EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1158/2012
Against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr N. Ormond
Mr P. Trehy
heard this claim at Dublin on 31st October 2013
Representation:
Claimant : Mr Michael McCormack B L instructed by
Daly Lynch Crowe & Morris, The Corn Exchange, Burgh Quay, Dublin 2
Respondent : Ms Ruth Mylotte B L instructed by
Mason Hayes & Curran, Solicitors, South Bank House, Barrow Street, Dublin 4
The determination of the Tribunal was as follows:
Respondent’s Case
While the respondent operates in several countries its registered office is located in the United Kingdom. Its lingerie products are mainly manufactured in East Asia and it sells those products to a number of retail outlets throughout Britain, Ireland and beyond. Its sole employee in Ireland was the claimant whose employment with the respondent commenced in the autumn of 2003 and ceased in disputed circumstances in early 2012. During the course of his employment the claimant carried the titles of general manger and sales executive director. His role and function, however, remained constant in that it was to develop the business in Ireland. That involved among other activities visiting current and potential customers. The respondent provided training and other support to the claimant to allow him to undertake his role.
By February 2011 the respondent had conducted an audit into the claimant’s workload. That report produced apparent discrepancies and inconsistencies between his call reports and what was logged and measured in that audit particularly regards his mileage and locations. The respondent’s former human resource manager and its director of sales approached the claimant at the conclusion of a trade fair and presented the report and their comments on it to him. That short meeting was followed up with an invitation to him to attend an investigation meeting with the purpose of eliciting his views on the audit report and his actual work. That meeting took place on 3 March and the human resource manager’s notes of it were presented as evidence. She told the Tribunal that the meeting went well. The claimant acknowledged he was not doing his job the way it should be done. No opportunity arose at that meeting to challenge the claimant on the anomalies and mismatches exposed in the audit as against his own accounts of that work.
The following day the respondent received a medical certificate from the claimant’s doctor stating he was unfit for work. This was the first of several such certificates which were submitted on a regular basis up to August 2011. This witness was also the recipient of a letter from the claimant’s solicitor asking her to direct all correspondence relating to the claimant to the solicitor’s office. The human resource manager was surprised to read that the claimant was suffering undue stress due to the way the company was treating him. The respondent commissioned an occupational health physician to examine the claimant. The consultant’s opinion is in the following terms
“In my opinion the claimant is suffering from an adjustment reaction disorder which I note he relates to his perceived stress within the workplace. I note that he denies any past mental health concerns so the prognosis should be excellent.
Taking into consideration the level of symptoms I feel he would benefit from cognitive behavioural therapy. In particular I feel he would benefit from four sessions of cognitive behavioural therapy and following his treatment, which I feel should be over a period of 6 weeks, I feel he should be in a position to return to the workplace. Following treatment in 6 weeks time I would advise that he meets with H.R. to address any outstanding issues and confirm a return to work date.”
From late August onwards the witness wrote on a number of occasions to the claimant’s solicitor seeking information on his health, status and general wellbeing. The brief response was that the respondent “destroyed” the claimant.
Due to the continuing lack of response from her correspondence the human resource manager wrote directly to the claimant on 11 January 2012. Two days later she took a phone call from his solicitor who stated that his client was not returning to the company. In her letter to the claimant she indicated that her intention was that she would issue him with a P45, unless she heard that he was not resigning from the company. By that stage he had been absent from March the previous year and no medical certificates had been received by the respondent covering that absence from 8 August 2011. By 20 January and with no indication to the contrary the witness issued the claimant with his P45. She wrote that the respondent was willing to withdraw that document under certain defined conditions.
By that date the respondent was frustrated by the lack of response from the claimant and his solicitor. According to the witness he had effectively resigned from the respondent company due to this dearth of communication, absence of medical certificates, and the comments of his solicitor on 13 January 2012. It was never the respondent’s case that it was accusing him of any wrong doing or seeking his resignation. The company’s initial rationale in engaging with the claimant was to address disparities between what the audit produced and what the claimant submitted on his workload.
