EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE – claimant UD537/2011
Against
EMPLOYER – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O'Leary BL
Members: Mr M. Carr
Mr O. Nulty
heard this claim at Drogheda on 7th November 2012 and 10th September 2013
Representation:
Claimant(s): Mr Liam Bell BL, instructed by:
Ms Aoife McGuinness
McDonough & Breen, Solicitors,
Distillery House, Distillery Lane, Dundalk, Co Louth
Respondent(s): Ms Amanda Manley
IR/HR Executive,
IBEC,Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Background:
The claimant was employed as a sanitation operator at a food production plant operated by the respondent company. This was a skilled position and it required the employee to strip machines down, clean them and put them back together. This work was done at night. On 20 October 2008 the claimant had an accident at work. He fell a number of feet to a metal floor and sustained a back injury. He was absent from work for seven months. There were numerous meetings held between the claimant and the HR department for the purpose of getting the claimant back to work. He returned to work on light duties on 25 May 2009. He remained on light duties for several weeks.
He was certified unfit for work by his GP on 9 September 2009. He was certified fit to work on 5 October 2009. In November the claimant requested to work days as he was having marital difficulties and wanted to be at home at night. He worked on the dayshift for two days and requested to return to nightshift. He was given time to resolve personal issues. The claimant sought more time off in January 2010 for personal difficulties. The claimant made a bullying allegation on 5 May 2010. The respondent investigated the matter and the claimant believed it had been resolved.
The claimant went on sick leave on the 28th July 2010. The respondent tried to set up meetings with the claimant.
The HR Manager was frustrated with the claimant as he refused to permit his GP to provide the company with a medical report. The respondent produced a document produced by the company’s occupational health nurse on foot of the claimant’s visit to an occupational physician. The physician had not authored the report.
Several meetings were held but the claimant was not informed the purpose of the meetings. The claimant said he had problems mixing with people. However it came to light the claimant was refereeing at matches while absent on sick leave. The Production Manager spoke to the claimant and said to him that if he was fit to referee at matches he could return to work.
The claimant was dismissed on the 28th September 2010 following a meeting on the 24th September 2010. Five reasons were given in the letter of dismissal for the decision to dismiss him.
1.”Your current ongoing and lengthy absence from work.
2. Your failure to provide a reasonably foreseeable return to work date.
3.Your failure to co-operate with the company in terms of providing a medical report or consent to contact your GP.
4. Your continued uptake of paid refereeing duties while off work on sick leave.
5. Inability to substantiate the allegations you have made against a co-worker which you allege is preventing you from returning to work.”
The claimant was given the right to appeal the decision within 5 working days.
Respondent’s Position:
Several witnesses for the respondent gave evidence including the company Doctor. They felt they had carried a full investigation into the alleged bullying incidents but could not substantiate them. They were aware the claimant and the colleague in question did not get on. One witness agreed there had been no written conclusion of the investigation into the bullying. It was also agreed the claimant was not made aware at what stage the disciplinary process was at.
The respondent Doctor stated that the claimant had been suffering with depression because of the alleged bullying and he had not been able to give a probable date of a return to work for the claimant.
The Production Manager stated that there had been no alternative but to dismiss the claimant. He did not avail of the opportunity to appeal the decision.
Claimant’s Position:
The claimant stated he had been very uncomfortable working with the colleague who, he says, bullied him. He had been informed by his Supervisor that he would deal with the matter. He told the Tribunal that he had wanted to return to work and explained his refereeing at matches was very different to working on the respondent’s premises.
A letter of dismissal was sent to him and he sought legal advice. He sought to appeal the decision.
The claimant gave evidence of loss.
Determination:
The Tribunal having heard the evidence in this matter determined the respondent failed to implement procedures outlined in the company handbook in this case. In particular they failed to inform the claimant of the purpose of the meetings that he was requested to attend which were begun as investigatory meetings and culminated in a disciplinary meeting which was not so called.
The claimant should have been informed of the likely event of his dismissal if he failed to produce to them medical evidence justifying his absence. The respondent acted without obtaining any reasonable medical evidence regarding the claimant’s condition. The claimant should have given permission to the company doctor to consult with the claimants medical advisors without qualification. His participation in sports as a referee may or may not have assisted in his recovery. His inability to substantiate his allegations made against his supervisor in the absence of malice could not of itself be a reason for dismissal.
In the circumstances the claimant is deemed unfairly dismissed and the Tribunal determines that the claimant be re-engaged from the date the order is signed, under the Unfair Dismissals Acts, 1977 to 2007. The reason for re-engagement being awarded in this case is because the claimant was unfit for work until the 6th July 2012.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)