EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1218/2014
CLAIM(S) OF:
William Hayes (claimant)
Against
Boliden Tara Mines Limited (respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. J. O'Neill
Mr N. Dowling
heard this claim at Dublin on 19th May 2015
Representation:
Claimant(s) : Mr. Andrew King B.L instructed by Mr. Andrew Freeman, Sean Costello & Co, Solicitors,
Haliday House, 32 Arran Quay, Dublin 7
Respondent(s) : Mr Paul Rochford, Ibec, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
Summary of evidence
Respondents Case
The respondent is a mining company which primarily operates an underground lead and zinc mine. EOH, the HR manager gave evidence on behalf of the respondent. The claimant was employed by the respondent from 21st January 2001 until 30th June 2014 as a miner. The claimant was on certified sick leave from December 2009 to 30th June 2014, the date of dismissal. His duties were of a physical nature and included blasting rock, driving, carving out the face of the mine etc. The role by its nature is hazardous given the environment therefore the respondent faces increased health and safety challenges. Due to the nature of the work it is relatively common that employees get injured however the claimant had a high level of injury during the course of his employment which caused some concern for the respondent. On 10th June 2009 the claimant suffered a significant injury at work which required an extended absence. He returned to work on 24th August 2009 for approximately 8 weeks but had to take further sick leave until December 2009. The HR Manager told the Tribunal that since December 2009 the claimant was certified by his GP as unfit for full duties as a result of the June 2009 accident. A long period of certified absence followed and then in March 2011 the claimant wrote to the respondent making himself available to return to work to carry out light duties. The respondent replied on 30th March, 2011 stating that given the claimant’s current circumstances that it was not possible to offer alternative work at that point. EOH gave evidence about the respondent’s ‘alternative duty’ policy and stated that following a work place accident employees can avail of alternative duty, where available, for a period of 10 days. Thereafter, any extended course of ‘alternative duty’ is subject to review and/or decided on a case by case basis. When queried by the Tribunal as to whether ‘light duty’ was the same as ‘alternative duties’ given the terms were used interchangeably the witness seemed to think that they were the same.
EOH stated that the claimant was never certified fit to return to work on full duties by either his own GP or the company doctor. The only person that could certify him fit to return to work on some sort of long term alternative duty is the company doctor. Even if this is done EOH maintained that a vacancy must be available in this regard. He stated that he does not believe the company is under an obligation to create a role for an employee in this situation
Following assessments by the respondent’s company doctor and a number of interactions between the claimant and the respondent a meeting took place on 18th December2013. This meeting was adjourned at the request of the claimant’s union representative and a second meeting took place on 27th January 2014. At this meeting the claimant requested a return to work to perform alternative/light duties. As the claimant’s doctor had not passed him fit to resume normal duties it was agreed that he would attend a company nominated medical expert to assess the claimant’s fitness to return to work. The claimant attended Doctor Moran on 10th February, 2014 and again on 27th March, 2014. Dr Moran subsequently delivered his substantive report dated 27th March 2014. On foot of this report the respondent relied on the fact that Doctor Moran concluded that the claimant “was not fit to resume mining duties and is not fit for alternative work duties that require physical or manual handling tasks for normal shift hours”. EOH stated that there was no suitable alternative work for the claimant in these circumstances therefore there was no option but to terminate the claimant’s employment.
A meeting took place with the claimant on 1st May, 2014 and the respondent presented the findings to the claimant. A letter was issued to the claimant on 6th May, 2014 terminating his contract of employment and allowing for notice period. That letter gave the claimant the opportunity to provide further alternative medical evidence to that given by Dr Moran as to whether he was fit to return to work. It was asserted by the respondent that the claimant’s past disciplinary record was not taken into account in the claimant’s dismissal. The decision was not appealed by the claimant.
