EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Tim Harron UD61/2014
MN28/2014
against
Donegal Meat Processors T/A Foyle Donegal
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 1st July 2015 and 8th October 2015
and 9th October 2015
Representation:
_______________
Claimant: Ms. Fidelma Carron, SIPTU, Membership Information &,
Support Centre, 8th Floor, Liberty Hall, Dublin 1
Respondent: Terry McNamara, IBEC, 3rd Floor, Pier 1, Quay St., Donegal Town
Background:
The claimant was dismissed due to allegations that he was working for someone else while on unpaid sick leave with the respondent. The respondent considered “working for self or someone other than the company during hours of employment with the company or during sick leave” as breach of contract and therefore gross misconduct. The Tribunal was shown CCTV, taken on 15th April 2013, between the hours 12 and 3pm, by a private investigator. The claimant accepted that he was the person shown and that he was lifting toolboxes and handling other items.
Respondent’s case:
BK, HR manager told the Tribunal that the respondent has strict disciplinary and sick leave procedures agreed with SIPTU. One of the definitions of gross misconduct is “ working for self or someone other” while on sick leave. The claimant produced a medical certificate to say he was suffering back pain following a work injury on 1st February 2013. The claimant then went on to have a surgical procedure which left him with and open wound that needed to be dressed on a daily basis.
In line with company procedure BK called him to an absence review meeting. This was postponed following a conversation with the claimant and he was referred to an Occupational Consultant on 11th April 2013. The Occupational advisor reported to the respondent that the back pain was resolved and his wound would be healed in a further two weeks. It was expected that the claimant would resume work on 29th April.
BK then said that the claimant was called to an investigatory meeting on 23rd of April 2013. This followed the involvement of a private investigator and the production of surveillance footage allegedly showing the claimant working outside a factory in Omagh. She was unsure where the original allegations had come from but as the claimant had been out sick on a number of occasions JC had asked for surveillance. She had no recollection of telling the claimant during the meeting that “it was common knowledge” that he was working.
The private investigator told the Tribunal that he mainly carried out insurance work. He was told by the respondent about a back injury and was asked to observe the claimants mobility. His report contained evidence of the claimant lifting, bending and carrying items on the day in question.
JC, Health and Safety manager with the respondent told the Tribunal of what he considered to be an innocuous incident with the claimant on 30th January 2013. The claimant fell over an animal but got up and continued to work. Only later did he seek medical help.
JC decided that the claimant should be put under surveillance because the claimant was out sick for such a considerable length of time after an “innocuous” incident; this was defence to a possible personal injuries claim. At the investigatory meeting of 23rd April the claimant was flippant and refused to answer questions about the purported allegation of working while on sick leave. When shown the CCTV he said he was helping a friend. The claimant’s sick certificates continued to say back pain and post opp. JC was aware that the claimant had an operation. JC concluded that the claimant was working while on sick leave, regardless of what he was on sick leave for and that he had a case to answer.
LO the Group HR manager told the Tribunal that he conducted the disciplinary hearing on Friday 3rd May. He had watched the CCTV and had seen the claimant lifting tools, accessing the back of a lorry and carrying objects from a van. When he put all of this to the claimant he insisted that he was just helping a friend, it was a day away from the house, a day out. The claimant accepted that he was carrying tools but said that he had no issue with his back/neck, his problem was just a post-operative wound.
LO felt that as the claimant’s doctor had deemed him unfit to work, what he had seen on CCTV suggested differently. He considered what had happened as gross misconduct and therefore a sackable offence. At the meeting the claimant produced a statement from JD who was with him on the day, saying that he was not working with him, and a letter from the company that employed JD stating that he never worked for them.
LO wrote a letter of dismissal on 20th May allowing the claimant leave to appeal his decision.
An appeal meeting was held on 20th June with NM Group Finance and HR manager. He upheld the decision and told the Tribunal that he considered “any mental or physical effort to achieve a task” could be considered as a definition of work.
Claimant’s case:
JD gave evidence of telephoning the claimant’s house on the morning of 15th April to see if he would like to come with him for the day. The claimant said no but shortly afterwards his wife phoned back and said he’s going to go with you, come and collect him. It was a considerable distance away but was meant to be a 20 minute job that lasted for more than three hours. JD stated that the claimant did not ever work for him or with him. He did hand things (tools/boxes containing fans) to him on the day in question to try and speed things up but the claimant did not do anything else.
The claimant told the Tribunal that after re-structuring with the respondent he was working at the end of the production line when an animal landed him up against a gate. He worked on but his back popped. It was something that he was familiar with and asked for 30mins to get changed out of his working gear and go do some exercise. JC insisted that he take a drink and drugs test. The claimant ended up taking time off to recover from the back injury and while on sick leave advised BK of a pending operation. He thought it was best get it out of the way while on sick leave and she said ok.
He met with occupational health on 11th April and then met with JC. He told him his back was no longer an issue and that he would return to work in two weeks when the wound was fully healed (it would be totally unhygienic to put on a boiler suit and work beside a steamer/sterilizer). The next thing the claimant knew was that he was being called to an investigative meeting and was told to bring the shop steward.
The claimant was shown footage on a laptop and told that allegation had been made that he was working while on sick leave. He asked who made the allegation and why the respondent could pay for a private investigator but couldn’t pay him while on sick leave following an accident at work. He was told by BK that it was common knowledge that he was working.
He told the Tribunal that on the morning in question he was in bed when JD phoned. He told him he wasn’t going with him but when he wife asked who was on the phone she said she would dress his wound and to “get up and go”. He didn’t ever work with JD, who was a family friend but when standing around for a long time on what was meant to be a short job he did hand him tools/fans and take stuff out of the van for him. He told the respondent that there was nothing wrong with his back but they kept saying you were bending down, lifting things etc., etc. The footage was for over three hours but only 30/35mins showed him doing anything. He said he was a loyal employee who never claimed anything from the respondent in his 15 years of work.
Asked about the reason his sick certificates continued to say back injury and post op. the claimant told the Tribunal that he was never examined by the doctor, his certificates were repeats picked up from the doctor’s secretary. He told BK that his back was no longer an issue and the report from occupational health confirmed same.
Determination:
The Tribunal determine that the respondent company have failed to discharge the onus on them to prove that the activity the claimant was engaged in on 15th April was work. Work can be defined in many ways and the onus is on the respondent to define clearly what was meant by “work” in the contract, which they failed to do.
The Tribunal having heard the evidence adduced determines that on the balance of probability the claimant’s evidence was credible but that his efforts to mitigate his loss were lacking for considerable periods of time.
Accordingly the Tribunal awards the claimant the sum of €14,000.00 under the Unfair Dismissals Acts, 1977 To 2007.
No evidence was adduced by either party under the Minimum Notice and Terms of Employment Acts 1973 to 2005. This claim therefore fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)