ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001201
Complaint for Resolution:
Act
Complaint/Dispute Reference No. Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977.
CA-00001628-001
22nd December 2016.
Date of Adjudication Hearing: 17th May 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was submitting that he had been unfairly dismissed by the Respondent and the Respondent was denying the complaint. The Complaint was employed by the Respondent from 5th August 2007 and he said his employment terminated on 10th December 2015; his weekly rate of pay was €470.00c.
Complainant’s Submission and Presentation:
I say that I was effectively dismissed although no formal or verbal notification has been given to me, but I have not been given any hours at work since June this year, despite several requests for same. In June 2015 I tried to return to work after illness but my Employer refused to give me hours stating that she would like a medical Report stating that I am fit to return to work and I went to meet with the General Practitioner for the company, (named), on the 12th June 2015 who provided a medical report to my Employers which did not state that I was not fit to work. However, I was still not given any hours at work and was informed by my Employer that they wish to send me for further medical review to an Orthopaedic Consultant. I received an appointment for same on the 29th September 2015 but in the meantime, despite indicating that I was willing and able to work, no hours were given to me nor was I compensated or given any pay during this time. The Orthopaedic Consultant, (named), stated in his report of the 30th September 2015, that in his opinion, I am fit to return to work. 'In essence, I don't think there is any reason why he couldn't get back to work in a full and normal capacity', yet, I have still not been given any hours of work and I have been at a loss of my wages since 1st June 2015. I did attempt to invoke the Grievance procedures at work by writing to my Employer seeking a meeting with my Supervisor at the beginning of November but no meeting was forthcoming. I have not been given proper notification of dismissal, nor any notice of same, nor a P45, nor a reference, and so I am unable to get suitable employment elsewhere, but yet I am not getting any hours of work at my Employers.
The Complainant said that he was employed by the Respondent from 5th August 2077 as a cleaner and kitchen porter and that on average he was earning €344.76c nett per week.
The Complainant said that although he did not receive a letter of dismissal from the Respondent, he was effectively dismissed from his employment and he had not been paid since June 2015.
The Complainant was absent on medical grounds from 3rd July 2014 until the end of May 2015. He said his injury was as result of a work accident that occurred in June 2012, during his employment for which he did not make a personal injuries claim. He said that while he was back at work some symptoms recurred from this in 2014.
The Complainant said that at all times he kept the Respondent informed of progress and contacted them on 30th April 2015, stating that he would be fit to return to work from 1st June 2015, i.e. he gave one month’s notice of his proposed return. At that stage the Respondent sought information from the Complainant’s GP and the Complainant signed a consent form in relation to all information being released to the Respondent on his behalf. The Respondent then decided that the Complainant should go to their own doctor for review and there was some delay in setting this up, but eventually an appointment was made for 10th June 2015.
The Complainant said that the Respondent’s Doctor had previously completed an Occupational Health Review of him on 25th June 2012 and completed a further review; by way of letter addressed to the Respondent he stated that he had taken the liberty of writing to the Complainant’s Doctor in Poland for an updated report, but in any event he noted on examination on that day that the Complainant had no symptomology in relation to his lower back or knee in this review and that examination of the Complainant’s lumbar spine and left knee revealed no limitation in his range of movements.
Furthermore the Complainant had full forward flexion of the waist in relation to his lumbar spine and his hip range movement on the left side was intact. His left knee examination revealed some evidence of old operative intervention, but apart from this there was no instability or weakness demonstrated on examination. The Complainant had full range of movement and the musculoskeletal examination revealed nothing of note.
The Complainant gave his consent to the release of confidential information to the Respondent and any other medical information required from a third party specialist that he may be attending through the Respondent’s Doctor.
Based on this review the Complainant again asked to be given hours of work as he had been performing previously, however none were forthcoming.
It was decided by the Respondent to send the Complainant for a further review to a Consultant Orthopaedic and Spinal Surgeon. Again there were numerous delays in setting up this appointment, during all this time the Complainant sought hours of work and sought to return to work, but he was not returned to work and he received no pay throughout this period.
