the Complainant’s evidence, she immediately responded to Mr C stating that she could not work in that office environment and requested a move to an open plan office sharing with more than one person. The Complainant further submitted that, later that day she experienced her first panic attack.
According to the Complainant submission, she had a telephone conversation with Mr C , on 28 March 2017 during which they discussed a move to an open plan office and she fully disclosed her anxiety illness to him. The Complainant stated that the Respondent was fully aware of the history with depression for the previous 15 years. The Complainant further submitted that, on 30 March 2017, she was informed by Mr C, that a desk in the front offices was being considered for her. The Complainant stated that she agreed to this move as a suitable location to help reduce her anxiety. According to the Complainant’s submission, she started an eight week, online, CBT programme, as she was still awaiting the counselling sessions through the Respondent’s EAP.
The Complainant stated that she called her line manager Mr B on 27 April 2017 to advise him that she was planning to return to work the following week and to clarify if her desk had been relocated to the front offices. The Complainant submitted that, during this conversation, Mr B stated that as work was not the cause of anxiety there was no reason to move her to a different desk. The Complainant also alleges that Mr B made a number of belittling comments during this conversation.
According to the Complainant’s submission, she attended an appointment with the Company Doctor (Dr D) on 28 April 2017. That while she did not receive a copy of this report, the details and results, were discussed by phone with HR. she felt ready to return to work, as she was of the understanding that a request to be located to a different desk was being accommodated. However, the Complainant stated that during subsequent telephone conversations with Mr B and the HR Associate Director (Ms E), she was informed that this was not the case. According to the Complainant’s submission, she contacted Dr D after experiencing a panic attack and he sent an email in this regard to HR. In addition, the Complainant submitted that her GP sent a report to HR on 3 May 2017. The Complainant also submitted that she commenced counselling sessions with the Respondent EAP on 8 May 2017.
The Complainant further submitted that, during a meeting with Ms E, on the same day (8 May 2017), she discussed her illness, the impact it was having on her health and the reason why she had requested to be relocated to an open plan office near the toilet. According to the Complainant’s evidence, being close to a toilet meant that she could have a private space to get breathing under control, splash water on her hands and face, be close in the event of sudden diarrhoea or if she got upset. According to the Complainant, Ms E stated that she did not believe the Complainant was fit to return to work and should not have been signed back to work by Dr D.
According to the Complainant’s submission, she received a letter, on 31 May 2017, from Ms E, which officially declined her request for reasonable accommodation based on Ms E’s own assessment of the office. The Complainant further submitted that during a conversation, on 19 June 2017, with her line manager Mr B, he was unaware that a request for an office change had been turned down as no discussion in this regard are taken place with him. In addition, the Complainant submitted that a counsellor sent a letter to Ms E, on 23 June 2017, explaining the difficulties the Complainant had working in confined spaces.
The Complainant stated that she attended a second medical assessment with the Company Doctor, Dr D on 28 June 2017. The Complainant further stated that she received a letter from Ms E, on 11 July 2017 stating that Dr D had deemed her fit to resume normal duties and found that, as she did not have a permanent disability and that no medical issue had been established, occupational health no longer had a role in this matter. In addition, the Complainant submitted that Dr D had also reported that a move to another office would not prevent any further episodes of absence, nor would it resolve long-term mental health issues. The Complainant submitted that as a result of the medical report, she was requested to return to work on 17 August 2017.
According to the Complainant’s submission, the stated return to work date of 17 August 2017 turned out to be a typographical error, as she subsequently received a letter from Ms E on 20 July 2017 querying why she (the Complainant) had not attended work on 17 July 2017, as requested in the previous correspondence. According to the Complainant’s evidence, as a result of a telephone conversation and further correspondence with Ms E, a new returned to work date of 24 July 2017 was set. The evidence shows that when the Complainant did not return to work as requested on 24 July 2017, she received a further letter from Ms E, which set a new return to work date of 14 August 2017.
The Complainant submitted that, as she had not returned to work on 14 August 2017, she received a further letter from Ms E requesting that she attend an investigation meeting on 23 August 2017. According to the evidence, the Complainant met with Ms E and the Human Resources Director (Mr F) who was also operating as Acting Business Unit Lead at that time. According to the Complainant submission, Ms E stated that she would not facilitate the change of office to see if it would help the Complainant. The evidence also suggests that Mr F indicated that he would contact Dr G to get clarification on his medical report and would contact the Complainant by 25 August 2017. The Complainant stated that, having received no reply from Mr F by 4 September 2017, she emailed him requesting an update of the situation and indicated that the manner in which the entire issue was being dealt with was causing her significant stress, had increased her anxiety and was hampering her efforts at recovery. On receipt of a number of emails from Mr F, on 13 September 2017, the Complainant submitted that she informed him that the continuous emails and pressure to return to work, while being certified by her GP as unfit to work, was intimidating and worsening her condition.
According to the Complainant’s submission, she received a letter from Miss E on 25 September 2017, requesting her to attend a disciplinary meeting for alleged gross insubordination and for proffering sick certs which were blatantly false. According to the Complainant’s submission, throughout the entire period of sick leave (from 9 March to 6 October 2017) she had provided genuine sick certs from her GP and had not refused to work. She further submitted in evidence that she had been declared unfit to work by her GP, who was treating a very debilitating illness seriously and that she (the Complainant), was following all her GP’s advice and recommendations in this regard.
