EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Damian Molyneaux (claimant) UD2426/2011
against
Kildare County Council, (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr F. Moloney
Mr F. Barry
heard this claim at Dublin on 24th September 2013 and 28th March 2014
Representation:
_______________
Claimant(s) : Mr Paul Henry, Siptu, Membership Information & Support,
Liberty Hall, Dublin 1
Respondent(s) : Mr Don Culliton, Lgma (Lgmsb), 35-39 Ushers Quay, Dublin 1
The determination of the Tribunal was as follows:
Both parties made extensive written (filed) and oral (noted) submissions to the hearing.
Summary of Respondent’s case
The HR Manager told the Tribunal that on-going issues with the claimant came to a head in late 2009. The claimant was employed as a Caretaker in the Library Service and was on long term sick leave since August 2009 and as a result the respondent arranged for a medical for the claimant which took place on 11th February, 2010. A number of grievances were highlighted by the claimant against the respondent. Prior to the claimant’s sick leave, a meeting was held on 12th June to discuss issues. A further meeting scheduled to take place on 7th August, 2009 could not take place as the claimant was on sick leave.
The claimant was informed in writing by the respondent by letter dated 21st April, 2010 that any complaints should be brought forward and would be addressed using the respondent’s policies under the Grievance and Discipline and or Dignity at Work. According to the HR Manager, no specific allegations were put forward by the claimant.
The respondent’s doctor recommended a return to work on a phased basis as per visit on 5th July, 2010. A further visit to the respondent’s doctor on 12th July 2010 stated that the claimant was fit to return to work on a phased basis as already stated.
The respondent wrote to the claimant on 16th July, 2010 stating that it was acceptable for the claimant to return to work on a phased basis from 26th July, 2010. The respondent continued to engage with the claimant through correspondence and wrote again on 30th July, 2010 inviting the claimant to return to work on 9th August, 2010. This letter also warned of possible disciplinary procedures if the claimant did not return to work. A medical certificate was subsequently forwarded by the claimant covering the period 6th August, 2010 to 6th September, 2010.
The claimant was asked to report back for duty on 13th January, 2011 following a medical assessment on the claimant carried out by an Occupational Health Consultant on 26th November, 2010. This report found that there was no medical reason why the claimant should not return to work.
The claimant submitted a complaint in writing to the respondent on 20th March, 2011 and was received by the respondent on 12th April 2011. The claimant was invited to return to work on 21st April, 2011 in order for the issues to be addressed.
Under cross-examination, the HR Manager confirmed that no alternate position was offered to the claimant. No written complaint was received until April, 2011. The respondent had always tried to get the claimant to raise any issues he may have had.
The Director of Services told the Tribunal he replied to a letter the claimant wrote to the County Manager dated 22nd April, 2010. The claimant maintained that the respondent had failed to address a pattern of bullying in the company. The Director of Services replied by letter dated 9th May, 2010 inviting the claimant to set out in writing the basis of any complaint. Nothing further in this regard was received until 24th September, 2010 when the claimant wrote to the Director of Services stating he had been a victim of bullying for a long time.
The Director of Services replied to the letter stating, inter alia, that the claimant had not stated who the complaint was about, the nature of the bullying and no references to any incidents. In May 2011 the Director of Services wrote to the claimant advising him that he had recommended to the County Manager that the claimant’s contract of employment be terminated.
On day two of the hearing, the Director of Services was re-called as a witness for the respondent. He indicated that the sick certificate dated 4th May 2011 was received in the County Library on 12th May, 2011. In reply as to why the disciplinary procedures were not invoked, the Director of Services indicated that, from July 2010, the respondent had engaged on numerous occasions with the claimant and the union in relation to the claimant’s return to work. Dates agreed in relation to the claimant’s return to work were not honoured. The Director of services stated that at no stage did the union indicate that the claimant should not return to work. It was the respondent’s intention that all issues would be dealt with on the claimant’s return to work. The decision to dismiss the claimant was based on the continued frustration of the employment contract by the claimant.
Summary of Claimant’s case
The claimant told the Tribunal that in and around 2009, issues arose with his Line Manager. Issues had arisen over a prolonged period of time going back as far as 2004 and the claimant wrote to the then County Manager and had attended a meeting in relation to the issues at that time in 2004.
The claimant stated that in 2010 he was asked to provide a written statement in relation to the bullying and he provided this statement. He met with the respondent’s Health and Safety Officer in relation to the issues. The claimant indicated that he identified the person responsible for the bullying in the Occupational Health Consultant’s report, which was dated 26th November, 2010. In January, 2011 the claimant explained that he received a letter from the respondent with a report back to work date of 13th January, 2011. A further date of 3rd May, 2011 was agreed but the claimant was unable to return to work that day due to a chest infection. The claimant was dismissed by letter dated 12th May, 2011.
The claimant gave evidence of loss and his efforts to mitigate his loss.
Under cross-examination, the claimant confirmed that work related issues were being addressed prior to his sick leave. What triggered his sick leave was that at meetings he felt his side was never listened to and that the issue of travel was never dealt with. After the respondent’s medical doctor recommended the claimant fit to return to work, the claimant’s stated that his own doctor told him he would not advise it and that it would be unsafe to do so. He had a fear of returning to the work place. The claimant accepted that the only complaint in his letter of September, 2010 related to the issue of travel expenses. He was not aware that the meetings with the Health and Safety Officer were treated as confidential. The claimant did not accept that the only formal complaint presented to the respondent was in late 2010. He said there were previously lots of indirect complaints. The claimant confirmed that he did agree to return to work but then got a chest infection and was not fit for work. From February to mid May, 2011 the claimant indicated that he had sinus issues. He confirmed he took part in a marathon in May, 2011 but stated that he “walked it” in just under five hours.
In reply to the Tribunal, the claimant stated that he was fearful of victimisation/harassment if he had returned to work.
Determination
After some eighteen months continuous absence due to sickness, the respondent took all reasonable steps to encourage the claimant to return to work with the continual assistance of his trade union representative. This included at least three to four occasions where dates were set down and agreed between the parties in respect of his return to work. Despite said agreement, the claimant failed to honour these agreements.
Notwithstanding the aforementioned agreements, the respondent clearly set out its position by letters dated 6th January, 2011 and 20th January, 2011. In all the circumstances, the respondent acted reasonably and the Tribunal are satisfied that the dismissal in this instance was fair and therefore the claim fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)