EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Anne Ellis – claimant UD1203/2013
against
UPS (United Parcel Services of Ireland Limited) – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O’Leary BL
Members: Mr T. O’Grady
Ms N. Greene
heard this claim at Dublin on 24th November 2014 and 19th & 20th January 2015
Representation:
Claimant: Ms Lauren Tennyson BL instructed by Mr Brendan Byrne of
Byrne & Company Solicitors, 11 Malahide Road, Swords, Co. Dublin
Respondent: Mr David Farrell of IBEC,
Confederation House, 84 – 86 Lower Baggot Street, Dublin 2
The determination of the Tribunal is as follows:
The fact of dismissal was in dispute and therefore the claimant went into evidence first.
Claimant’s Case
The claimant gave evidence. She commenced working for the respondent on 2 October 2006. She worked in the office and loved her job. She worked 30 hours a week.
The claimant’s son became unwell with depression. He phoned her at work on 21 February 2012 to say he could not take it anymore. She rushed home and found him barely alive. He was taken to hospital.
Two days later the claimant returned to work. Her son remained very unwell. Visiting hours in the high dependency ward treating him were 5 – 7pm. The claimant was met by the HR officer, CC, and the operations manager for a return to work interview and was given permission to leave work at 5pm each day to visit her son. She came to work early so that she worked the 6 hours required. She was due to meet the medical team treating her son on Thursday 1 March 2012.
The next day the operations manager called her into the office and told her that the company would not allow her to leave work early to visit her son. He further said, ‘We all have kids and we all have to come to work. There will be no special treatment for you.’ He spoke to her with clenched fists and in a very aggressive tone. The claimant did not raise any issue relating to her colleague. The claimant was in shock. She could not believe an employee would be spoken to like this especially in light of the stress she was under. Her only child was under lock-up and undergoing tests. What had happened to her son nearly killed her.
She phoned the HR supervisor, JD, and was told to go home. She met CC in the car park but was too upset to say much merely requesting that CC speak to JD. She fell apart after what had happened to her on the job. She felt drained and unwell. Her doctor came to the house and certified her unfit to work. For a period of about 9 months her son was in and out of hospital and she struggled to deal with this. She continued to be certified unfit to work. Her husband phoned the respondent and handed in the doctor’s notes. The claimant did speak to the HR officer CC and said she would not be in that she was grieving for her son. She spoke to CC on a number of occasions on the phone but she was non-functional for much of the time and her husband dealt with the respondent for her.
In September 2012 the claimant was referred to a company doctor. He reported that she was unfit to work but was motivated to return to work. He suggested a further assessment in 4 months’ time with a view to a phased return to work. The second review never happened.
The claimant received letters asking her to attend a meeting with the respondent. She did not ignore any correspondence. Each time she forwarded a doctor’s cert saying she was unfit to attend. She received 2 letters every week for a whole year one by registered post and a copy by ordinary post. Every letter was acknowledged.
Despite the claimant being certified unfit to attend meetings with the respondent, the acting HR supervisor wrote to her on 19 March 2013 saying that the company took the reasonable view that she had resigned from her position. The claimant appealed this decision. She was invited to an appeal meeting on 30 March 2013. The day before the scheduled meeting the HR manager wrote to the claimant that the company’s opinion that she had resigned stands. The claimant’s legal representative faxed a letter to the HR manager on the day of the proposed appeal meeting to say she was unable to attend on medical grounds.
The claimant said that she never said that she could not work again with the operations manager but she did feel it would be hard to work with someone who treated her and spoke to her the way he had. She did not raise a grievance because she spoke to HR about it and she always intended to return to work.
The claimant is now fit to work. She established loss for the Tribunal.
The claimant’s husband gave evidence. Their son was very sick and was in hospital for a long time. This had a profound effect on the claimant.
His wife phoned him on 2 March 2012 so upset she could barely speak and asking him to collect her. He dropped everything and went to her. She said that the operations manager had abused her. The operations manager had thumped the table and said all families have problems. She was badly affected, suffered from panic attacks and had difficulty eating. She ended up in hospital herself from the stress of their son and her job.
