EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD57/2012
CLAIM OF:
Gerry Clarke
-Claimant
against
Boliden Tara Mines Limited
-Respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey BL
Members: Mr C. McHugh
Mr S. O’Donnell
heard this claim at Dublin on 1 October 2013
and 6 June 2014
and 28 January 2016
and 30 March 2016
Representation:
Claimant: Ms Caroline McGrath BL instructed by: Mr Ivan Feran, Feran & Co. Solicitors, Constitution Hill, Drogheda, Co. Louth
Respondent: Mr Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
Preliminary Issue:
The claimant was dismissed on 27 May 2011 following a process in which the respondent relied upon an investigation carried out by a private investigator. The claimant’s workplace relations complaint form was received on 17 January 2012 outside the six month period after dismissal in which to lodge such claim under section 8 (2) (a) of the Unfair Dismissals Acts, 1977 to 2007. The claimant sought to establish that exceptional circumstances had prevented the giving of notice of the claim within the six month period in order to rely on section 8 (2) (b) of the Acts which extends the time up to twelve months from the date of dismissal.
On 1 June 2011 the claimant made a complaint to the Data Protection Commissioner about the circumstances of the private investigation which involved surveillance of the claimant when at his home. Around this time the claimant, who at the time was being represented by his trade union, sought to pursue an internal appeal by way of a letter to the respondent on 2 June 2011. It was common case that, regardless of the status of the appeal, the effective date of dismissal for the purposes of section 8 (2) of the Acts was 27 May 2011.
It was the respondent’s position that it was not on notice of any intention to seek relief under the Unfair Dismissals Acts until the WRC form was lodged on 17 January 2012. A date for the internal appeal had been offered to the claimant but this had not been availed of.
The claimant’s position was that he had not been aware of the six month time limit on lodging a claim under the Acts until he was contacted by a union official in January 2012 and that the internal appeal was deferred/suspended until the outcome of his complaint to the Data Protection Commissioner. In the event the Data Protection Commissioner found for the claimant in a finding dated 9 October 2012.
Preliminary Determination:
The claimant’s assertion during the hearing that he was unaware of the six month time limit for lodging a claim under the Unfair Dismissals Acts is at odds with the position put by his representative that the claimant was waiting for the conclusion of the appeal process, which was in abeyance pending the outcome of the Data Protection complaint. The Data Protection complaint was not finalised until 9 October 2012 a date some six months beyond the maximum time permitted under any circumstances under section 8 (2) (b) if exceptional circumstances did exist. Nevertheless the Tribunal notes that the respondent was aware of the Data Protection complaint from 13 July 2011 when the Commissioner notified the respondent about the complaint. The respondent must have known that the complaint related to the dismissal of the claimant. It was open to the respondent to reply at any time to the letter seeking the appeal from the claimant’s union representative setting out their view that the appeal process was at an end. This would have removed all doubt from the claimant in that regard. For these reasons the Tribunal is satisfied that the claimant has shown exceptional circumstances prevented his lodging the claim within six months of the date of dismissal and, accordingly, allow the extension of time provided in section 8 (2) (b) of the Unfair Dismissals Acts so that the Tribunal has jurisdiction to hear the substantive claim under those Acts.
This determination was appealed to the Circuit Court but the Tribunal decision was upheld.
Substantive Issue:
Background:
The claimant was employed as a miner working underground since January 2002. There were no major issues with him.
On the evening of the 10th April 2011 an alleged incident occurred were the claimant reported an injury he sustained to his head and back while travelling in a company jeep on an underground roadway which was in poor condition. He reported the incident to his supervisor. He attended one of the company’s Doctors (Dr. B) at the end of his shift the following morning. He was certified fit for alternative work and prescribed medication.
