UD47/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                        CASE NO.

Michael O Connell                                                                 UD47/2014

against

An Post,

General Post Office

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. J.  Lucey

Members:    Ms. M.  Sweeney

              Ms. H.  Kelleher

heard this case in Cork on 23 February 2015

Representation:

_______________

Claimant(s):

               Mr. Cormac Ó Dálaigh, Communications Workers Union,

575 Nth. Circular Road, Dublin 1

Respondent(s):

               Mr. Anthony Kerr BL instructed by

Ms. Freda Mahon, Solicitor, An Post, Solicitor's Office,

1^st Floor, O'Connell Street, GPO, Dublin 1

The determination of the Tribunal was as follows:-

An unfair dismissal claim was brought on behalf of a postman whose employment was from January 1991 to September 2013. He was dismissed on the grounds of theft and breach of trust. It was submitted that, at the time of dismissing him, the respondent had not made sufficient allowance for his medical condition. In addition, it was contended that the respondent’s occupational support services had not properly fulfilled their duty of care in their treatment of the claimant.

The respondent’s position was indeed that the claimant had been dismissed for the reasons above. Copies of voluminous correspondence were furnished to the Tribunal.

Having made an affirmation, EB (from the respondent’s HR) gave verbal testimony that she had made the decision to dismiss the claimant. She had considered the claimant’s psychiatric circumstances but had noy found that they mitigated his conduct.

Under cross-examination, EB acknowledged that she had no psychiatric qualifications. It was put to her that the claimant had not known what he was doing. She replied that an explanation had been proffered but that it did not mitigate. There had been an investigation. The claimant had had the right to appeal.

Giving sworn testimony, MG (from the respondent’s employee relations function) said that he had heard the claimant’s appeal and was aware of the question of whether the claimant could avail of ill health retirement. The respondent’s medical function had not found this appropriate. MG could not grant this himself although he could dismiss on ill health grounds. He decided to uphold the claimant’s dismissal after the claimant had been on full pay for over a year.

Asked if he had considered a lesser sanction, MG replied that dismissal was the only sanction for theft. It was put to MG that the claimant’s trade union had thought that medical evidence had not been taken into account. MG replied that he had gone back to FOR (the respondent’s medical adviser) a couple of times but that the claimant had not met the criteria for ill health retirement.

The claimant’s representative acknowledged that it had been accepted that the claimant could not go back but he submitted that the respondent’s finances had mattered more than the claimant’s health.  In cross-examination of MG it was put that the claimant had never met the respondent’s chief medical officer. MG replied that the claimant had seen a psychiatrist and had had contact (if not actual meetings) with occupational health services on forty-six occasions.

It was not denied that the claimant had sent medical certificates citing depression but not suicidal ideation. It was submitted that occupational health personnel should have made the respondent more aware of the claimant’s condition and had failed in the duty of care to him and that MMcM (the one counsellor whom the claimant had engaged with) had just gone  missing. MG replied that the respondent did not have to trace a departed person on whom he could not comment.

MG said that he could not decide on ill health retirement without a doctor and that the person had to be permanently incapacitated. When it was put to MG that the claimant had had depression for seventeen years he replied that the respondent was not a primary healthcare provider and that there had been no alternative along the lines of ill health retirement to discuss.

Giving sworn testimony, FOR said that half of the respondent’s absences cited depression but that ill health retirement was a very specific finding. The respondent did not deal with primary care. It did consider the contacts the claimant had. The claimant’s sister had been involved. FOR did not have access to all reports. He found it quite distressing to hear it alleged that the respondent had let the claimant down. The respondent had not been required to follow up with the claimant who had not referred to MMcM. The claimant could have picked up the phone. JOS had been there after MMcM left. Ill health retirement was a process rather than a decision. Permanent incapacity was the criterion. Depression could last many months or over a year.

FOR stated that the claimant’s behaviour could not be explained by mental illness in a way that would excuse it. Very few people could not return to work. FOR agreed with the other medical opinion on the claimant.

Under cross-examination, FOR said that he did not get to see occupational support notes or records and that the respondent had two or three hundred people claiming depression. It was put to him that the claimant should not have been driving in that condition. FOR replied that the respondent would not ignore this and that, if the claimant were a significant risk, he would be taken off driving. However, this was the treating doctor’s responsibility.

FOR did not give a definite opinion when it was put to him that MMcM had been negligent in discontinuing counselling the claimant. He said that it was up to the individual to access occupational health services. The respondent did not go after employees. It had hundreds claiming depression.

FOR was asked if the claimant had been too ill to contact the respondent. FOR replied that the claimant had previously done so some forty-five times.

It was put to FOR that it suited the respondent that MMcM had not been available to attend the Tribunal hearing. He replied that she had retired and that the respondent did not know where she was.

It was put to FOR that the claimant had improved and should have been allowed to get better. FOR accepted that people did get better and said that he did not deny the claimant had had a suicidal tendency. FOR said that MMcM had not known what the cover arrangements were. The respondent was an additional resource and not primary care.

It was put to FOR that he had told the claimant to come off tablets. FOR replied that he let no-one drive in the wrong condition and that the respondent was very strict about driving.

When the claimant’s representative said that the claimant had been on strong anti-depression tablets FOR replied mild to moderate and that it was worse to be delusional or psychopathic. He had the records of a junior doctor. He got a specialist.