The Complainant stated that, on 26 September 2017, she requested that the disciplinary meeting be postponed as she was awaiting a psychiatric assessment. However, this request was denied. However, the Complainant submitted that the meeting was postponed to 5 October 2017 in order to allow a work colleague to be available to accompany her. The Complainant provided detail in relation to the contribution/submission she made at the disciplinary hearing which took place on 5 October 2017. She stated that the meeting was attended by Ms E and Mr F, with the Occupational Health Nurse acting in the role of note taker. The Complainant also submitted that despite a request that they would wait for a report from a psychiatrist, to which she had been referred, she received a letter, on 1 November 2017 , which had been dated 26 October at 2017, stating that employment was being terminated on the grounds of gross insubordination.
According to the Complainant’s evidence, she appealed the decision and also challenged the fact that the appeal would be conducted by Mr F. The Complainant further stated that she received a letter on 15 November 2017 stating that the appeal would take place on 21 November 2017 and would be conducted by an independent investigator. The Complainant further stated that son 12 January 2018, she received a letter from Mr F stating that the Independent Investigator had found the investigation process to be fair and that appropriate consideration had been given for a review by third party. However, the Investigator had found that the Respondent had not given appropriate consideration to the reasonable accommodation matter. The Complainant submitted that despite this, Mr F advised that he was upholding the company’s original decision to dismiss her. According to the Complainant’s evidence, she received the P 45 and a copy of the appeal hearing report at the end of January 2018.
In conclusion, The Complainant submitted that she believed the entire process was unfair and policies were not followed. She further submitted that the process was not transparent with critical documentation such as meeting minutes not being provided to her until after her employment was terminated. The Complainant submitted that her pay ceased in July 2017 and she was left with no income until the end of January 2018. She stated that the procedure from investigation to dismissal took five months . In addition she said that she had no references from her entire working career. |
Summary of Respondent’s Case:
Introduction: In the submission, the Respondent confirmed that the Complainant was dismissed from their employment. However, the Respondent contends that the Complainant’s contract that this was done on legitimate grounds and following procedure which allowed the Complainant due process.
Before proceeding to respond to the Complainant’s substantive case, the Respondent raised a Preliminary Issue.
Preliminary Issue: The Respondent stated that Section 8 (2) of the Unfair Dismissal Act, 1977, described at the time for bringing a claim under the legislation is six months, beginning on the date of the relevant dismissal. The Respondent pointed to the date of dismissal, which is confirmed on the Complainant’s own claim form, to be 26 October 2017. The Respondent submitted that as the Complainant’s complaint form was received by the WRC on 2 May 2018, her case is, therefore, statute barred for the purposes of the 1977 Act.
The Respondent’s response to the substantive claim: The following submissions were made on behalf of the Respondent in response to the elements of the Complainant’s substantive claim:
a) Request for change of office – Reasonable Accommodation Claim It was submitted on behalf of the Respondent that when the Complainant went on sick leave, on 9 March 2017, for reasons unconnected with her employment, she had been continually working in the office, which are the subject matter of her complaint, for upwards of 12 months, without any apparent or official demur.
The Respondent stated that, while their investigations have failed to establish the facts of the situation, it appears that the Complainant spent a couple of days/weeks working from a different (somewhat more highly specified) office, just prior to going on sick leave. However, the Respondent submitted that it was at a loss to understand how or in what circumstances the Complainant came to believe that this was her office, when, in fact, this was an apparently unsanctioned.
The Respondent submitted that the Complainant, who had lodged no official or ongoing complaint or grievance regarding her office, approached her temporary Business Unit Lead, Mr C in respect of a possible change of office, just before going on sick leave. It was submitted on behalf of the Respondent that the Complainant claimed that she needed the move on “mental health grounds”. However, the Respondent stated that while Mr C indicated to the Complainant that he would look into the matter, he had no role in terms of assigning/re-assigning office space. Consequently, the Respondent submitted that it is at a loss to understand how or why the Complainant came to understand that such a move would be sanctioned.
According to the Respondent’s submission, the Complainant became very entrenched in her stance that she would not return to work, if she was not assigned an alternative office. The Respondent further submitted that, in fact, this refusal is the genesis of the Complainant’s dismissal. The Respondent further submits that, whilst it is perhaps understandable that the Complainant’s preference was to secure (what she perceived to be) a more comfortable/prestigious office, the office allocated to her is itself very substantial, roomy, well-appointed and highly specified. According to the Respondent’s submission, the Complainant’s office, which she was assigned to share with one female colleague, comprises at least 30 square meters.
The Respondent further submitted that the office is an internal office and, as such, does not have an external window. However it is contended that this is in common with a majority of the offices/work areas within the Respondent’s plant. It was further contended that the office in question benefits from similar ventilation to other offices/work areas within the plant, is modern and comfortably fitted out. It is further submitted that the office is located less than a minute away (in walking terms) from the nearest toilet. The Respondent provided photographic evidence in support of their contention in relation to the Complainant’s office.