On cross examination a number of alternative roles were put to EOH that the claimant states he could have done, one in particular in the laundry room, was available concurrently to the claimant seeking such alternative work. This role was given to a different employee who EOH states was certified fit to return to work in that capacity by the regular company doctor (not Dr Moran). The claimant was never certified fit to return either to full duties or alternative duties and therefore could not be considered for such a role. Furthermore, EOH stated that he felt constrained by Dr Moran’s conclusion that the claimant was not fit for alternative roles that required physical or manual handling and it was his opinion that doing laundry was a very physical job. It was put to EOH that the claimant identified a role in the stores room while still employed with the respondent that he could have done but EOH disagreed as the claimant was not certified to do any such role.
EOH was asked to comment on the claimant’s assertion that the company doctor indicated to him in or about June/July 2012 that ‘if HR agreed’, the company doctor would certify the claimant fit for alternative duties. EOH denied any knowledge of this
The witness was also asked whether a personal injuries claim taken by the claimant against the respondent in relation to the June 2009 incident was held against him and as a result was treated differently to other employees in the search for alternative work. EOH disagreed and stated that it was not.
In relation to the meeting on 1st May 2014 the witness was asked if he had made the decision to dismiss in advance to which he replied he didn’t think so. He also confirmed that he did not warn the claimant before this meeting that he could be dismissed from his role.
Claimant’s case
The claimant confirmed his employment history with the respondent. He disagreed with EOH’s categorisation of his absence from work over the years as ‘sick leave’. He stated to the Tribunal that during the course of his employment he had a sick child at home who required his time. He feels he had told EOH about this. The claimant recounted his injury at work in June 2009 following which he was on certified sick leave until late August 2009. On his return to work he was called to a disciplinary meeting concerning his missing time and was given a final written warning. He appealed this decision but no response was received from the company. At this stage he believes the respondent knew that personal injury proceedings had issued in relation to his accident and that he would be fighting for his job. He remained in work for eight weeks but it was a significant challenge for him health wise. During that time he was doing slightly different work than before. In November 2009 he was hospitalised with an infection and was certified unfit to return to work. He was in significant pain as a result of his June 2009 injury and was attending a number of specialists in this regard. He confirmed that he did want to return to work and stated that his GP could not certify him fit to ‘go underground’, only the company doctor could. He sought light duties from EOH both by telephone in December 2010 and again by letter dated March 2011 but got no response. Furthermore, he was not seen by the company doctor for nearly a year. He felt that other employees had been facilitated with light duties for a number of months and were not bound by the ’10 days’ referred to in the company policy. In fact he was not aware of the 10 day policy at that time and felt that it was not imposed on employees.
The claimant stated that in or about June/July 2012 the company doctor told him that he would certify him fit for alternative duties if HR agreed. He stated that he believed EOH was aware of this. The claimant confirmed that he was never certified fit to return to full duties by his own GP.
In January 2014 he attended a meeting with EOH wherein the disciplinary matter raised in August 2009 was raised again with him. He stated that he had appealed that warning and following an adjournment of the meeting he produced the letter of appeal. He heard nothing further about this matter but felt it unusual that it was raised so much later. He understood that final written warning would have lapsed after a six month period according to the respondent’s handbook. Following the production of the appeal letter the claimant stated that the focus of the meeting was changed from a ‘disciplinary’ matter to a ‘medical issue’. The claimant agreed to attend Dr Moran in early 2014 and was quite surprised by his conclusions. He did not agree with the limitations Dr Moran placed on him working with the respondent, in particular that he was physically restricted in doing surface work.
He was called to a meeting on 1st May 2014 with his union representative. He stated that he was told immediately that he was dismissed and the meeting lasted approximately 3 minutes.
On cross examination the claimant confirmed that he did not seek an alternative opinion other than Dr. Morans in relation to his capacity to return to work. He confirmed that he did not appeal the decision to dismiss on legal advice. He confirmed that he remains on an invalidity pension from the date of dismissal to the date of the hearing and has not yet been certified to return to work but hopes to be approved for partial capacity benefit imminently.
