EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Moody UD328/2014
against
An Post
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr E. Handley
Ms. E. Brezina
heard this claim at Dublin on 10th April, 17th /18th June and 29 October 2015
Representation:
Claimant : Ms Sharon Dillon-Lyons B.L. instructed by
Peter Connolly Solicitors, 6 Capel Street, Dublin 1
Respondent: Mr. Séamus Clarke B L instructed by
Ms Freda Mahon, An Post Solicitors Office, O'Connell Street, Dublin 1
Both parties made detailed submissions.
Respondent’s case:
The claimant was employed by the respondent from 9 August 1999 until his dismissal on 31st July 2013. At the time of his dismissal the claimant was employed as a full time Post-Person. The claimant was dismissed on grounds of an unsatisfactory attendance record.
The HR Manager (DH) told the Tribunal that the claimant received a number of warnings in relation to his unsatisfactory history of sick absences. In August 2008 he was issued with a ‘serious offence’ as a result of his attendance pattern. The sick absence pattern continued and in January, 2010 the claimant came under further notice. In April 2010 he received a second serious offence which incorporated a final warning of possible dismissal.
Following the two serious offence notices, the claimant continued his unsatisfactory history of sick absences, including unauthorised absences, bringing himself under further notice. Following the disciplinary process the claimant was dismissed for his unsatisfactory attendance record.
Under cross-examination, DH stated that the claimant had an unusual pattern of five work related accidents. DH denied that the claimant was being victimised by way being referred to the Occupational Health Department (OHD), as any employee absent for more than a two week period is automatically referred to the OHD. DH indicated that the respondent sought clarification in relation to the photocopied certs issued from the claimant’s GP but following clarification, the certs were accepted as genuine certs.
DH stated that the claimant’s letter of June 2008 was treated as a ‘perceived grievance’ by the respondent and the claimant was invited to discuss the matter. The claimant was aware of the grievance procedures in place at the time of this letter, however no formal grievance was raised at the time and therefore the grievance procedure was never invoked.
An official from the welfare service met the claimant in April 2011 when they discussed his ongoing condition. This official suggested to him that he contact an outside counselling agency. This witness stated that it is his practice to return all calls from staff and he had no reason not to do so in relation to the claimant. He could not say he received a call from him subsequent to their meeting and suggested the claimant attempted to make that call but somehow message never got to him.
The chief medical officer told the Tribunal that his role in examining patients is to assess their condition vis-ᾱ-vis work duties as distinct from actually treating them. Sometimes medical certificates can mask the real reason for a patient’s ailments which can be understandable. Patients are referred to him but it is their choice to attend. However, when attending those assessments it was unreasonable and unusual for them to be uncooperative. Not only was the claimant non cooperative, he was also aggressive and intimidating when he presented himself for assessment on 27 May2008. According to this doctor the claimant was vague as he revealed no details of his conditions and their causes. This witness accepted that his subsequent notes on this consultation did not reflect the complete and full extent of it.
Claimant’s case:
It was the claimant’s position that he was being bullied by DH for a long time and that his letter of June 2008 was a written complaint about this treatment. However this letter was never regarded as a formal complaint under the grievance procedures set down by the respondent. Although the claimant was aware of the formal grievance procedures neither he nor the union on his behalf formally invoked the procedures in regard to a complaint of bullying and harassment. It was the claimant’s position that most of his absences were due to work related stress from 2008 onwards.
An issue particularly stressful to the claimant and constantly on his mind was the fact that DH had questioned the authenticity of certain medical certificates which had been submitted to the respondent in 2008. The claimant alleged that DH had accused him of stealing blank certificates from the doctor’s surgery and writing them up himself.
A medical practitioner who is also engaged by the respondent and is also the claimant’s own private doctor commented that in his experience the claimant had never been uncooperative or aggressive. This doctor had been attending to the claimant since 2008 and was aware he was having a difficult relationship with the respondent, particularly its human resource manager. When a patient declares he/she is in pain then doctors accept this and attempt to treat it. Pain can be subjective and might be personal and different to patients.
This doctor went through and explained the circumstances of many of the claimant’s illnesses from 2008 onwards. Some of the medical certificates were issued by locums and others were signed off retrospectively.
Determination
Having considered all the evidence the Tribunal is of the view that the claimant’s attendance record was wholly unsatisfactory and notwithstanding numerous warnings regarding same, no improvement took place.
In the circumstances it was reasonable for the employer to dismiss the claimant and the Tribunal finds that this claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)