The Respondent submitted that the Complainant was due to return to work on 2 May 2017 (having been certified as fit to do so), but she refused outright to return, in a telephone discussion with Ms E from the HR team and her line manager, Mr B. According to the Respondent’s submission, the Complainant specifically stated “I’m not going back to work if I’m going back to that office”. In addition, the Respondent contends that the Complainant accused the personnel of being unsympathetic to her mental health issues.
According to the Respondent’s submission, the Complainant was subsequently submitted a request for “reasonable accommodation”, pursuant to the Respondent’s job accommodation policy and specifically, to facilitate a change in office. The Respondent stated that this request was made verbally in late April 2017 and was formally invoked by email dated 16 May 2017. The Respondent submitted that in making this request, the Complainant specifically requested relocation to a shared area in the Finance Department. According to the Respondent’s evidence, the Finance Department is a sector entirely unrelated to the Complainant’s area of business.
With regard to the Complainant’s cited medical grounds as anxiety, the Respondent accepted that this had been confirmed in the report from the Company Doctor, (Dr D) on 28 April 2017. The Respondent made specific reference and submission to a number of statements, made by the Complainant in her email of 16 May 2017, in support of her case, as follows:
· “I felt a desk in a more open space would help to facilitate my return to work and reduce my anxiety”
and
· “I felt that the quality of the air and high temperature and constant use of air conditioning to make the temperature of the office bearable had led to a deterioration in my health….”
The Respondent also referred to the Complainant’s comment in the said email that she “had yet to determine the cause of [her] anxiety” and where she referenced a number of other factors that she believed may have caused or contributed to her anxiety.
With regard to the Company Doctor’s Medical report, dated 28 April 2017, the Respondent, in their submission drew attention to the following points:
· The Complainant has been absent due to “gastroenteritis and mental health issues”. · The Doctor documented the Complainant stated belief that her office “is too small and does not have a quality air supply” as the reason she wished to be relocated. · The Doctor also noted that the Complainant “feels uncomfortable with only one other occupant” in her shared office. · He also noted that the Complainant would “like to move to an alternative office”. · The Doctor recommended that the Complainant discuss issues in relation to the office with management.
In addition to the above points, the Respondent submitted that, critically, the Doctor considered the Complainant was “fit to return to her normal duties”. In addition, the Respondent submitted that the Doctor did not offer any medical basis or support for the Complainant’s requested change of office.
The Respondent further submitted that there was significant engagement with the Complainant and the company doctor concerning the request for reasonable accommodation. It was stated that there had been several internal meetings involving HR and Occupational Health and line management concerning the issue. According to the Respondent, their Job Accommodation Policy effectively mirrors the requirements laid out in the Employment Equality act with respect to “reasonable accommodation”. According to the Respondent’s admission, they wrote to the Complainant on 17 May 2017 confirming that they would carry out an investigation to identify if accommodation was required, pursuant to the policy.
According to the Respondent, the Complainant supplied a report, dated 3 May 2017, from her own GP, who it was pointed out, worked in the same medical practice as the Respondent’s Company Doctor. With regard to this report, the Respondent noted that the GP states that “there was no specific trigger” for the onset of the Complainant’s anxiety but it was “complicated by the occurrence of panic attacks. The first of these were triggered when she was working out in the gym”. The Respondent also noted that the GPs report indicated that the Complainant had informed her that her employer was being supportive in this regard.
According to the Respondent’s submission, the GP’s report did not link the Complainant illness to her office environment. It further pointed out that the GP confirmed that the Complainant’s periodic flareups of anxiety and low mood generally occur without any specific trigger and therefore the condition is “organic rather than reactive”. In addition, the Respondent pointed out that the GPs report indicated that the Complainant had expressed her disappointment at the fact that she had been asked to return to work and that she was expected to return to work at her existing office.
The Respondent submitted that, notwithstanding the fact that the Complainant had been on certified sick leave since 9 March 2017, the first occasion on which she discussed her inability to return to the office environment with a GP was, some two months later, on 2 May 2017.
The Respondent further pointed out that the GP documented various observations and feelings expressed by the Complainant, as to why her current office was less suited to her needs. The Respondent stated that these included the fact that it is “small”, the fact that she felt she would be “less visible” in an open plan office and because she believed the ventilation in existing office had contributed to various viralillnesses.
Finally, in relation to the GPs report, the Respondent noted the Doctors reference to the Complainant’s upset at the apparently abrupt nature of what she understood to be the withdrawal of a previous proposal that she might be relocated. In particular, the Respondent referenced the Doctor’s statement that the Complainant “couldn’t say now if actually having a change in office would make things any better in terms of anxiety, given how the situation had been managed.”
The Respondent submitted that Ms E reviewed the Complainant’s application in accordance with its policy and ultimately concluded that the available medical evidence did not establish any link between the onset, continuation or exacerbation of the Complainant’s pre-existing depression/anxiety and her office environment. It was submitted that, relying on the Complainant’s own doctors views, the Respondent had no medical support for any link between the Complainant’s illness and her office environment.
