UD1256/2011, RP1655/2011, MN1354/2011

EMPLOYMENT APPEALS TRIBUNAL

                        UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms K.T. O'Mahony BL

Members:     Ms M. Sweeney

                    Ms S. Kelly

heard this claims in Limerick on 25 March

         and 7 November 2013

Representation:

Claimant:                     Mr Donal O’Rourke BL instructed by Mr Mark Murphy,

                                    Mark Murphy & Company Solicitors,

       99 O’Connell Street, Limerick

Respondent:                Ms Fiona Higgins, IBEC, Confederation House,

84-86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

At the outset the claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn.

Background

The respondent operates a chain of cinemas across Ireland and the UK. The claimant was employed as general manager in one of those cinemas (the cinema) from the spring of 2005, initially under a previous ownership of the cinema. Pursuant to a transfer of undertakings the claimant became an employee of the respondent. A staff of around 21 including supervisors reported to the claimant.

Respondent’s Case

During a visit to the cinema on 21 July 2010 AM was dissatisfied with the cleanliness of the cinema and raised issue about the claimant’s clocking-in and suspended the claimant on pay. The claimant was told not to contact work colleagues. The following day 22 July 2010 the claimant submitted a medical certificate stating that he was suffering from “acute severe occupational anxiety and stress” and would be out of work for two weeks. By letter dated 23 July AM confirmed the claimant’s suspension pending an investigation and in this letter stated inter alia:

“I am writing to confirm that you have been suspended from work until further notice pending investigation into a visit I made to the cinema on Wednesday, 21 July. During my visit I expressed my concern regarding the condition and cleanliness of the cinema. You did not have a reasonable explanation for this.

When I asked you when you last walked around the retail area of the cinema you said you try to walk around weekly but could not explain why it was in such a poor condition regarding cleanliness.

We also discussed your shifts on Monday and Tuesday and whether you had completed any review of cinema cleanliness. I noted that you had manually clocked on these shifts but could not verify these times due to the CCTV not working properly.”

AM wrote to the claimant on 2 August 2010 to invite the claimant to an investigation meeting on 6 August 2010stating, inter alia:

“I appreciate that you are presently unwell and I also note that your doctor has specified occupational anxiety and stress as the reason for your current absence. Whilst I understand that you are presently unwell, no doubt you can also appreciate that there is a clear issue with regard to your potential misconduct that needs to be addressed. Whilst neither the Company nor I have any desire whatsoever to harass you, I nevertheless consider that a speedy resolution of the above matters is required in the interests of both you and the company, as it may be that the potential disciplinary process is a major factor behind your current state of ill health.

Therefore, it would not make sense to postpone any projected meetings until you return to work and in view of the fact that the resolution of such outstanding matters is the very thing that would be likely to assist in any such return.

Whilst I acknowledge that you are presently away from work on sickness absence, it is not necessarily the case that because you are unfit to work, you are also consequently unfit to attend a meeting. Certainly your doctor’s notes do not confirm this to be the case. In this respect however, the company would be willing to make any adjustments necessary to facilitate your attendance, including such things as having the meeting(s) take place in a neutral location such as a hotel.

I would therefore propose that a fact-finding meeting hearing take place as soon as is practicably possible.

Please be advised that the Company considers the proposed meeting to be a necessary step to take. As a result, if having made every effort to reasonably facilitate your attendance you are still unable or unwilling to attend, then it may be necessary for the company to take further action on the basis of the evidence presently available. In relation to the potential disciplinary matter, this would likely involve you being invited to attend a formal disciplinary hearing.”

The letter later continues:

Finally … should the [disciplinary] process be postponed for any reason, then company policy dictates that if an employee falls ill during a period of suspension, then normal sick pay provisions apply.

On 5 August, the claimant submitted a second medical certificate confirming his absence for a further two weeks due to “severe stress and anxiety”.

AM again wrote to the claimant on 6 August 2010 stating inter alia:

         “I did receive your medical certificate dated 5^th August that you had arranged to be handed in at the cinema on 5^th August. This certificate did not state that you were unable to attend the meeting today but that you are currently unfit to work. As pointed out in my recent letter, it is important to understand that there is a difference between an ability to carry out your normal contracted duty and an ability to attend a meeting.