The managing director and chairman reiterated the company’s deep frustration with the claimant’s and his solicitor’s lack of engagement with the respondent relating to the claimant’s continuing and lengthy absence from his workplace. The original objective by the respondent was to explore the irregularities identified in the audit report. No accusations were levied against the claimant for whom he had a lot of respect for and a good personal relationship with. His attempts to contact him from March 2011 onwards drew a blank.
Claimant’s Case
The claimant commenced employment with the respondent in the autumn of 2003. He told the Tribunal that he had “worked his backside off” for the company and had increased their profile and profits in Ireland. On 22 February 2011 “his world came crashing down” as he was presented with the respondent’s concerns relating to an audit on aspects of his work. He was not “in a good place” as an investigatory meeting approached in early March as he had not been sleeping properly. He felt accused of cheating, and reacted very emotionally to that accusation and was not in a fit state to deal with this scenario. He described the investigatory meeting as shocking and surreal and had difficulty in recalling what he said there. The notes of the human resource manager were incomplete and some were inaccurate and misleading. Statements were distinct from the questions that were put to him. The respondent had its mind made up about him and was seeking his resignation. When he told the sales director about his condition the response was to “pull yourself together”. The claimant was neither offered nor asked for an adjournment of that meeting. That was his last day at work as his health suffered due to the respondent company’s treatment and approach.
His wellbeing was further eroded by subsequent letters from the respondent and the claimant acted on advice not to deal directly with his employer. His regular medicate certificates were passed on to his solicitor who in turn forwarded them to the respondent. Those certificates covered his ongoing absence from March 2011 up to January 2012. The examination by a physician arranged by the respondent was a “window dressing exercise” and the company was not willing to fund the recommended follow up to it and he could not afford to.
The claimant handed the respondent’s letter of 11 January 2012 to his solicitor. The claimant was not prepared to return to work while still certified unfit to do so. A meeting was sought with the managing director but on receipt of his P45 he regarded himself as having been dismissed from the respondent.
Determination
A vacuum emerges to fill the gaps in communication. Assumptions can accumulate and even conclusions may be reached to fill those gaps. While the respondent’s initial attempts to address the work issues with the claimant could be perceived by him as insensitive his reaction to those attempts was extreme and ultimately counter productive. The claimant’s lack of direct engagement with the company from early on in this case ill served him. Depending almost entirely on others to conduct your affairs, especially something as important as your employment, can, and in this case, did damage his position.
The respondent’s handling of this case was in the main, fair, patient, tolerant and understanding. The Tribunal accepts their aim was not to force the claimant’s resignation or to set him up for a dismissal. Taking into consideration the circumstances of this case, on balance, the Tribunal regards the claimant’s termination of employment as a direct dismissal case. In any event the parties had already indicated to the Tribunal that the issue of dismissal and the jurisdiction to hear this case were not in dispute. Furthermore the Tribunal finds that this dismissal was not unfair under the Unfair Dismissals Acts, 1977 to 2007. The respondent was justified and reasonable in concluding that the claimant had frustrated his contract of employment with it and had effectively abandoned his employment with the company. Having regard to all the circumstances in this case, the Tribunal is of the view that the respondent company acted reasonably. The tribunal is mindful of the sentiments as expressed in the cases of – “Bunyan v United Dominions Trust” 1982 ILRM 404 at 413- “The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances, in that line of business would have behaved”. And in – “Union of Construction and Allied Trades and Technicians v Brane” 1981 IRLR 224 “It is a very sensible approach for tribunals to put themselves into the position of the employer, informing themselves in that position and then asking the question, “Would a reasonable employer in those circumstances dismiss?” – The answer to that question the Tribunal feels is in the affirmative. The Tribunal has also regard to section 6 (6) of the Unfair Dismissals Acts – “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or 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 sub-section 4 of this section or that there were other substantial grounds justifying the dismissal.”
The claim under the Unfair Dismissals Act, 1977 to 2007 falls.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)