In addition, at the oral hearing, the Respondent also submitted that the Company Doctor and the in-house Environmental Health Department had both been invited to review the office in question and found no issues with it.
According to the Respondent’s submission, the concept of reasonable accommodation is found in the Employment Equality Acts and has been incorporated into the Respondent’s own policy. This submitted that the key item is that it is only to be involved/relied upon where the employee “requires an accommodation in order to perform the essential functions of[] his/her job”. The Respondent contends that, ultimately, reasonable accommodation requires that there be a medically verified link between the employee’s capacity to work and the accommodation sought.
In this regard, the Respondent contended that it had not been established that the Complainant required the accommodation requested (i.e. relocation) in order to perform the essential functions of her job. The Respondent further stated that, as it has a significant business to run, it could not allow the integrity of bona fide policies, required for valid reasons in appropriate circumstances, to be mis-used. The Respondent submitted that, in essence, it viewed this as a form of industrial relations agitation and was concerned that the Complainant was improperly using (or abusing) the company’s sick pay scheme and Job Accommodation Policy, in order to secure a more comfortable office setting.
Consequently, it was submitted that the Respondent notified the Complainant on 31 May that, for the reasons set out therein, the Complainant’s request for job accommodation had been declined. In this regard, the Respondent submitted that it acted in good faith in applying its policy appropriately.
b) Subsequent Events The Respondent submitted that having declined the request for reasonable accommodation, there was extensive further interaction with the Complainant in order to secure her return to work, on the basis that she had been certified as fit to return to work from 2 May 2017. According to the Respondent’s admission, the Complainant became more entrenched and focused on the office location issue. It was contended that the Complainant refused to meet with HR to discuss a return to work on a number of occasions, on the basis that nothing had changed.
In support of their submission in this regard, the Respondent made significant reference to a further report from the Company Doctor, dated 3 July 2017. The Respondent referenced, inter alia, the following extracts from the said report, as follows:
· The Complainant is “fit and ready to return to work once this office issue is resolved.”
· … “She would return to the current desk/office if [ the Respondent] and I [the Company Doctor] would sign a form saying we would be responsible for any harm that came to her including physical harm as a result”.
The Respondent submitted that the Doctor went on to outline various reasons why the Complainant was again insisting on the office change, as a precondition to return to work and they included the following as part of their submission:
· Heating/ventilation – she claimed that the office had become overheated one day, requiring her to leave; · Lighting – her previous office had better lighting; · Distance to toilet facilities – which she described as excessive; · Contact with users – in summary, she didn’t want to be alone with one other person in the office (with whom she may not want to converse).
The Respondent further submitted that the Doctor was requested to advise as to whether acceding to the Complainant’s request would prevent further episodes of absence. In the evidence, the Respondent stated that the Doctor replied as follows: “it would not do so, for the following reasons- [ The Complainant] has a history of depression for many years. She is very proactive with her condition and has managed is very well to date but does get exacerbations intermittently. The current dispute with her employer is relatively recent and its resolution will not resolve her long-term mental health issues and likely future requirements for sick leave.”
The Respondent submitted that the Doctor felt that the unpleasantness of the dispute over the office had become “medicalised” and he concluded that he “cannot establish a medical issue in this case and as such this dispute must be solved as the HR/IR issue that it is.” Based on this, the Respondent submitted that, essentially, the medical opinion suggested that the Complainant’s issues were of an industrial relations, rather than a medical, nature. The Respondent also submitted that the doctor, in a further clarification by email of 5 July 2017, confirmed that from a medical point the Complainant was, in his opinion, “fit for her normal duties”.
The Respondent submitted that they wrote again to the Complainant on 10 July 2017, noting that she had been deemed fit to resume normal duties and that she was expected to return to work on 17 July 2017, having previously been requested to return on several occasions. According to the Respondent’s evidence, further letters issued on 18 and 20 July 2017 which resulted in the deadline for return to work being extended to 24 July 2017. The Respondent further submitted that, ultimately, a telephone conversation took place between Ms E and the Complainant on 27 July 2017, in which Ms E explained that in circumstances where she had been deemed fit to return to work by the Company Doctor, the submission of a sick certificate would not override same and she was expected to return to work on 14 August 2017.
According to the Respondent’s evidence, the Complainant went on to claim that her problem was “situational” rather than “medical”, but it was reiterated that a reasonable accommodation request had been declined and she would be expected to return to her regular office. It was further submitted that the Complainant then confirmed that she would return to work, but only to her “old job” - being that of a Production Manager - which she had last undertaken over a year previously. The Respondent submitted that it was explained to the Complainant that there was a permanent headcount allocated to perform a role and such a request could not be facilitated.
The Respondent finally submitted in this regard that a conversation ensued between Ms E and the Complainant about the rationale behind submitting a certificate alleging unfitness for work, whilst at the same time confirming her capacity to return, if her demands were acceded to.
c) Investigation/Disciplinary procedure
The Respondent submitted that, ultimately, when the Complainant failed to present for work on 14 August 2017, she was invited to an investigatory meeting on 23 August 2017. It was further submitted that, at this meeting, it was put to the Complainant that she had failed to present for work, despite being passed fit to do so. It was submitted that the Complainant claimed she was refusing to return on her GPs advice. It was further submitted that the Complainant reference the fact that she was willing to return to her old job. It is submitted in evidence by the Respondent that in the course of this meeting, the Complainant definitely stated that she “was not coming back” despite being certified as fit by the Company Doctor.