         As you will appreciate, in a situation such as this, it is often the case that the very fact of an outstanding potential disciplinary matter is a contributory (if not sole) factor behind an employee’s ongoing stress/absence – and we get into some form of vicious circle.

         That being the case, if the matter is left unresolved then your health may be affected further. My view is that it is usually in the interests of both the employee and the company to move matters forward without undue delay.

         In assessing an individual’s fitness to attend a hearing, we are aware that occupational health medical specialists assess this by applying the following tests:-

• Does the employee have the ability to understand the allegations made against them?
• Does the employee have the ability to distinguish right from wrong?
• Does the employee have the ability to understand and follow the proceedings, if necessary with extra time and written explanations?

I consider that the above questions can all be answered in the affirmative in your case, and you have not supplied any medical evidence (either from your GP or otherwise) indicating the contrary.

Therefore, with the above in mind, I am writing to give you a further opportunity to attend a fact finding meeting unless you can supply me with medical evidence, which addresses the points above, specifically confirming that you are too unwell even to attend the proposed meeting. If this is the case, I would then consider the viable options of either revoking your suspension and placing you onto sickness leave, or to conduct the fact-finding element of the investigation with you in writing.

The claimant’s doctor (the doctor) wrote to the respondent on 12 August 2010 in the following terms:

This is to state that the above named person is suffering from severe work-related stress/anxiety. He is taking medication for the same. Therefore in my opinion due to his illness and ongoing treatment he should not be put under any further stress, especially calling him to attend meetings or discussions relating to his position.

On 30 August 2010 AM wrote to the claimant to inform him that his status had changed from being on suspension to being on sick leave with retrospective effect from 12 August 2010, that under his contract the payment of sick leave was discretionary and would end as of 9 September 2010. The claimant was asked to attend an occupational health physician (OH) for assessment on 7 September 2010.

By letter dated 9 September OH reported that the claimant suffered some reactive symptoms due to “a reported work-related incident” and while he was suffering stress related symptoms OH did not feel that he had clinical anxiety or depression. OH found that the claimant was not fit to return to work but stated that if he followed his recommendations for managing his symptoms “I think it is likelythat he might be fit for returning to work in the near future i.e. four to six weeks.” However, OH felt that the claimant was fit to attend meetings to address his concerns about his work and that such meeting would benefit his eventual recovery. The claimant’s position was that even though he was not going out at the time he went to OH because he was a doctor.

Following receipt of the OH’s report AM wrote on 21 September 2010 inviting the claimant to a meeting on 30 September 2010. The claimant was advised that he could be accompanied by a colleague or trade union official and was again reminded that if he failed to attend the meeting it would go ahead without him. The claimant was also reminded of the respondent’s Employee Assistance Programme. The claimant did not attend either on 30 September 2010 or on the rescheduled date of 18 October.

On 29 October 2010 AM wrote to the claimant reminding him that his last medical certificate had expired on 9 September and that he was now in breach of the respondent’s absence policy (which requires continuing notification) and considered to be on unauthorised absence rather than sick leave and urging him to send medical certificates, for the duration of his absence, by 5 November. There was no response from the claimant.  

AM then asked the regional operations manager (OM) from the UK to become involved but her phone calls or messages went unanswered. By letter dated 2 December2010, OM invited the claimant to a disciplinary hearing on 9 December in relation to his unauthorised leave and his failure to maintain contact. He was asked to confirm his attendance by 7 December and reminded that should he fail to confirm his absence the meeting would continue in his absence and that a sanction up to dismissal may be imposed.

The claimant did not attend on the disciplinary meeting and on reviewing the evidence: the efforts to contact the claimant, the report from OH indicating that the claimant would be fit to attend meetings and would be back to work within four to six weeks, OM concluded that the employment relationship had irreparably broken down and took the decision to dismiss the claimant for unauthorised absence and failure to comply with company absence reporting procedures. She communicated her decision to the claimant by letter on 15 December 2010 and informed him of his right to appeal the dismissal within seven days.OM did not know that the claimant had a heart condition. OM accepted that she would not suspend an employee for failure to maintain cleanliness. A regional HR manager gave evidence that the norm in the respondent company is to fact find first and then to suspend.

