UD2295/2010, MN2243/2010, WT1020/2010

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                            CASE NO.

EMPLOYEE - claimant                                                                              UD2295/2010

                                                                                                                     MN2243/2010

                                                                                                                     WT1020/2010

against

EMPLOYER - respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr D.  Hayes BL

Members:     Mr R.  Murphy

                     Mr. P.  Woods

heard this claim at Dublin on 2nd April 2012

                          and 28th June 2012

                          and 29th June 2012

                          and 20^th September 2012

                          and 21^st September 2012

Representation:

_______________

Claimant(s) :       

Respondent(s) :  

Determination

The claimant commenced employment with the respondent in 1985. After a protracted period of absence, which commenced in July 2006, the respondent commenced disciplinary proceedings. On foot of these proceedings, the claimant was dismissed in November 2008. That dismissal was confirmed, after an internal appeal, in August 2010.

The background to the claimant’s absence was a number of interactions with dogs that occurred in the course of his employment. The claimant had formed the opinion that the respondent had previously taken insufficient steps to protect him from dogs. In fact, the respondent had a well-established procedure for dealing with complaints in relation to the possibility of dogs attacking its employees. In the previous cases the dogs had been reported to the Gardaí and the dog warden and, in addition, service had been withdrawn from the owners of the dogs in question.  It appears that the claimant was not satisfied with these steps and felt that the respondent ought to have compelled the dog warden, in each case, to “deal with the dog”. It is not clear what the claimant meant by dealing with the dog or how he thought the respondent ought to have compelled the dog warden. Nonetheless, it seems that the claimant’s apprehension of how past incidents had been handled coloured his perception of two incidents in July 2006.

The Tribunal heard much evidence in relation to previous difficulties that the claimant had had with dogs much of which was, to a large extent, of tangential relevance to the matters at issue.  The Tribunal also heard evidence in relation to allegations of bullying and harassment. The Tribunal is satisfied that these were dealt with on a local and informal basis. While the claimant may have disagreed with the respondent’s resolution of his complaints he did not seek to further any such grievance until the matters at issue before the Tribunal arose.  Further, the Tribunal is satisfied that he did not express any grievance in relation to bullying and harassment in any but the vaguest terms.

The claimants’ absence was triggered by two incidents in quick succession in July 2006. In both incidents he was attacked by different dogs.  The second incident was exacerbated by what the claimant said was the belligerence of the dog’s owner.  A complaint was subsequently made by the dog’s owner that the clamant had threatened to have the dog killed. What actually happened does not appear ever to have been established and a resolution is not necessary for the purpose of this determination. It is clear, though, that the Gardaí and the dog warden were notified and that the respondent had been advised by them that the dog in question did not pose a threat to the public. 

(DH), from the respondent’s HR department, met the claimant in November 2006 and January 2007 to discuss the claimant returning to his duties. In the course of these meetings the claimant expressed dissatisfaction with how his complaint had been handled. His view was that the respondent’s service should have been withdrawn from the customer and the dog shot.  Subsequently advice was sought from the respondent’s Chief Medical Officer. The CMO advised that a fear of dogs was not a medical condition as it comes within the normal range of human emotion. On foot of that advice the claimant was instructed to report for work on the 26^th February 2007. The claimant sought to be reviewed by the CMO and his return to work was, accordingly, deferred. The CMO met the claimant in April 2007 and noted minimal, if any, symptoms. He further noted that the claimant had not been receiving any treatment from his own doctor. The CMO told the Tribunal that, had the claimant had symptoms, he would have expected him to have received some treatment given that he was, at that point, nine months into his absence.  The claimant did not dispute his absence of treatment and no evidence was called to rebut that evidence of the CMO. The CMO discussed the possibility of redeployment with the claimant but the claimant would not countenance the option. The CMO told the Tribunal that the claimant inquired about his eligibility for ill-health retirement and was told that he did not qualify.

