Complainant

Respondent

Parties

Marcin  Szkarlat

Keelings Retail Unlimited Company t/a Keelings

Representatives

Mr J Bradley BL instructed by

Anthony D'alton of O'Hanrahan D'Alton Solicitors

Ms S Dowling of IBEC

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-00068963-001

31/01/2025

The complaint concerns an allegation of Unfair Dismissal by a Warehouse Operative against a large Retail Wholesale Company.

The employment began on the 1st July 2008 and ended on the 3rd September 2024.

The rate of pay was stated by the Complainant to have been €542 gross for a 39 Hour week.

The Complainant was represented by Mr J Bradley BL instructed by of O'Hanrahan D'Alton Solicitors. The Complainant gave extensive Oral testimony supported by a substantial Written Submission.

In essence his complaint was that he had been Unfairly Dismissed by the Respondents following a procedurally unfair process. He had suffered a serious Workplace accident on the 23rd October 2023. This had prevented him returning to work. The Respondent employer had compelled him to attend numerous Company Occupational Health investigations and reports. These Company originated Reports had declared him fit for work.  This was in complete contradiction to his own GP and specialist Physicians he had consulted.

A number of meetings had also taken place with Company Management

At no stage during the process was he ever informed that his employment was in jeopardy. The Complaint had poor English language skills and this was never allowed for. At late stage in the Occupational health investigations, he had informed the Occupational Health Doctor that he was developing Stress/Anxiety symptoms. This had been ignored.

Mr Bradley BL referred to the landmark case of Bolger v Showerings (Ireland Ltd) (1990) ELRR 154 where the issues involving Ill Health & Capacity Dismissal were considered at length. Suffice to say that the High Court had set a vigorous set of standards which the Respondent had fallen seriously short of. The case of An Employee Dismissed wile on Long term Sick Leave v An Employer ADJ`-00005398 was also cited as reinforcement of the High Court ruling.

Mr Bradley summed up the case as one where an employee on a genuine illness absence had been subjected to an Unfair process to orchestrate his dismissal. Substantial redress is warranted.

The Complainant was subjected to cross examination from Ms Dowling for the Respondent.

The Respondent was represented by Ms S Dowling of IBEC supported by Managers, Ms M and Ms S., Detailed Oral testimony was given supported by a substantial Written Submission.

The Respondent did not contest the Dismissal which had happened on the 3rd September 2024.

It had taken place following an extensive process of Occupational Medical reviews and meetings with the Complainant. The Complainant had refused to allow the Occupational Health Physician access to specialist reports that had been undertaken. He had refused to allow communications with a Consultant Neurosurgeon he was attending. The Occupational Health Physician could only then rely on direct examination, in his surgery , of the Complainant.

Ms Dowling referred to three Occupational Health examinations – the final two had declared the Complainant fit for work. The Occupational Health Physicians are well known independent practitioners.

 A number of direct meetings with Respondent Managers  had taken place with the Complainant. At one such meeting a Translator was provided. Ms M, the HR Manager , stated under Oath that here could have been no doubt that the Complainant was fully aware of the consequences for his employment situation. “His Job could not be held open indefinitely”.

Ms Dowling ,for the Respondent , relied heavily on Bolger v Showerings ( Ireland Ltd) (1990) ELR 184. She pointed to the four tests set out in this case namely that 1) Ill heath has to be the reason, 2) Ill health has to be substantial, 3) the Employee must be aware that a dismissal for incapacity is being considered and 4) the employee has to be given full opportunity to make his case.

She contended that all four tests had been comprehensively met by the Respondent. Comprehensive written evidence, (Occupational Health reports , copy correspondence and meeting minutes) was presented .

The Respondent is a substantial employer with very professional documented procedures. All were followed. Before the final Dismissal meeting on the 3rd September 2024 a final Occupational Health Report had been commissioned . This had declared the Complainant fit for work.

As the Complainant was refusing to return to work a Dismissal was then inevitable. All HR procedures had been followed with great care. Medical Occupational Health  reviews had been extensive. Dismissal had not been a decision taken lightly .