The claimant’s Trade Union official told the Tribunal that while the respondent may try to re-deploy staff , no formal agreement exists with the company. He was not aware of the ’10 day’ alternative duty policy prior to this case and confirmed that it had not been implemented during his time with the respondent. The Trade Union Official stated that at the meeting on 27th January 2014, the respondent did not support a return to work and the claimant was not invited to discuss alternate jobs. He felt that the respondent’s attitude was very restricted.
Determination
The Tribunal carefully considered the evidence in this case. It is the claimant’s case that he was unfairly dismissed following an extended period of certified sick leave resulting from an accident at work in June 2009. It was submitted on his behalf, inter alia, that he could have returned to work in alternative duties and that other employees were facilitated in this regard on foot of custom and practice. The issue of alternative and/or light duties for the claimant was never adequately considered by the respondent and/or that the respondent’s decision to dismiss was influenced by separate personal injury proceedings issued by the claimant against the company and the claimant relied upon section 6(2) of the Unfair Dismissals Act 1977 in this regard. It was submitted by the respondent that the claimant was never certified fit to return to work either on full duties or on alternative duties therefore his employment could not continue. Even if he had been certified fit for alternative duties there was no suitable vacancy open for him.
Ultimately the Tribunal has to decide whether or not the decision to dismiss the claimant was fair and reasonable in all of the circumstances. A dismissal is fair only if it arises for one of the reasons set out in Section 6(4) of the Unfair Dismissals Act 1977 which provides a follows:
Without prejudice to the generality of the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) The conduct of the employee
(c) The redundancy of the employee, and
(d) The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
In this case the Tribunal must consider the nature of the work involved in the mine which is demanding physically and mentally. In this regard the Tribunal accepts that advancing the face of the mine is physical and hazardous in its nature. Most of the roles within the company involved going down into the mine which the claimant would not or could not do. Evidence was given that there was very little work available above ground that was not somewhat physical in nature and/or required some work underground.
Much of the argument therefore centred on the issue of light duty and/or alternative duty and whether the claimant was capable to return to work in a role other than his pre-accident role. The evidence in relation to light duty and alternative duty seemed contradictory. On one hand EOH was saying that ‘light duty’ was limited to 10 days but on the other hand it appears that the company doctor could certify an employee fit to return to work in ‘alternative duties’ on a long-term basis. That was predicated on there being a vacancy available in this regard. EOH was not consistent in his evidence in this regard but for the purpose of this claim the Tribunal takes it to mean a long term role other than his original role. In the search for alternative roles the claimant could have performed it is not clear to the Tribunal whether this was a retrospective exercise by EOH for the purposes of this claim or whether this was actually considered at the relevant time. In any event the Tribunal must accept that the medical evidence shows that the claimant was never certified fit to return to either on full duties or on light/alternative duties between December 2009 and June 2014. Ultimately the respondent relied upon the reports of Dr Moran in relation to the claimant and the claimant was given the opportunity to challenge Dr. Moran’s assessment but chose not to. Furthermore, it was inconsistent that the claimant was, on the one hand seeking alternative/light duties from the respondent but at the same time had his own GP medically assessed him on the basis of whether or not he could return to work for full duties. It is accepted however, that only the company doctor could formally certify him fit to return on alternative duties. It is also accepted that there is no obligation on an employer to create a role in terms of alternative work to facilitate an employee’s return to work.
While it has to be said that the procedure adopted in terminating the claimant’s employment was unusual it does not render the dismissal unfair in the above circumstances. Furthermore, the claimant did not appeal this decision. The Tribunal heard evidence concerning the claimants separate High Court personal injury proceedings but the evidence presented during the course of the hearing did not adequately support the claim that the claimant was unfairly dismissed pursuant to Section 6(2) of the Unfair Dismissals Act 1977.
Having assessed the relevant evidence the Tribunal believes that although the respondent did not act perfectly in this case, the ultimate decision to dismiss was reasonable in the circumstances, therefore the Tribunal does not believe that the claimant was unfairly dismissed and accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)