UD447/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Patrick Mahon                                                                                             UD447/2014

-        claimant

against

Eircom Limited

-        respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Mr R. Maguire, B.L.

Members:       Mr. N. Ormond

                        Mr J. Flannery

heard this claim at Tullamore on 22 July 2014, 18 November 2014, 19 November 2014,

                                                     22 January 2015, and 23 January 2015.

Representation:

Claimant:         In person

Respondent:     Mr. Tom Mallon, B.L., instructed by Arthur Cox Solicitors, Earlsfort Centre,

                        Earlsfort Terrace, Dublin 2.

Below is a summary of the relevant facts and allegations based on the parties’ submissions and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written documents, and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Tribunal has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the proceedings, the Tribunal only refers to the submissions and evidence it considers necessary to explain its reasoning.

Background

The claimant commenced employment with the respondent company in 1976. In April 2012 Ms. AMS of the respondent company met with the claimant for an appeal hearing in respect of a disciplinary issue which had arisen. During the meeting AMS became concerned for the welfare of the claimant. She was concerned about his well-being and ability to deal with matters. AMS adjourned the appeal and the company sought help from the Chief Medical Officer (CMO), and appointments were arranged for the claimant to attend the CMO. The CMO recommended compulsory sick leave pending the claimant’s attendance at a medical assessment on 12 September 2012. Between September and October he was requested not to attend work, not to contact his line manager, and not to drive the company van. The respondent had obligations and the claimant was requested to return the company vehicle which he refused to do resulting in the respondent having to get assistance from an external company to retrieve the vehicle.

Subsequently the respondent conducted a process to deal with the claimant’s refusal to return the vehicle, refusal to follow instructions, and his inappropriate behaviour when the vehicle was being removed. This process led to the claimant’s dismissal from his employment. The claimant was written to and advised of the appeal options. The employee relations committee recommended to the board that he should be dismissed and the board agreed.

Summary of Evidence

The Tribunal heard evidence from AMS. She was the person appointed to conduct an appeal hearing of the recommended sanction of dismissal of the claimant following an investigation into an allegation of bullying and harassment made against the claimant. On 1 May 2012 she met with the claimant and had concerns arising from this meeting. During this meeting she became concerned in relation to the claimant’s well-being. He told her that he had suffered from depression and stress and had attended a mental health centre for 2 weeks.

The witness gave evidence that the claimant informed her that he would go on hunger strike and bring his issues into the public domain. She was concerned for his state of mind and requested that he attend the company doctor (CMO) for a medical assessment. She paused the appeals process to allow for the claimant to be referred to the CMO. She was subsequently made aware that the claimant was placed on compulsory sick leave. She finalised the matter one year later and arising from the process she altered the sanction of dismissal to demotion.

During cross examination AMS confirmed that the claimant provided her with a script which he read from during the appeal hearing in May 2012. She denied sending information in relation to the claimant to two separate doctors and did not receive any phone calls to influence her decision in respect of his appeal. She confirmed that she was not aware of any personal data in respect of the claimant being disclosed to a 3^rd party. She also was not aware of the claimant being told repeatedly not to attend work.

AMS explained that her role was to hear the claimant’s appeal and to make a decision on the recommendation of dismissal. As a result of the material in the claimant’s submission she became concerned. She was not equipped to make a decision and forwarded her concerns to Human Resources, who then referred the issue to the CMO. Ultimately, the claimant’s appeal was successful and AMS revised the sanction to demotion.

The Head of Employee Relations, (BW) gave evidence that he attended a number of hearings at the Labour Relations Commission (LRC) and the Labour Court in an effort to find a resolution to a dispute which had arisen between the parties. He was the company’s chief representative at the hearings which resulted in an agreement being reached at the LRC between the company and the claimant. The dispute had caused the claimant to be absent from work and he had been referred by the company to the CMO. The CMO deemed the claimant fit to return to work in June 2013 after consulting with the claimant’s GP and both parties had signed off on the agreement dated 17 June 2013 which stated that the claimant should be re-instated on full pay with effect from 11 June 2013. The company restored the claimant to full pay in accordance with the agreement and were working on a process to return the claimant to work when he withdrew from the process and began picketing the company’s HQ on 1 July 2013. As a result of this action the claimant was suspended from work without pay.