Ms Dowling noted that Complainant had not availed of an offered Appeal to the Dismissal.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified this  Natural Justice principle into a set of guidelines.

3:2  The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for  Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer  and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office  at page 1295 :

        “ The employer ,not the tribunal is the proper person to conduct the investigation into alleged  misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances  and whether the decision to dismiss ,in the light of the results of that investigation ,is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen  Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness” i.e. what would a reasonable Employer do in the situation not what an Adjudicator might decide.

Section 6(4)(a)  of the Unfair Dismissals Act,1977 is particularly relevant.

4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(Underlining by Adjudication Officer).

The entire area is discussed extensively at Chapter 15 of Desmond Ryan - Remond  on Dismissal Law,  Bloomsbury 2015, 3rd Editon. Suffice to say it is a very disputed Legal area. Medical evidence can be quite open to numerous , possibly ambiguous , interpretations . It has to be treated with considerable care.

In the case in hand extensive reliance was placed on a landmark High Court case Bolger v Showerings (Ireland) Limited [1990 ELR 184]. Ryan, himself , places considerable emphasis on this case.

However all Legal questions notwithstanding all cases rest on their own factual matrix and evidence presented to the Oral hearing. This must be examined below.

3:3     Review of the Evidence both written and Oral.

Extensive written evidence was presented by the Parties and supported by considerable witness evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the  Legal representatives.

Taking Mr Justice Floods dictum that “Natural Justice has to be paramount” - quoted above  (Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137)  and having listen to all the oral evidence & carefully read all the documentation & extensive employment procedures, the Adjudicator  came to the view that a full and fair process had been followed up to and including the final offer of an Appeal. No major or invalidatory faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings could be found.

The Oral and Written evidence of the Complainant was telling.

Reading the first Medical Assessment report of the 13th September 2023 where the Complainant was assisted by his Sister, Ms A, as an Advisor and Translator the Physician noted that ,following advice from his Sister ,the Complaint refused to allow the Physician access to any Hospital or other Specialist reports. This position was maintained throughout. The Complainant stated that he needed to obtain “Legal Advice” on this point. The Physician noted that he had “not heard a reply” on this point since the date of the examination.

This point was noted again in both follow up Medical Assessments. The question of the non-availability of Reports from a Neurosurgeon in Poland or Ireland was certainly unhelpful to the Occupational Health physicians.

Section 14 (4) of the Act is worth noting here.

Section 14 of the Unfair Dismissals Act ,1977

Notice to employees of procedure for, and grounds of, dismissal.

(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.

(Underlining by Adjudication Officer)

A Respondent Employer can only rely, as is procedurally proper, on Independent Occupational Medical Health advice . The Medical Reports indicated that the Complainant was “fit for work”.

He consistently refused to provide external Medical evidence from his treating Specialists that might have caused the Respondent or the Occupational Health Physicians to reconsider their views.

It appeared to the Adjudicator that there was possibly some “Overhang” in relation to other possible Legal avenues related to his accident of October 2023. Regarding the alleged weak English Language skills of the Complainant, these did not seem to have been an insurmountable issue.

In summary, the decision of the Respondent employer to Dismiss the Complainant, declared medically fully fit  but refusing to return to work on the basis of undeclared external medial evidence could not be deemed Unreasonable .

Mr Justice Flood, quoted above is also relevant.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of reasonableness to

1.       the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.       whether the procedures adopted were fair and reasonable and

3.       the reasonableness of the conclusion arrived at by the Respondent.

Taken with the “tests” referred to above in Bolger v Showerings (Ireland Ltd) (1990) ELR 184 and Mr Justice Floods comments the Respondent decision to dismiss was not “Unreasonable”.

3:4       Adjudication Summary

A case for Unfair Dismissal has not been made out. The actions of the Respondent Employer were within the Band of Reasonableness.

The case fails.

Unfair Dismissals, Medical evidence.