In a further meeting that (DH) had with the claimant in May 2007, the claimant was asked to provide specific details of the alleged bullying.  In the course of the meeting he told (DH) that he believed that he was unfit for work due to stress. Notwithstanding that, subsequent to the meeting the claimant was instructed to return to work on the 5^th June 2007.  On 31^st May 2007 the claimant wrote to (DH) to seek the opinion of an independent medical expert as his GP’s opinion was not in agreement with that of the CMO. He did not return to work and was informed on 4^th July 2007 that it was now considered that he had failed to comply with a management instruction to return to work and that a recommendation would be made for his dismissal.

He was reviewed by the CMO in August 2007 and advised that his workplace concerns could be controlled on his return to work and a number of solutions were discussed with him.  He was not interested in them.  He again made inquiries about the possibility of ill-health retirement.

(DH) again met the claimant in September 2007 to discuss his return to work and again the claimant insisted that he was not prepared to return.  Accordingly he was suspended with pay from 24^th September 2007.

It was suggested that this was a breach of fair procedures as the respondent’s disciplinary process did not allow for suspension in such circumstances. The Tribunal is satisfied that, insofar as it was a breach, it was no more than a technical one. Given that, in any case, the claimant was refusing to return to work no unfairness flowed from it. 

The handling of the matter passed from (DH) to (TO), a HR executive, to be dealt with as a disciplinary matter. A number of meetings were arranged and deferred. (TO) met the claimant on 7^th February 2008.  In the course of that meeting he told (TO) that his GP was in the process of arranging a psychiatric referral. A medical report was subsequently obtained from the psychiatrist whose opinion was that the claimant was unfit for work due to a combination of moderate depression and traumatic situations involving dogs and work colleagues.  Notwithstanding that report the respondent continued with the disciplinary process and a further meeting was held in November 2008. He was again asked to consider alternative forms of work that would accommodate the cause of his stress. He told (TO) that he was not prepared to return to work under any circumstances.  He was given a further opportunity to consider that position with a caution that if he could not commit to return to work that a recommendation for his dismissal would be the only alternative. No subsequent response was received and by letter dated 18^th November 2008 the claimant was informed that a recommendation for his dismissal was being made.  By letter dated 27^th November 2008 his dismissal was confirmed.

As noted above, the claimant appealed that decision and his dismissal was confirmed on appeal. 

It was submitted that in the circumstances the respondent ought to have sought a further medical report given the dispute between the claimant’s medical advice and that given by the CMO.  However, it seems that the claimant was attending his GP for the purpose of having his absence certified rather than treatment. Certainly he told the CMO that he was not treated by his GP during the first nine months of absence. Further, he told the Tribunal during examination-in-chief that he had not attended his GP after having been suspended as he no longer required to be certified. His referral to the consultant psychiatrist came in the course of the disciplinary process and does not appear to have been for the purpose of treatment. 

However, it does not appear to the Tribunal that there is a significant difference between the opinion of the CMO and that of the psychiatrist. The consultant’s view was that the claimant was unfit for work due to traumatic incidents with dogs and work colleagues. The CMO’s opinion was that his fear of dogs was not a medical condition but a workplace issue that required management. Similarly, in relation to his complaints of bullying, the CMO’s advice was that the status of his complaint be determined and addressed. It is noteworthy in this context that, although requested to do so, the claimant never furnished details of his grievance in this regard. The claimant was not interested in any role in the respondent’s employment that would have allowed management of his issues. On the other hand, the claimant had made it clear that he did not wish to return to work under any circumstances. There are cases in which a prudent employer will undertake further medical inquiries but this case does not appear to the Tribunal to be one of them. The Tribunal is satisfied that the respondent had made repeated efforts to secure the return of the claimant to employment and to address his concerns and issues. Such a process, however, is a bilateral one and the claimant did not wish to partake.

The Tribunal is satisfied that the claimant refused to return to work and that the respondent was entitled to make a decision to dismiss him on that basis.  The Tribunal is not satisfied that there was any infirmity of procedure so as to render the dismissal unfair. Accordingly the claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 is dismissed.

In the context of this case the Tribunal is satisfied that dismissal without notice was not justified.  Pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2005 the Tribunal awards to the claimant compensation in the amount of €7,688.

A claim was made pursuant to the Organisation of Working Time Act, 1997.  However, no evidence was adduced to substantiate such a claim and the said claim is therefore dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)