(BW) told the Tribunal that his first involvement in the matter was in April 2013. While he had a brief knowledge of the history of events prior to that date he had no in depth knowledge of the events leading up to the claimant being placed on compulsory sick leave. He was not involved in that process and did not know who had placed the claimant on compulsory sick leave. He gave evidence that the only conversation he had with the CMO was when the CMO confirmed that the claimant was fit to return to work. He accepted this information and in line with the LRC agreement restored the claimant to the payroll. The claimant then withdrew from the process said the witness.

The head of the Fixed Access Build Team (PO’T) gave evidence that teams are divided into geographical areas. The claimant was a member of his team working around the Mullingar, Navan, Enfield areas. He had the use of a company van which he was allowed bring home at night. If employees who had the use of a company van were absent for a pro-longed period (more than 3 to 4 weeks) the vehicle would be returned and re-assigned to a different employee in the fleet.

In July 2011 the claimant approached him and explained that he was having some workplace difficulties and sought to be re-located to the Tullamore area. The witness was in a position to assist him in re-locating but the claimant declined the offer as the work was confined to a particular area of work which was not suitable to the claimant. He met with the claimant again in November 2011 when the claimant raised further issues and provided him with documentation. On checking the documentation he discovered that it related to a confidential agreement reached in the High Court. He returned the documentation to the claimant as he did not believe it was appropriate for him to have the documentation. The claimant informed him that it related to allegations of bullying made against him (the claimant) which was the matter that was handled by his colleague (AMS) in April 2012.

He gave further evidence that in September 2012 he was informed by the Human Resources department that the claimant was being placed on compulsory sick leave. As a result of this he met with the claimant on 11 September 2012 and issued him with a letter confirming that he was being placed on compulsory sick leave. This letter stated inter alia that an appointment with the CMO was arranged for 19 September 2012 for the purpose of conducting a medical assessment. The services of the employee assistance officer and a consultant psychologist were also offered to the claimant. He also gave the claimant an instruction to return the company van. He gave evidence that the claimant read from a prepared statement stating that he was not going on sick leave and was going to attend work. He stated that he would be going on hunger strike and that he would deal with the matter at a time and place of his choosing. He stated that he would not be returning the company van and if he (the witness) came to collect the van he better bring somebody with him. The claimant’s actions were aggressive and confrontational said the witness.

The witness subsequently witnessed the claimant driving the company van in the Tullamore area on 14 September 2012 and he then wrote to the claimant on 19 September 2012 where inter alia he sought to arrange a time and place to collect the company van. In that regard he requested the claimant to contact him by 5pm on 20 September 2012 to arrange for this collection. The claimant did not respond to this request. A number of further unsuccessful attempts were made to collect the vehicle and on 4 October 2012 the witness saw the vehicle parked. He approached the claimant who was sitting in the vehicle and requested the van. He gave evidence that the claimant replied “No, get out of my way I’m going to work” and reversed the van and drove away.

As it was clear to him that the claimant was not going to return the van and he made arrangements with a professional recovery vehicle company to recover the van. He made the Gardai aware of this position as he formed the view based on the claimant’s attitude there may be a potential for a breach of the peace in their attempts to recover the vehicle. The vehicle was subsequently recovered on 5 October 2012 in Mullingar by the recovery company and the events of this operation were outlined in detail by the witness. The Gardai attended the scene and had to provide assistance in the recovery of the vehicle. Personal belongings from the claimant which were contained in the vehicle were subsequently returned to him.