On 29th September 2015, the Complainant attended for an appointment with the Consultant Orthopaedic and Spinal Surgeon. This Surgeon confirmed that the Complainant had been working until June of the previous year (2014), when he had a recurrence of his symptoms from a prior injury and that he was treated in Poland and that he informed the Surgeon that he was now completely asymptomatic. The Surgeon confirmed that the Complainant has no back or knee pain and that a recent MRI of his knee was normal and clinical examination of his knee it was found to be normal. The clinical examination of his spine and neurological examination of his lower limbs was also normal and whilst the Surgeon referred to the fact that he had not seen results of any scans of the Complainant’s back, he did not feel that they would be terribly relevant. The Surgeon was of the view that the Complainant was fit enough to undertake any work he could get and did not believe there would be any long term medical conditions likely to take him away from work, that there was no significant evidence that PRP injections would have any role to play in this situation and the Complainant was not likely to require them going forward. The Surgeon also confirmed that he did not believe the Complainant’s condition would affect him undertaking his duties or his ability to return to wok in a full-time capacity. The Surgeon did not believe there was any reason why the Complainant could not go back to work in a full and normal capacity. The Surgeon’s Letter confirming the foregoing was dated 30th September 2015 and was sent to the Respondent ‘s Doctor.
The Complainant said that despite the result of this review and several requests by him directly to the Respondent, both in correspondence and directly at his place of work no hours of work were provided to him and he was not asked to return to work and was not paid throughout this period – and he had to make application to make Social Protection for assistance.
The Complainant said the Respondent is now stating that he was not dismissed, however, it is clear on the evidence to date that the Respondent did not allocate any work hours to him since June 2015 nor have any work hours been allocated or offered to him since the commencement of this process and it was submitted that this it is effectively dismissal.
The Complainant gave evidence in relation to his efforts to secure alternative employment and mitigate his losses.
Summary of Respondent’s Position:
The Respondent said that the Complainant commenced employment with them on 5th August 2007.
The Complainant was scheduled to work on 4th May 2011, from 9.00am to 6.00pm. He reported for work, but he clocked out and left at approximately 12 midday. On the following day he sent a medical certificate stating that he had a knee injury and would be off for a week. The Respondent said that it is worth noting that he had previously asked if he could take holidays on the Wednesday of that same week.
The Respondent received medical certificates from the Complainant on a weekly basis from his Doctor in Sligo from then to June 2013. From July 2011, the medical certificates came from Poland and were translated to english and received on a monthly basis until April 2012. The Respondent said that they were never in receipt of the original medical certificates from Poland.
The Respondent said that on 19th May 2012, the Complainant informed them he was okay to return to work on advice from his Irish Doctor. The Respondent said that it was at this time that the Complainant informed them that the accident to his knee occurred in the workplace that as he was no longer receiving a Social Welfare Benefit payment he would be pursuing a claim through the Injuries Board. The Respondent said that at no point prior to this did the Complainant inform anybody that he had allegedly tripped in the Kitchen, all that was told by him was that his knee was sore and that he had to go home (to Poland). The Respondent agreed to pay the Complainant €1,200 so that he could pay his bills as he was no longer in receipt of Social Welfare Benefit. The Respondent said that this was not an admission of negligence on their behalf but rather an act of goodwill as he needed the money. The Respondent sent the Complainant a letter on 14th May 2012, confirming that he was still considered to be an employee and he subsequently withdrew his claim to the Injuries Board.
On 19th June 2012, the Complainant submitted a Medical Certificate from Poland stating that he was fit for work. However in line with the Company Regulations and to ensure that he was fit to return to work, the Respondent sent the Complainant for an Occupational Health Assessment on 22nd June 2012, prior to his proposed return to work. The Company Doctor confirmed that the Complainant was fit to return to work and so he returned in June 2012 and worked until May 2013.
The Respondent said that the Complainant took a period of annual leave for 4 weeks in May 2013 and he was to return to work on 14th June 2013. However, he did not return to work on this date and he submitted a medical certificate from a named Doctor stating that he was unable to work due to a left knee injury. This Doctor issued medical certificates in relation to the Complainant until 4th July 2013. However this absence from work continued until October 2013. The Complainant’s Polish Doctor submitted medical certificates from July to October 2013.