In early March 2011 the claimant’s solicitor wrote to a senior area manager (SAM) in the UK, to whom OM reported, seeking to appeal the claimant’s dismissal and indicating that the claimant had been “decidedly unwell as a result of what happened in the course of his employment” and enclosing a letter from the doctor stating that the claimant’s “stress, anxiety and depression” was work related and rendered him unfit “laterally to engage with his employer….” On 14 April 2011 SAM wrote offering an appeal hearing on 27 April and indicated that he could be accompanied by either a fellow employee or trade union official. When the claimant attended for the appeal hearing with his solicitor it was explained to them that a solicitor was not allowed to attend but the claimant was given the option of going ahead on his own or adjourning the meeting so he could have an appropriate witness. SAM was eager to have a conversation with the claimant but the hearing did not proceed as the respondent’s procedures do not provide for legal representation during the disciplinary process.

On 23 May 2011, SAM wrote to the claimant stating inter alia

“Whilst the relevant time period for referring an appeal has lapsed considerably, I was prepared to hold a formal meeting as part of our internal processes. I was particularly interested in meeting with you to understand how you were as there had been no communication from you since last July and we were very concerned. We had tried to contact you on many occasions without any response from you.”          

The letter continued, offering the claimant the opportunity, should he so wish, to forward his concern in writing. SAM was aware that the claimant was absent due to stress. The issue for him was the claimant’s failure to engage and not this illness.

Claimant’s Case

The evidence of the claimant’s doctor (the doctor) was that the claimant was hospitalised in 2007 when he developed a serious cardiac condition which requires ongoing monitoring. In February 2009 he had difficulties with management and presented with severe anxiety and other related symptoms. He certified the claimant fit for work in April 2009.

The claimant’s position was that following the take-over of the cinema by the respondent he initially felt that there may be an opportunity for promotion. AM visited the cinema on a regular basis and they talked on the phone about three times each week. However, difficulties soon arose. AM excluded him from decision-making. It became difficult to get approval for repairs and maintenance. The claimant was not informed of any support structures. New technology was installed but training in it was not provided. The focus was all on the bottom line, cutting costs and pulling back. Communication between sites was discouraged and staff were let go. The claimant began to feel insecure and felt AM wanted him out. He was always looking over his shoulder. At one stage he had mentioned to AM that he had a heart condition.

The claimant had a clean disciplinary record and there had never been any issues with his employment. AM visited the cinema on a regular basis and spoke on the phone with the claimant a number of times each week. While the claimant was in charge, the cinema was always in profit and he was always received a bonus.

On 21 July 2010 AM did not carry out a thorough inspection of the cinema but wandered around, criticising things at random. Once in the office AM raised issue about manual clocking-in and the claimant informed him that as manager he clocks-in on the computer. AM maintained the cinema was dirty, suspended the claimant, escorted him down the stairs and out the door where he instructed him not to contact staff or suppliers. AM would not listen to what he had to say. He was dismissive and patronising. Contract/external cleaners clean the cinema. While he had been manager, the cinema had always passed health inspections and cleanliness had never been a problem. The claimant volunteered that the floor had not been scrubbed and a sink had tea stains but the area was not a health hazard. The boiler on the premises was not working but AM had ignored several requests to have it repaired. AM did not given him an opportunity to discuss anything. He was devastated. He had never previously been in trouble in any employment. The day became a blur.

The doctor’s evidence was that when he saw the claimant following his suspension in July 2009, he was very agitated, extremely stressed and tearful. He prescribed anti-anxiety medication for him. The claimant saw his locum on 12 August. On 19 August the doctor saw the claimant and certified that he was suffering from anxiety, stress and coronary heart disease and was unfit for work for the period 19 August to 9 September 2010. (The respondent received this certificate but was unable to locate it.) During August to October (inclusive) the claimant was unfit both for work or to engage in adversarial meetings. On some visits the claimant complained of chest pain and being concerned that the stress might trigger a coronary episode he advised him to stay well clear of the meetings. On his 12 October visit the claimant had very poor motivation, was crying and felt worthless. His condition had deteriorated but the doctor felt that he could still be dealt with at primary care level. They agreed that the claimant would apply for Social Welfare, which triggers a review process and he was contacted twice for a comprehensive account of the claimant’s condition. Medical certificates continue on a roll-over basis in such circumstances. The doctor did not see the report of the medical assessor. In general medical assessors support the patient’s doctor.