According to the Respondent’s submission, at the meeting of 23 August 2017 to resolve the issue in dispute, the Complainant was invited to a disciplinary meeting on 28 September 2017. The Respondent submitted that this was done by way of a letter of invitation dated 21 September 2017 which set out the allegations against the Complainant, which largely focused on the fact that she was refusing a direction to return to work, unless a request to be assigned to a different office was granted. The Respondent submitted that this letter accused the Complainant of gross insubordination, on the basis that she was refusing to carry out a legitimate instruction.
The Respondent submitted that the disciplinary meeting eventually took place on 5 October 2017 and, arising from this meeting, the Complainant was advised, by letter dated 26 October 2017, of her dismissal, on the grounds of “gross insubordination and/or continuing refusal to carry out legitimate instructions”. The Respondent submitted that the charge represented gross misconduct.
According to the Respondent’s submission, the Complainant appealed her dismissal on three grounds, as follows:
1. That the investigation process was unfair. 2. That appropriate consideration was not given to her request for a further review by a third party. 3. That appropriate consideration was not given to a reasonable accommodation for her situation.
The Respondent submitted that an external investigator was appointed to assist with the hearing of the appeal. It was further submitted that the external investigator reported back to the Director of Human Resources, (Mr F), advising that grounds 1 and 2 of the Complainant’s appeal were not upheld.
According to the Respondent, the external investigator upheld the third ground, that appropriate consideration was not given to a reasonable accommodation of the Complainant’s situation. However, the Respondent further submitted that the external investigator noted there was no medical support for the requested accommodation and she did not suggest that there was any error in the application of the reasonable accommodation requirements to the Complainant’s request. However, the external investigator said that there had been “some misdirection on various perceptions of relevant legal provisions”.
The Respondent submitted that, ultimately, in interpreting the external investigators findings, Mr F noted that the primary finding at first instance, namely that the Complainant had persistently refused to return to work and proffered sick certificates, whilst indicating that she would return to work without hesitation on relocation to her office, was not directly addressed. In addition the Respondent submitted that the external investigator did not make a recommendation as to what steps were to be taken in light of her findings.
Consequently, the Respondent submitted that, in circumstances where the appeal was substantially rejected and the partly successful component appeared to centre on an apparently invalid application of the requirement of Section 16 of the Equality act, 1998 (suggesting that accommodation might arise in the absence of medical evidence to support its necessity), Mr F upheld the original decision to dismiss.
In concluding commentary on this aspect of the claim, the Respondent submitted that it was the Complainant’s intransigence and unreasonableness in refusing to accept that she could not secure the preferred office on medical grounds, that give rise to her dismissal. It was further submitted that, despite being facilitated with the huge level of engagement from the Respondent and, notwithstanding the medical evidence running contrary to the whole basis of the claim, the Complainant never relented in her demands, even when matters were escalated to investigatory and disciplinary meetings.
It was submitted on behalf of the Respondent that it was open to the Complainant at any time in the process to signal that she would accept the Respondent’s legitimate instructions. It was further submitted that, notwithstanding the Complainant’s claim that she was certified unfit to work, that argument is unsustainable, in circumstances where she herself confirmed (notwithstanding the certification), that she would return to work if a request was facilitated.
It was submitted by the Respondent that it was not possible to just simply accede to the Complainant’s request in order to ensure her return to end the stand-off. According to the Respondent is obliged to uphold the integrity of the job accommodation policy and sick certification system, which costs the Respondent millions of euros annually. It was further submitted that it cannot allow employees to exploit the system, in an effort to agitate for (what they perceived) to be improved terms/conditions.
The Respondent further submitted that it has well-established industrial relations channels and a collective agreement with the recognised trade union. In addition it was submitted that it has a grievance procedure which might more appropriately have been accessed by the Complainant, if she felt she had a legitimate reason to seek an office change. However in this regard the Respondent acknowledged that had the Complainant chosen the Grievance Procedure it would ultimately have resulted in the same outcome.
In conclusion, the Respondent submitted that, in the present case, it afforded the Complainant every opportunity to accept that she was not going to secure a change in office on medical grounds and only escalated matters having extended repeated warnings to the Complainant about returning to work.
d) Legal Argument
It was submitted on behalf of the Respondent, that it has long been established that an employee may be disciplined or dismissed for refusing to comply with the reasonable and lawful order from his/her employer. In support of this view, the Respondent quoted the following case law:
· Brewster v Burke & the Minister of Labour [ 1985] 4 JISLL98, where the High Court pointed out that - “it has now been part of law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.” · An Employer v An Employee (ADJ 1385/2016) where the Adjudication Officer ultimately found that summary dismissal was justified, in a case where an employee refused to follow instructions from his employer. · HSE Dublin N/E v Annamay Tiernon, (HSD088/2008) where the Labour Court recommended that the employee should have worked “under protest”. · Cashman v St. Patrick’s Hospital, Cork (UD154/2013) – where the Labour Court held that there had been “a persistent failure to obey a lawful and reasonable instruction [that] amounted to a serious sundering of the employment relationship”.