On 21st October 2013, the Respondent received a translated medical certificate (from Polish) stating that the Complainant was fit to return to work. Once again in adhering to Company Policy, the Respondent sent the Complainant an email on 27th October 2013, stating that he was booked in for another Occupational Health Assessment, but as the Doctor was away until 18th November, it would not be possible to have him assessed until then. He was informed that that in the interim he could return to work for 2 or 3 shifts with the proviso that he would attend this Appointment. The Complainant agreed to this and returned to work, but as he seemed fit to work he did not attend this Appointment and he also assured the Respondent his knee would need no further treatment.
In June 2014, the Complainant took a period of annual leave for 4 weeks. On 3rd July he emailed the Respondent stating that he again had a problem with his knee and would not be returning as he would be attending rehabilitation in Sligo. He sent in a translated letter on 3rd July, from a Doctor in Poland, different to the one he had previously been attending, to state that he needed urgent rehabilitation on his knee. He continued to submit these medical certificates from July 2014 to May 2015. During this period the Respondent sent the Complainant numerous emails asking him when he would be returning to work. However the Complainant carried on submitting certificates at the end of each month without answering any of the Respondent’s queries.
During the period of July 2014, the Respondent sent the Complainant an Illness Benefit Form by post and also included a letter asking him to sign a Consent Form to confirm they could contact his Doctor regarding his ongoing condition and the future prognosis, No response was received from this letter so a second one was sent on 29th July 2014. At no stage was the Complainant asked any questions about his condition, the Respondent only ever asked if his Doctor could confirm his condition, his likely prognosis and ability to return to work. The Respondent did not receive any reply until 20th August when the Complainant responded to an email and stated that he would be absent until the end of August as he was having surgery on his left knee the next week and his Doctor would issue an opinion on his knee. However he submitted another medical certificate for September 2014.
On 30th September 2014, the Respondent sent the Complainant another letter stating that his contract of employment was with them in Ireland and the terms and conditions are subject to their Company Procedures and not Polish law. This letter also pointed out that over the previous 2 years the Complainant had applied for annual leave in May or June to return to Poland, and that subsequently each time, he had submitted a medical certificate to state he would not be returning and ended up absent for more that 6 months each time.
The Complainant did not reply to this letter and instead he submitted another medical certificate on 2nd October 2014 and he emailed that he would be waiting for rehabilitation for 6 months. He also said that the Department of Social Protection had written to him about attending the medical committee about his possible return to work date. The Respondent said that therefore it became apparent to then that he did not in fact have surgery on his knee at all, but received a PRP injection on 25th September, which is described as a non-invasive procedure.
During October 2014, the Respondent emailed the Complainant a number of times requesting to know if it was possible to contact his Doctor regarding a possible return to work date. He eventually replied stating that his Doctor said “No”, he had just started rehabilitation and this would last 6 months.
On 24th October, the Respondent again emailed the Complainant to have him clarify matters with regard to his treatment. On 1st November 2014, the Complainant replied stating what PRP was, in his own words, as it did not come from the Doctor; he also said that the Doctor cannot specify the return to work date and that in the future he would need injections every 6 months.
On 12th November 2014, the Complainant was back in Ireland and he went to see the Respondent to request that they fill out a form regarding Disablement Benefit he was applying for in respect to his alleged accident in 2011. The Respondent asked him why he could not give his Doctor’s details as they needed answers to their questions. He was asked by the Respondent to put in writing to them that the Doctor refused him permission. The Respondent explained that it made it difficult to plan rosters if he was not willing to give some information regarding his ability to work etc. In response the Complainant sent an email on 8th December in which he accused the Respondent of not being nice to him and he stated that he was not obliged to give them information regarding his health.
On 9th January 2015, the Respondent again wrote to the Complainant refuting his claims and asked again about a possible return to work date, explaining they could not keep a job open indefinitely for him; that they needed to have reasonable knowledge of his prognosis and a possible return to work date from him.
