UD1503/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                         CASE NO.

Liam Rose

- claimant                                                                                                          UD1503/2012

against

Mayo County Council

 - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Dr. A.M.  Courell B.L.

Members:     Mr. D.  Morrison

                     Mr T.  Gill

heard this claim at Castlebar on 16th May 2014 and 2nd September 2014

Representation:

Claimant: Mr Eoin Garavan BL instructed by James Hanley, Solicitor, Westport  Co Mayo              

Respondent: Mr Don Culliton, Local Government Management Services Agency,

                     Local Government House, 35-39 Ushers Quay, Dublin 8

Respondent’s case:

The claimant was employed by the respondent County Council from March 2005 as a water waste inspector. His contract of employment stated that the respondent may assign him to various locations as required from time to time and he will reside in the area in which his duties are to be performed or within a reasonable distance thereof. 

The Tribunal heard evidence from the acting personnel officer for the County Council that a decision was taken to transfer the claimant from his position as water waste inspector in Castlebar to a water treatment plant in Achill. A vacancy had arisen in the Achill plant and it was the view of the Council that this was an essential vacancy that had to be filled. The claimant was instructed to take up his position in Achill on 12 September 2011. The claimant did not take up the position in Achill and was subsequently absent from the workplace on medical grounds. It was accepted by the Council that the position in Achill would involve the claimant working with chemicals and would necessitate him wearing a breathing apparatus. It was made known to the Council that the claimant had a difficulty working in such proposed working conditions and accordingly the claimant was referred to the Council’s occupational health physician for a medical assessment.

The Tribunal heard evidence from the physician that she carried out a medical assessment on 22 November 2011. She formed the opinion that the claimant was unsuitable for the proposed position in Achill as he had a fear of working with chemicals and wearing a breathing apparatus in confined spaces. She provided her report to the Council a copy of which was opened to the Tribunal. She accepted that the claimant had worked in confined spaces such as manholes previously and she accepted that he could have returned to his previous job.

The Tribunal heard further evidence that the claimant subsequently stated that he was prepared to accept the position in Achill and would participate in the necessary training required for the position. The council reviewed the matter and took the decision not to assign the claimant to the Achill position. The acting personnel officer gave evidence that it would have been irresponsible for the council from a health & safety perspective to place the claimant in such a position or return him to his previous position as a water leaks inspector (which the claimant had requested) given that the claimant had an issue working in confined spaces. It is the case that the claimant’s previous position as a water leaks inspector has not been filled to date.

The Council then took the decision to offer the claimant the position of traffic/litter warden with Westport Town Council at a greater salary than the claimant had previously earned. This position was close to the claimant’s residence and would not have involved the claimant working in confined spaces. He would have been provided with the appropriate training to carry out his duties as a traffic/litter warden. The claimant was instructed to report for duty in that position on 20 December 2011. The claimant was subsequently absent from work on medical grounds until 20 January 2012. He was then instructed by way of letter dated 20 January 2012 to take up his position as litter/traffic warden on 23 January 2012. He did not report for duty on 23 January 2012 and he was again instructed by way of letter dated 23 January 2012 that he should report for duty on 24 January 2012. He did not report for duty on 24 January 2012 and the acting personnel officer then recommended to the Council’s Director of Services that the claimant’s employment be terminated as his actions in failing to carry out instructions amounted to gross misconduct. A copy of the acting personnel officer’s memorandum to the Director of Services was opened to the Tribunal.

The acting personnel officer accepted that that the claimant had not done anything wrong in his employment until 20 January 2012 and had a good employment record with the Council. The Director of Services then wrote to the claimant by way of letter dated 26 January 2012 informing him that he was recommending to the County Manager that the claimant’s employment be terminated. The claimant was given the opportunity to appeal this decision which he did by way of letter dated 6 February 2012. On 1st March 2012 the acting personnel officer phoned the claimant and again offered him the position of Traffic/Litter Warden in Westport with a start date of 5th March 2012 but the claimant refused this offer. This position was again offered to the claimant at the appeal hearing at which the acting personnel officer was the note taker. The appeal was heard by the County Manager on 7 March 2012 and it was decided not to uphold the appeal. The claimant’s employment was terminated on 18 April 2012.

The claimant’s line manager (JC) also gave evidence to the Tribunal. The claimant was instructed to take up the position in Achill.  However, he then informed the council that he was not happy to do this on medical grounds. Accordingly the council referred the claimant to the company doctor and it was JC’s contention that the Doctor’s report determined that not only was the claimant medically unsuited to the job in Achill but he was also medically unsuited to his original job as Waste Water Inspector. JC felt that it would not be proper, with regard to health and safety regulations, to return the claimant to his original job and therefore he was offered what was seen as a suitable alternative ie. Traffic/Litter Warden in Westport. The rate of pay for this position was higher than the rate for Waste Water Inspector. However the claimant refused to take up this position.

JC denied that the council ever intended to fill the post of Waste Water Inspector left vacant by the claimant and confirmed that the position has not been filled. He also confirmed that the position of Traffic/Litter Warden was an additional post and that too had not been filled since the claimant’s dismissal.

Claimant’s case:

It was the claimant’s position that he was at all times medically and otherwise suited to his job as Waste Water Inspector and that he should not have been taken from that position in the first instance and should have been returned to that position once it was established that he was not being assigned to the job in Achill. He was unsuited to the position in Achill because of his desire not to work with chemicals and he contended that the company doctor was wrong in her opinion regarding working in confined spaces.

The claimant did not wish to be assigned to the job of Traffic/Litter Warden and told the Tribunal that he was not suited to that job. The claimant and other witnesses told the Tribunal that it had been the intention of the Council to replace the claimant as Waste Water Inspector with another employee.   

The claimant told the Tribunal that he was medically unfit for work from 15th July 2013 to 17th July 2014. He also gave evidence in respect of his efforts to find alternative employment.

Determination:

Having carefully considered all of the evidence in the case, the Tribunal finds that the respondent dismissed the claimant from his employment and that this dismissal was unfair.  The Tribunal is of the view that the claimant was essentially vindicated by the medical evidence in not taking up the position in Achill.  However, it would have been irresponsible for the respondent from a health & safety perspective to return him to his previous position as a water leaks inspector.  The difficulty arises in that the respondent had done nothing wrong prior to the 20^th January, 2012 and essentially the respondent dismissed the claimant for his actions between the 20^th January and the 23^rd January, 2012. The Tribunal is of the view that notwithstanding the events which had occurred before these dates, it was unreasonable to consider the claimant actions as gross misconduct.  Even if the Tribunal was persuaded that his actions did in fact amount to gross misconduct, the sanction of dismissal was disproportionate in all of the circumstances of this case. 

The claimant is entitled to redress and the appropriate remedy is compensation rather than re-instatement. Re-instatement may be awarded as a remedy only when it is practicable to do so.  In assessing whether, or not, it is practicable to do so, the Tribunal must have due regard, inter alia, to the stated wishes of the parties. In light of the evidence of both parties, it is clear that the relationship between the claimant and the respondent has irretrievably broken down. Furthermore, in this particular case the Tribunal finds that the claimant contributed to his dismissal and therefore re-instatement is not a suitable remedy.

In assessing the appropriate level of compensation in this case the Tribunal has regard to the loss suffered by the claimant, his efforts to mitigate his loss and the extent to which he contributed to his dismissal. The Tribunal awards the claimant compensation in the sum of €10,150.00 under the Unfair Dismissal Acts 1997 to 2007

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)