The witness gave evidence that his next involvement in the matter was on 2 July 2013 when he wrote to the claimant requesting him to immediately desist from the unlawful picket that he had placed on the company’s HQ. He also requested that the claimant provide a written explanation within 7 days as to why he refused management instructions to return the company vehicle in September, October 2012. He received a reply which stated that “previous correspondence refers; my position remains unchanged and in line with the process”. As this reply failed to provide a satisfactory explanation he wrote him again by way of letter dated 15 July 2013 again seeking an explanation and with an offer to meet with the claimant. He received an identical response to the earlier response. As he had received no acceptable explanation he concluded that the claimant’s actions constituted gross misconduct as defined in the company’s disciplinary policy and recommended that the claimant be dismissed and his contract of employment be terminated. He conveyed this decision to the claimant by way of letter dated 26 August 2013 also affording him the opportunity to appeal the decision to (AC), Human Resources Director within 14 working days. He had no further involvement in the matter.

(AC) gave evidence that she was appointed to conduct the appeals process into (PO’T’s) recommendation. Her role was very clear which was to deal with the claimant’s refusal to return the company vehicle. She had no role in the processes before the LRC or the Labour Court. The claimant had sent an e-mail on 1 September 2013 to (AMS) and (PO’T) which she accepted as notification of his intention to appeal (PO’T’S) recommendation. She wrote to the claimant by way of letters dated 4 September 2013 and 12 September 2013 stating that irrespective of any other internal processes that may be ongoing he should address his appeal of (POT’S) recommendation to her by 24 September 2013. She confirmed to him that the appeals procedure does not lie with the Labour Court or any other external third party as his appeal would be dealt with internally as outlined in the company discipline code. The claimant sent a number of e-mails dated 12 and 13 September 2013 to which she replied by way of letter dated 16 September 2013 again confirming that he must set out in writing the grounds upon he was appealing (PO’T’s) recommendation. She informed him in the said letter that it was immaterial that he may be involved in other unrelated internal processes.

A further series of correspondence was exchanged between the parties and ultimately she wrote to the claimant by way of letter dated 8 October 2013 requesting that he meet with her on 22 October 2013 to hear the grounds of his appeal. The claimant did not attend this meeting and by way of letter dated 10 January 2014 she wrote to the claimant confirming that the recommendation of (PO’T) stands. She afforded the claimant a final opportunity to appeal her decision by 20 January 2014 including details of the person to which the appeal should be addressed. No appeal was received and the recommendation of termination of his employment was presented to the Employee Relations Committee (Remuneration Committee) in accordance with the discipline code.

The committee considered the matter and recommended dismissal to the Board of Directors who resolved that the claimant’s employment be terminated with immediate effect. This decision was conveyed to the claimant by way of letter dated 19 March 2014 from the Group HR director.

The services operations manager (NR) gave evidence that following an interview process the claimant was appointed customer team manager in 2001 and became part of his team. The witness had no role in that interview process. The claimant remained part of the team until 2003 and as such was subject to a bonus structure which was in place. The Tribunal heard evidence that the claimant consistently scored highly in his key performance indicators, his targets were achieved and he received bonuses during this period of employment.

(JY) gave evidence that he has worked for the respondent for 35 years. He was present with the claimant in Mullingar on 5 October 2012. He witnessed a person in the claimant’s van and thought that he was trying to steal the van. He witnessed the claimant then going to his van and struggling with the person. The Gardai and a low loader recovery vehicle then arrived at the scene and the claimant’s van was taken away. The incident lasted for 5 to 7 minutes. He was never contacted by the respondent in relation to the matter and his manager never discussed it with him.

The Tribunal heard evidence that the claimant and the respondent had been involved in a dispute which concluded with a High Court agreement dated 8 December 2009. The claimant gave evidence that the respondent subsequently breached the terms of this agreement and matters were then referred to the LRC and the Labour Court. The claimant gave evidence that he attended a meeting with AMS for the respondent company in May 2012. This was a perfectly normal meeting and he was in perfect health. He told the Tribunal that AMS’s evidence to the Tribunal regarding her concerns about his well-being were lies as he was in perfect health. He nevertheless attended a scheduled appointment with the CMO on 25 May 2012 but declined to allow the CMO examine him. This was in line with the respondent’s procedures which provided for him to consent for an occupational health assessment, the claimant said.