On 26th February 2015 the Respondent sent an email to the Complainant in which they again informed him that his job could not be held open indefinitely unless he was willing to provide a reasonable estimate of his return to work date and a health prognosis.
The Respondent sent an email to the Complainant on 8th April 2015 informing him they had set up an Occupational Health Assessment for him for 17th April. The Complainant informed the Respondent that he would be fit to return to work on 1st June 2015, but that he would not be able to attend the appointment on 17th April. The Respondent replied, stating that under the provisions of his contract of employment he should be available for a health assessment and therefore subsequent appointments were made.
On 30th April 2015, the Complainant sent the Respondent a translated document from the original Doctor he attended that he was fit to work from 1st June 2015, as his treatment was completed; the Respondent said that however the signature on this document was illegible. The Respondent emailed the Complainant back to state they had rescheduled his appointment and would contact him with a new date. The Complainant responded by email to state that he would have to return to Poland every 6 months for PRP injections for which he would need 3-4 weeks rehabilitation.
The Complainant attended for the Occupations Health Assessment on 10th June and the Report issued by letter of 12th June, in which the Doctor stated that felt that an independent orthopaedic review with a specialist would be of benefit.
The Respondent sent the Complainant the Report with an attached letter and stated they would appreciate if he would supply them with copies of his original Polish Medical Certificates, that were requested on previous occasions and also requested his last ‘Fitness to Work Certificate’ from his Polish Doctor after his examination on 26th May. The Complainant replied on 16th June by email expressing his dissatisfaction with seeing another doctor and he claimed that his rights were being affected. The Respondent replied on 17th June, that as their Doctor had recommended that he see a Specialist, then this was the course of action that would be taken. On 19th June 2015, the Complainant wrote to the Respondent stating that they had two choices; either make him redundant or allow him to return to work.
On 26th June, an email was received from the Respondent’s Doctor stating that the Specialist requested the Complainant have an MRI before the Appointment; a date was scheduled for this for 21st July, the Complainant attended the appointment for this and the Respondent wrote on 27th July to ascertain when the specialist was available, however the only available date was 29th September.
The Respondent said that unfortunately when they received the Report from the Specialist they found that he had not adequately answered all of their questions and so a letter was sent for further clarification of the Complainant’s injuries, and in particular whether he would need to return to Poland every 6 months for treatments. Once they received a Full Report from the Specialist, they sent an email to the Complainant stating that he was fully fit to return to work and that he would not need to return to Poland for injections and they sought clarification from him in that respect. As no reply was received the Respondent again wrote on 8th January 2016 seeking confirmation that the Complainant would not need to return to Poland every 6 months for treatment.
The Respondent said that the Complainant has stated on his Complaint Form that he was unfairly dismissed. The Respondent said that in light of the fact that they did not dismiss the Complainant at any point it is their submission that the Complainant resigned from his job and thus is it is clear they are dealing with a constructive dismissal complaint. The Respondent quoted from the definition of constructive dismissal contained in the Unfair Dismissals Act 1977.
The Respondent said that it is clear from that definition and the relevant case law that there are 2 circumstances that constitute constructive dismissal, namely:
1. Where “because of the conduct of the employer the employee was or would have been entitled to terminate the contract of employment” i.e. The Contract Test and/or
2. Where “it would have been reasonable for the employee to terminate the contract of employment” i.e., The Reasonableness Test.
The Respondent said it is well established that in order for an employee to be successful in a claim for constructive dismissal they must establish that one on the circumstances referred to above existed. The Respondent submitted that in the instant case that was/is not the case and that accordingly the Complainant has failed to meet the required burden of proof.
No.1 The Contract Test.
The Respondent said that for an employee to rely on the breach of contract test they must prove that the breach went to root of the contract or in the alternative that the employer no longer intended to be bound by the main terms of the contract. The Respondent said that it has been established in numerous cases such as Cosgrave -v- Kavanagh Meat Products Limited [UD 6/1988] that this is a high burden of proof for employees to meet. The Respondent said that in the instant case the Complainant has failed to meet this burden of proof as the Respondent did not commit a breach of the contract of employment and certainly did not commit a breach that could be said to have gone to the root of the contract. The Respondent said in this regard it should be borne in mind that the Complainant’s terms and conditions of employment remained the same throughout the course of his employment with them.