He dealt with the letters sent by the respondent. Theirs is a 3 person household and at this time he was the only one dealing with things. He collected medical certs from the doctor, whose office is close to his own. At first he collected the medical certs every week but after a time he collected them every 2 weeks. He also spoke to CC a few times. He told her the claimant was not well and was unfit, that was the conversation. He spoke to the operations manager 4 or 5 times to say the claimant was not well and would not be back for a while. When he delivered the medical certs he mostly left them in an envelope at reception.
He did not confront the operations manager about his treatment of the claimant. He could not have kept his cool in a meeting with someone who thumped the table when someone else was upset.
Respondent’s Case
The HR supervisor, JD, gave evidence. He has worked for the respondent for 19 years and he knew the claimant.
He had a brief encounter with the claimant on 2 March 2012. He was in the office and she came in. She said, ‘I have to go. I have to go’. Then she left. He made no attempt to stop her as he could not in that situation.
The HR supervisor then phoned the operations manager and asked what happened. The operations manager replied, does she have to go? We are short-staffed.
The claimant did not mention the operations manager. He phoned the operations manager because he was her manager and would need to know that she had gone. Clearly something had happened and the claimant was in a bad condition but he did not offer her any assistance. He attributed her upset to her son’s condition.
The operations manager gave evidence. He has worked for the respondent for 19 years. He has made a career there. He started as a driver and then worked as a driver trainer. He is now the operations manager for the Dublin area. The operation only closes for one hour in 24 hours. They deliver 8,500 packages daily.
He had a good relationship with the claimant. He spoke to her every day at work. There were no issues with her work.
He heard that her son was in hospital. When the claimant returned to work he asked CC to sit in on the standard return to work interview because of the sensitivity of the situation. The claimant said that she needed to leave work at 5.00pm and the operations manager said ok. The claimant was meeting the specialist treating her son on the following Thursday and he expected her to update him on the Friday.
The office staff members walk past the operations manager’s desk. He saw the claimant come in on the Friday. She logged in and came and told him that her son was unwell and his treatment could last 6 months. When she asked about her hours he said that she could not leave early for 6 months but to continue as you are for now.
The operations manager is shocked and angered by the suggestion that he clenched his fists and was angry towards the claimant. The claimant had said to him that her colleague was trying to undermine her. He advised her to rise above it. The meeting ended then because the operations manager’s wife phoned from the car park to collect him to take their daughter to an appointment in Temple Street. The claimant was not upset when the meeting ended. There was no one else present at this meeting. It did not last long. He was under pressure that day. The Claimant was at work for 28 minutes that day. When JD phoned him to say the claimant had left he assumed it was because of her son. He never spoke to the claimant again and neither did he speak to her husband. He did not write to the claimant.
The operations manager accepted that the claimant sent in medical certs but the respondent needed to know what was going on in the background.
The HR director, LJ, gave evidence. She has worked for the respondent for 18 years. She knew the claimant was on long term sick leave. An employee is considered to be on long term sick leave after an absence of 2 weeks. Long term sick leave needs to be managed from the employee perspective and from the business perspective. CC kept her informed.
She was aware that the acting HR supervisor made the decision to view the claimant’s failure to engage with the respondent as a resignation. After he made that decision he informed her. Ten days later the claimant’s solicitor appealed the decision to the operations manager. He does not have the expertise to deal with legal letter and so he referred the matter to her. She felt that she was an appropriate person to hear the appeal.
The HR director wrote to the claimant on 18 April 2013 asking that she attend a meeting to discuss ‘this situation’ on 30 April 2013. She picked that date because it suited her diary. She did not forward a copy of the company Handbook to the claimant. She was aware of the many fruitless attempts to get the claimant to engage with the company. She wanted the claimant to contact her so that she could arrange a venue for the proposed meeting. She did think it appropriate to ask an employee who was on certified sick leave to attend a meeting.
The HR director did not respond to the letter dated 22 April 2013 to the operations manager from the claimant’s representative because she thought that it had crossed her letter. When she had not heard from the claimant she wrote to her on 29 April 2013 saying ‘the Company has been left with no alternative but to form the reasonable opinion that your resignation from the Company stands.’ On 30 April 2013 the claimant’s representative faxed a letter saying the claimant was unable to attend a meeting that day on medical grounds. In response she forwarded a copy of her letter of 29 April 2013. There was no response to that letter. She was surprised that there was no request to reschedule the meeting.