The claimant reported for alternative duties the following day. After an hour had passed he reported to his Supervisor that he felt unwell and was advised to go home. The matter was reported to the HR Manager (EON). On the 13th April 2011 the claimant went to speak to EON who told the claimant to attend the company Doctor. Dr. G was on duty that day. EON spoke to Dr. G and informed the Employee Relations Superintendent (CB) what had occurred with the claimant. EON and CB, having heard Dr. G reporting that the injuries the claimant complained about where not compatible, decided to hire a Private Investigator to carry out surveillance of the claimant.
The Private Investigator carried out covert surveillance from the 14th April 2011 to the 27th April 2011. A report including video footage was received by the respondent. At this time the claimant was absent on paid sick leave receiving 85% of his net wages. EON and CB viewed the footage and read the report. The claimant was called to an investigation meeting on the 3rd May 2011. The claimant was informed he was being suspended on full pay pending further investigation.
A second meeting was held on the 11th May 2011 with a third meeting held on the 26th May 2011. A letter dated the 27th May 2011 was sent to the claimant to inform him he was dismissed. He was given the opportunity to appeal the decision. He sought an appeal but later withdrew it.
Respondent’s Case:
The Employee Relations Superintendent (CB) gave evidence. He told the Tribunal that he, and EON, had made the decision to engage a Private Investigator having spoken to Dr. G. He had carried out the meetings with the claimant and his representatives and having discussed the matter with the Managing Director made the decision to dismiss the claimant.
When asked, he said that the decision to dismiss the claimant was made because he had “falsified and exaggerated an injury which he claimed happened on Sunday nightshift 10th April 2011” resulting in a complete breakdown in trust.
Dr G., one of the two company Doctors, gave evidence. He explained that it was his colleague, Dr. B. who had first seen the claimant after the accident on the 10th April 2011.
He first saw the claimant on the 13th April 2011. The claimant informed him of the accident that had occurred some days earlier and had struck his head. The claimant was complaining of severe back pain. Dr G. examined the claimant and referred him for physiotherapy. Dr G. felt the claimant was unfit for work to the severity of the pain he was in and certified him unfit for work until the 18th April 2011.
(Dr G. read his medical report into the Tribunal record)
After this examination Dr G. spoke to CB but could not recall who had contacted who and did not have a record of the contents of the telephone call. On the 26th April 2011 he again examined the claimant. Dr. G. told the Tribunal that he did see some improvement with the claimant. He, the claimant, had been attending the physiotherapist. Dr. G said he did not carry out a physical examination of the claimant on that day and felt the claimant should return to his primary Doctor – Dr. B. Dr. G told the Tribunal that he was surprised with the nature of the claimant’s pain as the injury he had incurred seemed to be only of soft tissue.
When asked Dr. G. said he had no knowledge of any issues between the claimant and the respondent company until the case commenced. He stated that the respondent’s HR department, he thought it was EON, requested a report from him in relation to the claimant’s visits with him.
Note: An application was made by the representative for the respondent for the Tribunal to view CCTV footage that had been compiled by a Private Investigator on behalf of the respondent company and for the Private Investigator to give evidence. The claimant’s representative objected to both the viewing of the CCTV footage and any evidence being adduced by the private investigator. Case Law was submitted by the respondent’s representative in respect of his application.
The Tribunal advised both parties that they would consider the application and give their determination of the next day of the hearing – 30th March 2016.
Following the hearing 28th January 2016 detailed legal submissions in relation to the Tribunal viewing the CCTV footage and evidence being adduced by the Private Investigator was submitted by both parties.
On the 30th March 2016 the Tribunal determined, having read the legal and verbal submissions put forward by both parties, that they would neither view the CCTV footage not hear any sworn evidence from the Private Investigator.
Claimant’s Case:
The claimant gave evidence. He commenced employment with the respondent in November 2002 firstly as a “back up” and over time being promoted to a Miner 1. His duties as a Miner were “very active” working a 10 ½ hour shift underground. The claimant told the Tribunal that he was actively involved with the union during his employment.