He continued to attend his workplace carrying out his duties and was subsequently requested to attend for a further medical appointment with the CMO on 15 August 2012. He gave evidence that the CMO was basing her opinion that he was unfit for work on a report from his GP dated from 2006 when he had been suffering from stress. When she discovered this she told him that she would contact the company and inform them of this. He gave evidence that she told him that he was fit for work, she wished him luck and informed him that she would be informing the respondent of this. He had two reports from his GPs which confirmed his fitness for work both of which were opened to the Tribunal and as far as he was concerned he was fit for work. He did not accept that he should be placed on compulsory sick leave and continued to report for work.

By way of letter dated 11 September 2012 he was placed on compulsory sick leave by the respondent and a further appointment was arranged with the CMO for 19 September 2012. By way of letter dated 20 September 2012 he informed the company that he had provided two medical certificates confirming his fitness for work and urging the company to participate in an LRC recommendation dated 31 July 2012. He then received a further letter dated 28 September 2012 requesting him to attend for a rescheduled appointment with the CMO on 4 October 2012. He replied to this letter stating inter alia that the company had no grounds for placing him on compulsory sick leave and he continued to report for work as normal again urging the company to participate in the LRC recommendation. He did not attend the appointment with the CMO on 4 October 2012 and a further appointment was arranged for 2 November 2012 which he did not attend. A further substantial amount of documentation was exchanged between the parties including a letter dated 26 February 2013 from the company requesting the claimant to attend an appointment with the company’s new CMO on 7 March 2013 followed by a further proposed appointment for 22 April 2013. This appointment did not proceed.

An LRC agreement between the parties was reached on 17 June 2013 whereby on a withoutprejudice basis, on foot of a letter from the claimant’s GP dated 11 June 2013 the company will reinstate the claimant on full pay effective from 11 June 2013 subject only to the CMO verifying the contents of the claimant’s GP’s letter dated 11 June 2013 for the purpose of making arrangements for the claimant’s attendance at work.By way of correspondence dated 26 June 2013 the claimant sought an immediate date for his attendance at work. As this was not forthcoming the claimant placed a picket on the company’s HQ on 1 July 2013. By way of letter dated 2 July 2013 he was instructed to immediately desist from his unlawful picket and to provide a written explanation as to why he had refused a number of management instructions to return a company vehicle in September/October 2012. The matter subsequently progressed through the company’s disciplinary procedures ultimately resulting in the claimant’s dismissal in March 2014.

On the 5^th day of the hearing the Tribunal members decided that they had heard sufficient direct evidence in relation to the case and that despite being given leeway in relation to his evidence and submissions, the claimant was not adducing relevant information. The Tribunal requested the claimant to make himself available for cross examination by counsel for the respondent and informed the parties that closing submissions could be made by the parties following the cross examination. The claimant refused to allow himself to be cross examined as he stated that he had only given 20% of his direct evidence. The division then heard closing submissions and was informed by the claimant that he has not made any efforts to secure alternative employment as he is available for work with the respondent company. He is seeking re-instatement and does not want the Tribunal to consider any remedy of compensation.

Determination

The claimant presented to the Tribunal as an intelligent man but with sporadic bouts of rude behaviour and ill temper. He was given considerable leeway by the Tribunal. He was allowed extensive cross-examination concerning matters that were not related by him to the case before the Tribunal. On the fifth day of the hearing, when the claimant refused to present relevant evidence despite being repeatedly being asked by the Tribunal to do so, the Tribunal stated that it had heard enough evidence and presented the points that it had garnered from each side’s case to the parties to allow them to respond. The Tribunal asked that the claimant would answer questions on cross-examination. He refused to allow himself be cross examined and said he would not present other witnesses as he was not allowed to finish his testimony. The Tribunal then allowed each side to make closing submissions.