The claimant’s position was his suspension devastated him and he “fell off a cliff”. He suffered a huge anxiety and depression. He was on anti-depression medication up to early September 2013 and was still on anti-anxiety medication at the time of the hearing herein). He stopped going out. The letters stressed him even more. He sat in a darkened room for several months and could not do anything. He was “not present”. The letters stressed him even more: he could not deal with them or even read some of them. He saw them as threatening and he “was not in a place where he could answer them”. He was “medically and emotionally in a bad place”. He visited the medical assessor even though he was not going out at the time but went because he was a doctor but the medical examination was very short and cursory. He felt it was simply a box-ticking exercise by the respondent. He was in a dark place and could not meet management. He was not in a reasonable place and was not physically able to get up. He accepted that it would be reasonable to meet the respondent but he was not in a reasonable place. “It was hard to explain the place I was in.” The claimant accepted that he should have complied with the respondent’s procedures but he was not in a right place and was not thinking rationally. He “was just in a hole”

In early 2011 the claimant felt he should put his case and he was referred to a solicitor. His solicitor told the Tribunal that the claimant had been referred to him as he deals with employment law. The claimant’s position with the respondent was a good one and he had a partner and mortgage. From his doctor’s report it was clear that he needed some help. As he had been precluded from speaking to fellow employees and was not in a trade union the claimant suggested that his doctor accompany him but he advised that this would be most unusual. The claimant prevailed on him to attend the appeal with him but on meeting for the appeal hearing, SAM advised them that he (the solicitor) could not attend and gave the claimant the option of going ahead with the appeal on his own or adjourning the meeting until he would have someone appropriate to accompany him. The claimant’s position was that he did not know at the time that you could just ask a trade union official to help you. He could not go to the appeal on his own and needed someone by his side to help him. He did not know that the EAP was available to him. He got a job in April 2012 with his former employer.

Determination

The Tribunal reached a majority determination in this case.

Dissenting Opinion of Ms Sweeney

It is my opinion that at the time of dismissal and leading up to it, the issue was the unauthorised absence of the claimant and the non-contact with the respondent. Indeed the respondent did all that it could do in the circumstances to establish contact with Mr. Healy, in order to understand the nature and extent of his circumstances; provide him with the opportunity to engage with them in the process, in relation to his unauthorised absence; to attend meetings including a disciplinary hearing, and at every stage, the time lines were extended to facilitate a response by the claimant. This necessary communication to the claimant was considered by him to amount to harassment. There is no doubt that to be suspended is a very stressful and difficult experience, for anyone, particularly, when you believe that it is unjustified. The suspension was a catalyst for the subsequent events. However, after the 9th September, the failure to provide medical certificates and/ or explanation and/ or make or cause to be made any contact with his employer to explain his absence from work from September to December, substantially altered the nature of the issue the employer had to deal with. It was not in the respondent’s power to compel Mr. Healy to communicate with it or to force him to submit regular medical certificates. Neither could the respondent assume to ‘mind read’ his reasons for not communicating with them. In the absence of communication or other evidence from Mr. Healy, as to his cause of absence, following repeated requests, the employer is entitled to say enough is enough and proceed to make a decision on whether or not to terminate his employment.

On the date of dismissal, the Company were dealing with an employee who failed to communicate over several months, provided no medical or other evidence for absence, after the 9th. September, 2010. The last medical evidence, available to the respondent, in so far as it is relevant at all to the actual reasons for dismissal, was the OH report (Sept 2010) which was unchallenged by the claimant, who was sent a copy and invited to reply. The claimant or someone on his behalf was submitting medical certificates to Social Welfare to obtain disability benefit, and according to his solicitor ‘he dropped in the correspondence received’. Mr. Healy had access to legal advice from Aug/Sept. A failure, on the part of the respondent, to communicate in writing, in a clear and unambiguous way in relation to the serious matters arising, (reference to the suspension/change of status/request for medical certification/disciplinary meeting and the potential serious consequences for his employment of failure to make contact etc.) even though Mr. Healy found it stressful and deemed it to be harassment, would leave their procedures seriously flawed. The respondent was frustrated in its efforts to support or take a different course of action by the claimant, who failed to cooperate at any stage with them from 22nd July 2010 up to the date of his dismissal in December 2010.