In particular, the Respondent’s representative pointed out the close parallels between the within case and the Cashman case above, where the employee claimed that he was unfit to walk to the staff car park, (which was further away than the public car park) but critically, failed to produce medical evidence to support his claim.
e) Mitigation/Calculation of Loss Without prejudice to their substantive responses in reply to the Complainant’s claims, The Respondent made a number of arguments in relation to mitigation of loss and any subsequent calculation of loss.
In a context where the employee had exhausted her sick pay entitlement at the time of dismissal, the Respondent submitted that if it is the case that the Complainant was in receipt of a health or injury -related Social Protection payment during the period after 26 October 2017 (the date of dismissal) then, ipso facto, she was unavailable for work and that period should be deducted from any calculation of loss.
In addition, the Respondent submits that if the Complainant remains on any such benefit and is certified as unfit to resume her normal duties with the Respondent, then she cannot lawfully maintain a claim for loss pursuant to the 1977 Act. |
Findings and Conclusions:
Preliminary Point:
The Respondent raised a preliminary point in relation to the time limits for submitting a claim of unfair dismissal. The Respondent’s legal representative contends that the Complainant’s submission of a complaint on 2 May 2018 in relation to a dismissal which, according to her complaint form, took place on 26 October 2017, is outside the time limit of six months, as set down in Section 8 (2) of the Unfair Dismissal Act, 1977.
Section 8 (2) of the Unfair Dismissal Act (as amended) states as follows:
“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015]) to the Director General —
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,”
Having carefully considered all of the evidence adduced in relation to the Complainant’s claim, I find that while the letter of dismissal, dated 26 October 2017, stated that the contract was terminated with immediate effect, it also provides the Complainant with the opportunity to appeal the decision. The evidence shows that the Complainant availed of this opportunity and her appeal was heard by an external investigator on 21 November 2017. The Complainant was advised of the outcome of her appeal by letter dated 12 January 2018. The appeal process upheld the original decision and the dismissal was confirmed.
Therefore, based on the above, I am satisfied that it was not unreasonable for the Complainant to have awaited the outcome of the appeal process before submitting her claim for unfair dismissal and that, as a result, the provisions of Section 8 (2) (b) of the Act should apply in this case.
I also note in this regard, that the Complainant submitted evidence, post the Hearing, by way of payslips, which showed that she was in receipt of payment from the Respondent as late as December 2017.
Taking all this into consideration, I find the Respondent’s preliminary point in relation to the claim being statute-barred is not well-founded and is, therefore, rejected. Consequently, I proceeded to consider the substantive element of the Complainant’s claim.
Substantive Claim: Having carefully considered all the evidence adduced in relation to the Complainant’s claim, it is clear that the central issue, which eventually led to her dismissal, revolved around her request to her employer to provide a reasonable accommodation in relation to, what she perceived to be a medical condition. However, notwithstanding this, it is noted that the Complainant’s claim is not one of discriminatory dismissal under the Employment Equality legislation. Rather, it is a claim for unfair dismissal under Section 8 of the Unfair Dismissal Act, 1977.
It is also noted that there is no dispute about the fact that a dismissal did take place.
Consequently, based on the above I proceeded to consider the Complainant’s claim of unfair dismissal.
Section 6 (1) of the Unfair Dismissal Act 1977 states 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 the circumstances, there were substantial grounds justifying the dismissal."
Section 6 (4) of the Act further states that:
"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”
Section 6 (6) of the Act states as follows:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”
The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds of gross misconduct, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee. It is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process. In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing." In order to appropriately assess the claim, it is necessary for me to consider the two central aspects pertaining to establishing if a dismissal is fair or unfair. Firstly, I am required to consider whether the Respondent had reasonable cause to dismiss the Complainant and, secondly, whether, in implementing that decision, the Respondent conducted a fair and reasonable process which protected the Complainant's rights in this regard.
My considerations of these aspects and my findings based thereon, are as follows:
Grounds for Dismissal: The allegations placed before the Complainant in the disciplinary process and which eventually led to the termination of her employment on the basis that they constituted gross misconduct related to (a) the Complainant’s failure and continual refusal to return to work in the period post 5 July 2017, at which point, she had been certified as fit to undertake normal duties and (b) the proffering sick certificates, purporting to establish the Complainant was unfit to work, which were false, in circumstances whereby she indicated that she was fit to return to work if the office relocation request was granted.
Having carefully reviewed all of the evidence presented I am satisfied that the Complainant, who had been on sick leave from 9 March 2017, was certified as “fit for her normal duties”, by the Company Doctor, as per his report to the Respondent dated 28 April 2017.
However, as a result of the Complainant’s dissatisfaction with her office accommodation, no return to work took place at that time. The matter progressed over the following weeks through meetings and correspondence between the Complainant and her employer, with additional contributions from the medical practitioners involved in the situation. During this period the Complainant’s formal request for a reasonable accommodation in relation to office location was considered and declined by the Respondent.