Given that the claimant refused to allow himself to be cross-examined, the Tribunal would be entitled to not consider the evidence put forward by him under oath, as the respondent was not afforded an opportunity to challenge that evidence. However, whether that evidence is considered or not, it does not alter the decision of the Tribunal.

The Tribunal finds that in all the circumstances of the case the dismissal was fair.

The respondent put forward the case that the dismissal was the result of the failure by the claimant to follow reasonable management instructions, in particular in relation to the return of the company vehicle when he was on compulsory sick leave. In turn, the claimant contended that he was not validly on sick leave on two bases, namely that there was an agreement that all issues in relation to his illness were resolved pursuant to a 2009 agreement between the parties and, secondly, that the claimant was not in fact sick and that this was evidenced by the actions of the CMO in 2012, and two GPs at the time. The claimant also focussed at length on the fact that an out-of-date report was forwarded by his GP to the CMO when requested in 2012, and that therefore the CMO’s opinion (if there was an opinion of ill-health) was not properly formed.

The Tribunal has examined all of the relevant evidence adduced. The Tribunal finds the evidence of AMS, who conducted the appeal hearing in May 2012, compelling. The Tribunal believes that she genuinely believed that the claimant was unwell and acted appropriately in such circumstances. The Tribunal rejects any suggestion or submission that she was not motivated by such concern and was motivated by an ulterior motive in reporting the claimant’s behaviour.

The Tribunal notes that on 5 July 2012, the claimant’s GP forwarded a medical report outlining a history of “symptoms consistent with clinical depression” but that this was dated 28 April 2006. The CMO subsequently realised that the report was not contemporary. Notwithstanding this, in her letter to the respondent dated 22 August 2012, she confirmed as follows:

“I do consider that, in my opinion, it would appear appropriate for you to proceed with the action of placing Mr. Mahon on compulsory sick leave in view of the company concerns regarding his health and safety in the workplace and in view of the fact that I have not been able to carry out an assessment of him as he has refused to consent to be assessed which you note is outlined in the company sickness absence policy.”

That compulsory sick leave policy was accepted by the claimant to state, at 1.1(c):

“Where the employee’s behaviour gives serious cause for concern or, in the opinion of the line manager, the employee is a danger to him/herself or his/her fellow employees, the employee should be placed on compulsory sick leave. Arrangements should also be made to have him/her medically examined by the Company Medical Officer at the earliest possible date. These cases should be given priority status.”

The Tribunal does not accept that any previous agreement between the parties meant that the respondent was not able to deal with new concerns about the health and well-being of the claimant as presented in the meeting of 1 May 2012, both orally and in writing.

The policy of the company indicates that the decision to place someone on compulsory sick leave is a management decision of the company. The claimant was entitled to refuse to be examined by the CMO as he did. However, that entitlement does not mean that such a refusal will be without consequence. The refusal by the claimant meant that he was not able to be examined by the CMO and was duly put on sick leave pursuant to his contract of employment in September 2012. He was facilitated in relation to appointments with the CMO and if he had attended and allowed himself to be examined, he may have been certified as fit to work. He did not do so, and he remained on sick leave until June 2013. The respondent was entitled to require examination of the claimant by the company medical practitioner, and was not unreasonable in not accepting the certificates of other doctors attended by the claimant.

As such, it was reasonable for the respondent to require that the claimant return the company vehicle of the respondent while on compulsory sick leave. The Tribunal does not accept the submission that because the demand for the return of the vehicle was made by a superior other than the immediate manager of the claimant, it was therefore not a valid instruction on behalf of the respondent.

In the circumstances, the Tribunal finds that the repeated refusal of the claimant to follow reasonable instructions of management and in particular to refuse to return the company vehicle was a fundamental breach of the contract of employment by the claimant. In this regard, the Tribunal notes that the claimant was continuing to present at sites though he should not have done so as he knew the respondent considered him on compulsory sick leave.

Therefore the Tribunal finds that the claimant was fairly dismissed. He was afforded due process in relation to the sanction imposed and was facilitated on every occasion by the respondent.

Therefore the claim fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)