N0. 2 The Reasonableness Test.
The Respondent said that it appears from his Complaint Form that the Complainant is seeking to base his case on the Reasonableness Test. The Respondent said that in order to satisfy this test it must be established that they acted in such an unreasonable manner that the Complainant had no alternative but to terminate his contract of contract of employment. The Respondent submitted that in the circumstances it is not possible for the Complainant to establish this as he was treated in a fair and reasonable manner at all times throughout his employment with them and accordingly he was not entitled to dismiss himself. The Respondent said that it is well established that in cases of this nature there is a requirement to take into account the conduct of both parties and in that respect it should be noted that the Respondents evidence is that the Complainant’s behaviour was not satisfactory; in particular his continued lengthy absences from work as shown in the detailed background provided in the submissions provided and this was the cause of any issues that arose between the Complainant and them
Notwithstanding and without prejudice to the fact that the Complainant has failed to meet the required burden of proof, the Respondent further submitted that they neither breached the Complainant’s contract of employment, nor behaved in such an unreasonable manner as to entitle the Complainant to resign and take a claim for constructive dismissal.
Based on the foregoing the Respondent submitted that the complaint was not well founded and that it should be rejected.
Findings and Decision
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.
I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the case/complaint.
The Complainant is submitting that the Respondent dismissed him by reason of the fact that they did not afford him any work from 1st June 2015, when following a lengthy absence on sick leave, he was certified as fit to return to work, and that they continued to deny him hours of work right up to 10th December 2015, despite him being medically certified as fit to return by medical advisors of his own and the Respondent.
It cannot be denied that the period from 1st June 2015 to 10th December 2015, a period of 27 weeks, for the Complainant to be without work or wages would present great hardship to any employee. However this must be considered in the context of the Complainant’s record and in particular his absence record, both the one immediately prior to this period and the previous ones.
The Complainant had a history of a pattern of long-term absence on sick leave, much of it spent outside this Country that would be a cause of concern to any employer.
The Complainant was absent from work from 4th May 2011 to 25th June 2012 (he had previously sought holidays from the same week) on medically certified sick leave, his medical certificates were submitted from Poland. His medical certificates from Poland sent to the Respondent were translated to english copies and not the ‘originals’ He had been certified as fit to return by his Polish Doctor on 19th June 2012 and in accordance with Company procedures to ensure that he was fit to return to work he was sent for an Occupational Health Assessment on 22nd June 2012, and he was certified as fit to return to work and did so, i.e. a period of more than one year of absence.
The Complainant then worked until May 2013. The Complainant took a period of 4 weeks annual leave in May 2013 and went to Poland. He was due to return to work on 14th June 2013. However the Complainant did not return to work on that date. Again as with the above absence his medical certificates were initially submitted from Ireland, but from 4th July to 21st October 20113 the medical certificates were submitted from Poland. Again the medical certificates from Poland were translated to english copies and not the originals. While again an Occupational Health Assessment in Ireland was arranged it did not take place and the Complainant returned to work in October 2013, an absence period of more than 5 months.
In June 2014, the Complainant took a period of 4 weeks annual leave. However, he emailed the Respondent on the 3rd July 2014, to say that he once again had the same medical problem and would not be returning to work as he would be starting rehabilitation in Ireland. He sent a translated letter from his Doctor in Poland on 3rd July 2014, stating that he needed urgent rehabilitation for his injury. The Complainant submitted medical certificates from July 2014, throughout this period the Respondent sent numerous emails asking the Complainant to indicate when he expected to return to work but with no response. Again as with the previous absences most of the medical certificates were sent from Poland; they were translated to english copies and not the originals. In addition the Complaint only sent his Polish medical certificates monthly, despite the fact that his contract of employment required him to submit them monthly and he was fully aware of that fact. Even when the Respondent asked him (repeatedly) to send weekly medical certificates he resolutely refused to do so. In many, if not most, employments, such an ongoing refusal would be a serious disciplinary matter and would be treated as a refusal to carry out a legitimate instruction from his employer and a potentially dismissible offence.