Based on all the evidence adduced in relation to the interactions between the parties during this period, it is clear that a stand-off developed whereby the Complainant, who though medically certified as fit to return to normal duties, was unwilling to return to work until the issue in relation to her office accommodation was resolved.
Notwithstanding the fact that her absence from work throughout this period was certified by her GP, all of the evidence suggests that the reason the Respondent was unwilling to return to work solely related to the issue of office accommodation. This is clearly set out in the Company Doctor’s report to the Respondent, dated 3 July 2017, in which he states, inter alia,: “Occupational Health does not have a role in this current difficult dispute between [the Complainant] and her employer. ……..[the Complainant] is not happy with her current office. I cannot establish a medical issue in this case and as such this dispute must be resolved as the HR/IR issue that it is. A prompt and appropriate resolution is the objective in cases such as this.”
Having carefully considered all of the evidence presented, I am satisfied that the Respondent did take the necessary and appropriate steps to establish the bona fides of the Complainant’s dissatisfaction with her office accommodation. This included having the office assessed by the Company Doctor and the Respondent’s Environmental Health experts. In this regard, I also note the Respondent’s evidence relating to fairness/consistency in the allocation of office space and the obligation to uphold the integrity of both the Job Accommodation Policy and the Sick Leave certification system.
Having given the matter appropriate and careful consideration, the Respondent declined the Complainant’s request. Clearly, the Complainant was dissatisfied with the Respondent’s failure to accede to her request for an office relocation. Having reviewed all of the evidence presented, it appears to me that the only outcome that would have met with the Complainant’s satisfaction would have been full concession to her request by the Respondent.
As already stated, it is not my role as Adjudication Officer to question the Respondent’s this decision. It is clearly within the sole discretion of an employer to make decisions and/or adopt positions in relation to HR/IR issues that arise within their business. However, having carefully considered all of the evidence adduced in this regard, I am satisfied that the Respondent’s decision to decline the Complainant’s request for an office relocation was arrived at after careful and reasonable consideration had been applied.
Consequently, I am of the view that the Complainant’s continuing failure to attend for work was both unreasonable and ill-advised in the circumstances. I am also satisfied that, prior to engaging in the disciplinary process, the Respondent gave the Complainant every opportunity to accept the outcome of the Job Accommodation process and return to work, thereby resolving the dispute.
Therefore, taking all of the above into consideration, I conclude that it was not unreasonable for the Respondent to consider the Complainant's continuing failure to attend work, in the circumstances that pertained, to be an act of gross misconduct. Consequently, I find that the Respondent had reasonable grounds on which to initiate disciplinary procedures and to issue a sanction of dismissal.
Application of fair process/procedure: The principle of “fair procedure/natural justice”, which is recognised at law, provides a right to basic fairness of procedures. It is imported into the employment relationship, by implication or explicitly (where agreed procedures for such matters exist). In simple terms, “fair procedure/natural justice” means that the employer must apply fair procedures and act reasonably at all times, particularly with regard to a disciplinary process concerning an employee.
In order to ensure the application of these rights, particularly, where a case involves a potential disciplinary sanction, including possible dismissal, it is widely accepted that an employer should:
(a) provide the employee with full details of the allegations being made, (b) allow the employee to respond to those allegations, by way of reply, (c) arrive at an objective conclusion/judgement following careful consideration of all the facts, (d) provide the employee with the right of appeal and (e) afford the employee a right to be accompanied/represented during the process.
Against this background, I considered the process and procedure adopted by the Respondent in the conducting of the disciplinary process, which ultimately led to the Complainant’s dismissed.
In submitting her complaint, the Complainant contended that the entire process was unfair and that policies were not followed. The Complainant also contended that the process was not transparent as critical documentation, including minutes of meetings/medical reports, were not provided to her in a timely manner and/or were not provided until after her employment was terminated.
The issue of fair procedure/process was one of the grounds of appeal raised by the Complainant and considered by the External Investigator who conducted the appeal investigation. I note the External Investigator did not uphold the Complainant’s claims in this regard, on the basis that “those involved, Ms E and Mr F,conducted the process in a conscientious and appropriate manner.”
Having carefully considered all of the evidence presented, I find myself in broad agreement with the External Investigator’s findings as they pertain up to that point, i.e. up to the appeal stage. However, I am of the view that there are serious procedural flaws with the manner in which the Respondent dealt with the outcome of the appeals process.
The Complainant had raised three grounds of appeal, as follows:
· That the investigation process was unfair. · That appropriate consideration was not given to her request for a further review by Third Party. · That appropriate consideration was not given to a reasonable accommodation for her situation.
The External Investigator did not uphold the first two grounds. However, the third ground, relating to the application for reasonable accommodation, was upheld, based on there being “some misdirection based on various perceptions of the relevant legal provisions”. The appeal findings were submitted, for consideration and decision, to Mr F, who at that stage was operating solely in his role as Director of Human Resources.
In his letter of 12 January 2018 to the Complainant, Mr F stated that he had to consider whether or not the inadequacy, highlighted by the External Investigator in relation to the “reasonable accommodation” issue “was material, in terms of the ultimate outcome of the disciplinary process (including the disciplinary sanction), at first instance”. Mr F went on to conclude that “whilst [the External Investigator] states the further consideration might have been given, I am of the view that same would not have materially affected the outcome of the disciplinary process at first instance and that the process, whilst not entirely free from imperfection, was substantially sound.”