The HR director accepted that the Company Handbook does not require an employee on sick leave to meet with HR.
The HR officer, CC, gave evidence. She has worked for the respondent for 8 years. She met the claimant with the operations manager on 27 February 2012 when she returned to work.
The HR officer met the claimant in the car park on 2 March 2012. The HR officer was coming up the car park and the claimant was going down. She asked the claimant if she was ok and the claimant replied that she would phone her. When she went inside the operations manager was not in the office. The claimant did phone her but not that day. The claimant was upset but she did not say anything about the operations manager speaking aggressively to her. If the claimant had made an allegation concerning the operations manager she would have taken action.
She wrote to the claimant on 16 April 2012 asking that she attend the company doctor on 24 April 2012. The claimant’s husband phoned the HR officer to say that she was unable to attend. The respondent incurred a cancellation fee.
On 9 May 2012 she again wrote to the claimant asking her to attend the company doctor on 18 May 2012. Neither the claimant nor her husband contacted the HR officer. The company doctor’s office contacted her when the claimant did not attend. The claimant was in hospital at that time.
The medical appointment was rescheduled for 10 July 2012 Again the claimant did not attend and again the respondent incurred a cancellation fee.
She wrote to the claimant on 8 August 2012 saying that if she did not make contact she would be presumed to have abandoned her employment. In response the claimant wrote her a hand-written letter. This letter was the first acknowledgement from the claimant.
The claimant’s union rep visited the HR officer and asked that the claimant be referred to a company doctor closer to her home. This was done and the claimant attended the doctor. The doctor’s report was forwarded to the HR officer and she in turn forwarded it to the claimant. The doctor reported that the claimant was motivated to return to work but was not fit at that time. He went on to recommend that she be reviewed in 10 to 12 weeks.
The HR officer wrote to the claimant asking that she meet with her on 13 December 2012 to discuss her absence from work. She accepted that this absence management process she was using is not included in the employee handbook. She did agree that the claimant’s absence was covered by medical certs from hr GP.
The HR officer did consider that a pub was a suitable venue in which to discuss the claimant’s medical report. When the claimant had not contacted her by 28 January 2013 she escalated the matter by referring it to the acting HR supervisor.
The acting HR supervisor gave evidence. He wrote to the claimant on 31 January 2013 saying that the company had been requesting a meeting with her since 17 July 2012. If she failed to contact him by 7 February 2013 he would view it as a deliberate attempt to frustrate the absence management process. He considered it normal practice to meet an employee on sick leave even where there was no expectation that she would return to work immediately. She did not reply.
He wrote to the claimant on 19 March 2013 to say – the submission of medical certificates does not constitute proper and meaningful engagement with the Company. He had formed the view that she had resigned her position. As a good will gesture or a last chance saloon he gave her the opportunity to appeal his decision. It was not a dismissal dressed up as a resignation. He decided not to seek a further review of the claimant by the company doctor, as the doctor recommended, because of her refusal to engage. She was frustrating the process. The process is not written into the company Handbook.
Determination
The Tribunal carefully considered the evidence adduced in this case. It is common case that the claimant experienced a trauma in her personal life. There was a conflict of evidence concerning what occurred between the claimant and the operations manager on the claimant’s last day at work with the respondent. However as this event is not relevant to the termination of the claimant’s employment it is unnecessary for the Tribunal to form a view on what actually happened in the course of that encounter.
The claimant was certified as unfit to work by her GP and the respondent agrees that she submitted medical certificates covering the period of her absence. She also attended the company doctor and he too found her unfit to work.
The respondent was aware from the beginning of her sick leave that the claimant had psychological issues yet they issued letters to the claimant with a frequency that bordered on harassment. Despite knowing that the claimant had a difficulty with attending a meeting the respondent unrelentingly pressed her to come to a meeting.
The respondent when in possession of the report of the company doctor failed to follow his recommendation that the claimant be reviewed after a period and also failed to seek his advice in dealing with the claimant.
The Tribunal finds that at no stage did the claimant resign her position. Rather the respondent implemented a disciplinary process under the guise of considering her to have resigned. The Tribunal also finds that the respondent erred in applying an absence management plan without having any such plan in place.
The Tribunal finds that in all the circumstances the claimant was unfairly dismissed. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €18,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)