In my view, therefore, the dismissal was not an Unfair Dismissal within the meaning of the Act.

Majority Decision

The claimant was dismissed for unauthorised absence in that he failed to furnish medical certificates covering his absence from work and further failed to respond to the respondent’s letters or telephone calls. Such failures almost invariably justify dismissal. However, the Tribunal must look at the unique circumstances of each case.

In late July 2010, following his suspension, the claimant submitted a medical certificate indicating that he was suffering from “acute severe occupational anxiety and stress” and further medical certificates were subsequently submitted covering his absence up to 9 September 2010. On 12 August 2010 the claimant’s doctor advised the respondent that the claimant was suffering from severe work-related stress/anxiety and that he should not be put under any further stress by requesting him to attend meetings. On 30 August 2010 the respondent retrospectively changed the claimant’s absence status from suspension to sick leave. Thereafter, the claimant did not respond to the respondent’s requests to attend meetings or submit medical certificates as required by the respondent’s absence policy or in any other way make contact with the respondent over several months and was ultimately dismissed in absentia in mid-December 2010.

In Dyer v. MacDougall (1952) 201 F.2d 265, U.S. Court of Appeals in a civil action, Learned Hand, Circuit Judge, commenting on the importance of the demeanour of a witness in assessing the evidence, stated:

It is true that the carriage, behaviour, bearing, manner and appearance of a witness – in short, his “demeanour” – is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale. Moreover, such evidence may satisfy the Tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.

Taking cognisance of this statement and the claimant’s compelling evidence the majority is satisfied that the claimant’s failure to attend meetings or to in any way engage with the respondent was not a wilful failure or refusal to so do but resulted from his traumatised state of mind and the harassing effect the respondent’s letters were having on him. The majority accepts that he was “not in a place” where he could engage and that he was unable to read some of the respondent’s letters.

The majority is satisfied that the claimant’s dismissal had its genesis in his suspension. The suspension of the claimant, an employee of five years’ standing with an unblemished record, was wholly disproportionate and unreasonable in the circumstances and had a devastating effect on the claimant. In Stanley Cole (Wainfleet) Ltd. V Sheridan [2003] IRLR 52 the English EAT upholding the decision of an employment tribunal (albeit in a case of misconduct) held that the issuing of a final written warning in respect of conduct which the tribunal considered as relatively minor misconduct justified a claim for constructive dismissal.

The respondent sought to rely on FrankShortt vRoyal Liver Insurance [2008] IEHC 332, where Laffoy J stated that an employer is entitled to assume that the employee is able to withstand a certain degree of stress, associated with being subjected to a disciplinary process and being transferred to a different position, in the normal course of employment. The instant case can be distinguished from that statement of the law on two grounds. Firstly, Laffoy J qualified this statement by stating that the employer may make such an assumption “[in] the absence of any reason for a contrary conclusion”. In the instant case the respondent was on notice at least from 22/23 July 2010 that the claimant was in a vulnerable state of mind. Secondly, Shortt was a personal injuries action where the test of liability is based inter alia on the foreseeability of the injury, whereas in a dismissal case the test is whether in the particular circumstances obtaining the employer acted reasonably. The September report from the occupational health physician, to whom the respondent had referred the claimant, varied in significant respects from the medical certificates and letter provided by the claimant’s doctor and in particular from his letter of 12 August 2010. Given such variation and the nature of the claimant’s illness a reasonable employer would at the very least have sought the opinion of a medical specialist before dismissing the claimant. On this point the Tribunal is aware that the claimant was not responding to or even reading correspondence from the respondent but it does note the claimant’s evidence, on his referral by the respondent to the occupational health physician in September 2010, that although he was completely withdrawing into himself at that time he none the less visited OH because he was a doctor.

While SAM was willing to extend the time for appealing the dismissal by around three months he was not willing to extend any leniency to the issue of representation for an appeal hearing. While noting the options offered by him to the claimant, the majority feels that a reasonable employer, being aware of the contents of the doctor’s letter enclosed with the letter seeking the appeal, would have some attempt to reach a compromise of some nature on this issue.  

In all the circumstances the Tribunal finds by majority decision that the claimant was unfairly dismissed. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €20,000.00 under the Acts.

Following the termination of his employment the claimant was on sick leave and therefore unable to work. Therefore the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)