It can be clearly seen that a pattern is emerging here over a number of years, whereby the Complainant seeks or books holidays, then does not return from those holidays, going on long-term sick leave, most of which is spent in Poland, and the reasons for each absence is similar. In relation to the last period of absence, from June 2014, the Respondent regularly and consistently sought information from the Complainant as the prognosis for his medical condition and any indication of a potential return to work date, without any success. While is was not reasonable and indeed foolish of the Respondent to expect that any doctor was going to directly deal with them or directly provide them with medical information in relation to the Complainant (or any patient), not least due to medical ethics, it is not difficult to understand their frustration at the lack of information and the lack of co-operation by the Complainant in providing necessary information in respect of his absence to allow them to plan for cover for him and for rostering. The Complainant does not appear to have giving any consideration whatsoever to the effects of his absence on the operation of the Respondent’s business and the uncertainty of any indication of a return to work date for him.
It is regrettable that the parties were not able to sit down together and discuss the Complainant’s return to work following a lengthy absence; however this was primarily due to the fact that he was in another Country.
At the time the parties were exchanging emails is relation to a potential return to work for the Complainant in June 2015, the Complainant sent the Respondent an email on 6th May 2015 in which he states:
“On last visit I was given another injection of PRP. Every 6 months I have to go to the Polish on PRP injection in the left knee. Such are the recommendations of the doctor and I’m going to follow them. After the injection I must have 3-4 weeks of rehabilitation. Absence from work will be 3-4 weeks every 6 months (my emphasis) The idea is to ailments with his knee up already do not happen again and that I was not on sick leave for as long as last time.
The above statement would be a cause of concern to any employer, stating as it does that the Complainant would be absent every 6 months for a period of 4 weeks every 6 months, a period of 8 weeks every year on an ongoing indefinite basis. This would present a genuine problem for any employer and would most definitely require clarification before arrangements for a return to work could be arranged or agreed. This was the main reason for the subsequent delay in agreeing return to work arrangements and it was not a matter of the Respondent’s making.
In these circumstances and bearing in mind that in the 4 year period from May 2011 to May 2015, the Complainant was absent on medically certified leave for a period of 30 months for similar medical reasons, there was very legitimate cause for concern by the Respondent and as it was now been indicated by the Complainant that the medical conditions was ongoing and would require on an ongoing indefinite basis that he would be absent for 8 weeks a year for medical treatment. It was prudent and responsible of the Respondent to seek to address and confirm the position in relation to this before they could agree return to work arrangements; it was a reasonable reaction of a reasonable employer.
It is a fundamental tenet of a contract of employment that goes to the root of that contract that an employee must be in a position to deliver uninterrupted attendance at work and it is well established that the absence of such position for whatever reason can represent the frustration of that contract.
While no reasonable person would suggest that this means that an employee must never be absent from work on sick leave of for medical reasons, in the instant case we have an employee who has been absent from work on medically certified leave for a period of 30 months in the previous 4 years, a 62% absence rate, and is now indicating that the medical reason that caused that absence is ongoing and will require 8 weeks absence for medical reasons going forward indefinitely an 8% absence going forward.
This foregoing caused the need of the Respondent to establish or obtain clarification of the position going forward. Despite repeated requests the Complainant did not withdraw of qualify the statement made in his email of 6th May 2015 to the Respondent quoted above, despite the fact that the Respondent had made it plain that this was the only reason preventing or holding up arrangements for his return to work, this was a matter within his own control to clarify, change or withdraw the contents of correspondence sent by himself.
The actions of the Respondent were the actions of reasonable employer in possession of the information they were in possession and in light of the facts known to them.
Based on the foregoing I have concluded that the Complainant was not unfairly dismissed by the Respondent, constructively or otherwise.
I find and declare that the Complainant was not unfairly dismissed by the Respondent; the complaint is not well founded and it is rejected.
Dated: 2nd September 2016