Asked to comment on the amount of time that passed between the events that led to the claimant’s dismissal and the dismissal itself, FOR declined to do so.  Answering questions from the Tribunal, he  said that he had not met the claimant back just before 2010. The respondent provided an advisory service but treatment was only a matter for the GP. He ultimately knew that the claimant could potentially be dismissed. It was towards the end of 2011 that the claimant had met MMcM.

Giving sworn testimony, the claimant’s sister (hereafter referred to as IOX) said that the claimant had come to the attention of psychiatric services, the respondent and police. JOS had taken over from the departed MMcM. The claimant explained his situation to her as best he could but the claimant was not really speaking.

MMcM told IOX that she had left the respondent. IOX only had the claimant’s side of the story. She never had more than an initial contact with JOS. She trid to contact the claimant’s union. She was given the number of an individual (OC). She wanted to find out about MMcM. The claimant’s health had really deteriorated. She felt that the respondent would not be happy until she rang and said that the claimant was gone. It “just fast-forwarded to dismissal”. The claimant had to talk to someone. The problem was coming from the claimant’s job

Asked about the claimant’s life, IOX replied that the claimant did his job and did not want anybody to know that he had depression. It was a difficult time for the claimant. He would get a cert but the respondent would not accept it. The respondent would threaten dismissal The claimant did not know whom to trust. Medication could affect his driving. The claimant’s marriage btoke up. He was out of the marital home.

MMcM listened to the claimant but subsequently rang him to wish him well because she was moving on. She felt that he needed compassion but there was a lack of contact from the respondent. The claimant had been working for more than twenty years with the respondent company. His father had been there more than twenty-five years. The claimant had been great with customers. There had been no black mark against him. He was an honest person. He loved his job too much. He could have accessed services. IOX did not understand why the respondent did not contact the claimant.

Under cross-examination IOX said that she called JOS the day after the claimant was arrested. She was ringing.  She went to see the claimant. There had been a bereavement in the family circle. All had changed in the last phonecall with JOS. He had been pleasant in the first phonecall. JOS knew that IOX had only the claimant’s side of the story but she never heard from MMcM.

Giving sworn testimony, the claimant said that he had met MMcM after work one day. It was one of the hardest things he had to do to tell her that he could not cope any more. He felt suicidal. After talking to her he felt that he would get help. MMcM was to get back to him. He felt that maybe she could do something. He had a bit of hope He got a call saying that she was moving on. She wished him well. There was nobody else. He just did not care after that. He had lost everything.

The claimant said that he had worked more than twenty-two years in his job with the respondent. He had pleaded guilty. He had to live with this. He had brought shame and humiliation on himself. There was no compassion from the respondent. He was tormented by depression. He had taken punishment.

Asked about duty of care, the claimant said that he had taken responsibility for his actions and that he was “an honest guy”. He knew that he had done wrong. He had been there twenty-two years. He had lost everything in his life. His sister and mother had supported him. It was “a relief” when he was caught.

The respondent’s representative declined to cross-examine the claimant.

In a closing statement the respondent’s representative said that full and proper procedures had been agreed with the union. The respondent had had no option but to dismiss. Although the claimant had had twenty-two years’ service he had pleaded guilty to twelve criminal counts. Regatding retirement on grounds of all health FOR had given evidence. It was submitted that the respondent had discharged the burden of having to show that the claimant’s dismissal had been substantively and procedurally fair.

In reply the claimant’s representative said that this was an extreme case and that the respondent had let the claimant down rather than even offer him a pension of a quarter of a week’s pay. Asked if the claimant was unfit for work, the representative said that the claimant was “basically a hermit” and would not be available for work again.

Determination:

The Tribunal heard detailed testimony from witnesses for the respondent. These witnesses were then cross-examined and answered any questions asked of them by the Tribunal. The Tribunal then heard detailed testimony from the claimant’s sister and from the claimant himself.

The Tribunal considered that this had been a personal tragedy for the claimant but that the dismissal had not been substantively or procedurally unfair. It was not established that the claimant was fit for work. The respondent did have a duty of care but it was not a provider of primary care services. The respondent’s procedures were not challenged to a grave extent.

It was felt that the claimant’s sister was an exceptional witness but the claimant’s own actions cost him his job. A dismissed person’s personal circumstances can aggravate as well as mitigate his offence. Dismissal was the only appropriate sanction. The Tribunal had empathy for the claimant but the respondent had to have regard to its own protection. It could listen and write reports but it was not a treating entity. It was one step removed from a primary care responsibility.

It was noted that the claimant had had major issues in his personal life and had not concealed his circumstances entirely. He had had recourse to an external entity. He had lost his home.

However, the Tribunal had no possibility of suggesting that the dismissal had been unfair albeit that the baton might have been passed from the respondent’s MMcM (who had counselled the claimant) more effectively after she left wishing the claimant well. The Tribunal was not fully convinced that the respondent had been totally unable to contact her subsequently.

The Tribunal noted that the claimant evinced willingness to take his medicine for his crime but that he had appealed his criminal sentence.  The claimant did his best before the Tribunal with no strong case. Nothing was cogently challenged. He was a troubled man.

The Tribunal is unanimous in finding that dismissal was within the range of reasonable responses available to the respondent in all the circumstances of the claimant’s conduct notwithstanding his efforts to have the Tribunal see his personal circumstances as more mitigating than aggravating.

The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)