On the night of the 10th April 2011 he began his shift at 8.30pm. He travelled underground with two colleagues on one of the respondent’s jeeps. It was rough terrain and the jeep was swinging left and right. The claimant told the Tribunal during the journey downwards his helmet came off and he hit his head as he was unrestrained in the back of the jeep. On arrival to the site he spoke to the driver about the “bumpy ride down.” The claimant went to work. At dinnertime, 1.20am approximately, he was speaking to a colleague who told him he had a cut on the back of his head. As there was no Supervisors around to discuss it, he returned to work for another hour. The shift stopped after an hour following a safety alert and all staff returned to the surface. He spoke to his “boss” who asked how he was, the claimant replied to him that he might go see the company Doctor.
At the end of his shift on the 11th April 2011 he attended the company Doctor, Dr. B. Dr. B assessed him, prescribed medication and put him on light duties. The claimant explained to the Tribunal that light duties involved working on the surface and not duties performed underground.
The claimant presented for work the following day for light duties. On walking outside to the common area he attempted to step up on a step but could not and the coffee he held in his hand “went flying”. He went back inside and informed the Safety Officer what had happened outside. The Safety Officer advised him to go home and return the following day for work. When he arrived the following day a colleague informed him EON wanted to see him in his office. When asked by EON how he was, he replied that he wasn’t great. EON told him that “if he was going to be hopping around for a week or two they were going to put him out”, (i.e. sick leave). The claimant said he would go to the company Doctor but he would not “put him out”.
The claimant attended Dr. G as Dr. B was unavailable and was referred to a Physiotherapist. On the 18th April he attended Dr. B when he also discussed two other ailments he had – warts on his hands and an ear infection. Dr. B. said he would treat these conditions before the claimant returned to work. The claimant attended Dr. B’s medical practice to have treatment. He attended the company Doctor and the Physiotherapist on a number of occasions including the morning of his first meeting with CB on the 3rd May 2011. The Physiotherapist told him that she wanted to see him before he returned to work.
At the meeting he attended with his Union Representative on the 3rd May 2011 with CB they discussed the incident in the mine. CB told the Tribunal that he had reason to believe the claimant was working with on certified sick leave. CB said he had CCTV footage and would present it. The claimant was suspended with pay after the meeting.
The next meeting was on the 11th May 2011. CB said, when asked, that that meeting was to continue the investigation. The claimant’s Union Representative told CB that they were refusing to view the CCTV footage. The claimant told the Tribunal that CB called him a liar on a number of occasions at this meeting and said that he, CB, could prove it with statements he had acquired. The claimant told the Tribunal that he was given a copy of these statements but there was “nothing in them.”
A third meeting was held on the 26th May 2011. The claimant told the Tribunal that the meeting was “only going one way” and that that the respondent had “made their mind up.” The claimant explained that he had attended his own Doctor the previous day who certified him fit to return to work. When his Union Representative attempted to submit this certificate at the end of the meeting CB refused to accept it. Later that evening he received a call from his Union Representative who informed him he was let go. He was shocked. Two days later he received his letter of dismissal. The claimant gave evidence of his efforts to mitigate his loss of earnings.
In cross-examination he stated that he knew that he would have to attend the company doctor to be certified fit before he could return to work even though his personal Doctor had already done so.
He refuted he had exaggerated his injuries and had never refused to work light duties.
Determination:
During the course of the hearing an application was made to view CCTV footage of the claimant, which purported to show him working while on sick leave. The Tribunal decided the video could not be viewed due to the fact that the action taken by the respondent in employing a Private Investigator was disproportionate given that it was less than three days from the incident; while the claimant was on a company Doctor certificate; and there was no evidence of previous malingering by the claimant. And for the same reasons the Tribunal decided it could not hear evidence from the Private Investigator. This action by the respondent was precipitous to say the least.
Having considered all the evidence and submissions, the Tribunal determines that the dismissal was unfair. The Tribunal was not satisfied that the claimant tried to mitigate his loss in any real sense. Having said that, he had no reference or statement of employment from the company and in a close knit community his circumstances would have been well known.
On balance therefore the Tribunal awards the claimant the sum of €8,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)