On the basis of the External Investigator’s report and the substantial rejection of the Complainant’s grounds of appeal, Mr F upheld the original decision to dismiss.
Whilst I accept that the External Investigator rejected two of the Complainant’s grounds of appeal and that the basis for upholding the third ground is somewhat nuanced, I have to consider whether or not the Respondent’s consideration of these matters, impacted on the Complainant’s right to fair process and procedure. In particular, I must question the appropriateness of Mr F’s role at this stage of the process, when he had considerable involvement at the earlier stages, not just of the disciplinary process, but in relation to the handling of the entire situation as it evolved with the Complainant.
I note from the evidence that, even prior to the commencement of the disciplinary process Mr F was involved in a significant chain of email correspondence with the Complainant in relation to her medical situation and her request for reasonable accommodation. This shows that Mr F had significant “hands on” involvement in the Complainant’s case from an early stage. It is also noted that in a number of these emails, Mr F advises the Complainant that a failure to attend at work may lead to disciplinary action up to and including dismissal.
The evidence also shows the Mr F attended the Disciplinary Investigation meeting which took place on 5 October 2017, arising out of which the sanction of dismissal was imposed on the Complainant. While I acknowledge that the meeting was chaired by Ms E and that the dismissal letter, of 26 October 2017, was signed by Ms E, I cannot accept that Mr F merely had a passive role in this process and the decision which emanated from it.
In this regard I also note the Respondent’s submission that Mr F only sat in on this meeting in his capacity as Acting Business Lead, with responsibility for the Complainant’s work area and not as HR Director. I am satisfied that notwithstanding the organisational role which Mr F may have been holding at that time, his very presence at the disciplinary hearing in a management capacity, as a representative of the Respondent, created involvement in the process which renders any role at a subsequent stage inappropriate from a procedural perspective.
My view in relation to Mr F’s involvement in the early stages of the disciplinary process is further confirmed by the External Investigator’s findings, where she clearly considered him as integral to the process, when she stated in her findings – “Overall, I am satisfied that those involved, Ms E and Mr F, conducted the process in a conscientious and appropriate manner.”
From the original dismissal letter, of 26 October 2017, it appears that the Complainant’s appeal of the decision to dismiss her was going to be heard by Mr F. This is clearly how the Complainant interpreted that letter as it led to her raising objection to Mr F hearing her appeal. As a result, it was decided that the appeal would be heard by an external third party. However, when the External Investigator submitted her report, it was considered by Mr F, who concluded that the original decision to dismiss should be upheld.
It is clear that part of Mr F’s consideration of the External Investigator’s findings involved whether or not the matters raised therein would have materially impacted on the decision “at first instance”. As Mr F had a significant involvement at and prior to first instance, I am of the view that it was inappropriate that he should re-emerge as the final decision-maker, confirming the Complainant’s dismissal, at the end of the process.
As already stated, while two of the Complainant’s grounds of appeal were not upheld, in my opinion, the fact that the third ground was places an obligation on the Respondent to give careful and objective consideration to the situation, as a result. Having carefully considered all the circumstances, I must conclude that due to his prior involvement in the process, Mr F must be considered as not being in a position to provide the objectivity required in this scenario.
Taking all of the above into consideration and, in a context where the Complainant was an employee of 20 years standing, I find that, at this critical juncture in the process, the Complainant was not provided with the required fairness of process to which she is entitled.
Consequently, having carefully considered all of the evidence, I find that the Complainant’s dismissal from the Respondent’s employment was unfair.
Calculation of loss/compensation: Based on the evidence presented, I am satisfied that, having found the Complainant’s dismissal to be unfair, the most appropriate form of redress is compensation. In calculating the amount of compensation to be awarded I have taken into consideration the submissions made by and on behalf of the Respondent with regard to the Complainant’s availability for work in the periods following her dismissal.
I have also taken into consideration the Complainant’s role in the events which led to the instigation of the disciplinary procedures and her eventual dismissal. I consider that the Complainant’s behaviour contributed significantly to her dismissal. Having carefully considered all of the evidence I am satisfied that the Complainant’s insistence on an office relocation as a prerequisite to returning to work was unreasonable, particularly in the context where the medical evidence in relation to her fitness to carry out normal duties was at odds with her own perception of the situation.
I am further satisfied that it was, at all times, within the Complainant’s discretion to return to work, even on an “under protest” basis. However, her continual failure to attend at work in the circumstances gave her employer reasonable and legitimate grounds to initiate disciplinary process, which eventually led to her dismissal. The fact that the Respondent’s process has been found to be unfair at the final appeal stage, does not detract from the fact that the Complainant was, by and large, the architect of her own dismissal.
Consequently, taking all of the above into consideration, I find an award of €12,500 to represent a fair and reasonable compensation for the Respondent’s breaches of the relevant Act. |
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.
Based on the above decision I award the Complainant €12,500.00 in compensation. |
Dated: 31st July 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Unfair Dismissal Act Insubordination Gross Misconduct |