ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002011

Complaint for Resolution:

Act	Complaints Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act,1977	CA-00002596-001	15/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00002596-002	15/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002596-003	15/02/2016

Date of Adjudication Hearing: 15/06/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, Section 39 of the Redundancy Payments Act, 1967 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

As dismissal was disputed by the respondent, I asked the complainant to lead on the submissions to the hearing.

The complainant commenced work as a Refuse Truck Operator on 11 December, 2007 .He worked a 39 hour week and received Euro 466.96 in payment. His job title was Refuse Truck Assistant and he is a Lithuanian national. The complainant submitted that he was not permitted back to work post a period of illness in 2014/5. He contended that he had made repeated contact to secure his return but was unsuccessful .He waited 2.5 months to meet the appropriate manager, Mr M, only to be told that there was no work available. He considered that he had been effectively dismissed by the respondent on 18 September 2015 and sought redress in the form of compensation

The complainant’s representative submitted that the company had been on notice of the complainants work difficulties via a Doctors note of 17 January, 2014.

“The complainant has now worked on the back of the truck for about the last 5 years. He is standing on one leg in the same position all the time…… He has developed muscular pain ……Is there any chance for him to get another position within the company that would not involve standing in this position?”

Yet, the company did not treat him in a fair manner , by omitting to assess his capacity to set out what actions were to be followed .The Department of Social Protection had advised the complainant that he was unfit for certain types of work. This was also complicated from the residual effects from the road traffic accident of some years earlier. The complainant had been employed continuously from 2007 and was essentially “fobbed off “from his employment.

At the time of the hearing the complainant had been engaged on a Job Bridge Programme since February 2016.

The complainant gave evidence that he worked a four day week at the company on early start times of 3 am and 6 am for 6-10 hr stretches. His work involved his attendance at the rear of the refuse truck, followed by the transfer of refuse, when stopped. He was involved in a road traffic accident in November 2013 which resulted in a period of illness and a resultant bad back .In February, 2014, the complainant was involved in a workplace injury, when his “back locked “at 4.30 am, whilst out on a round. He sat in the Truck Cab until 9 am when he received assistance. He had booked annual leave and went to Lithuania for a week.

He commenced a long period of illness after this. He submitted certs to support this. He attended the company Dr who confirmed that he could undertake other jobs at the company. The complainant told the hearing that there were distinctly different trucks used in the town and the country. In the town, there was provision for him to place his two feet on the rear step thus facilitating him. This was reduced to one, narrow step in the country, which was deemed unsuitable. This caused him to hold the belief that a return to work in this job was pointless.

Throughout the period of illness, the complainant met with various managers at the company informally.

Ms N……….. To whom he submitted his certs

Mr Mc, Mr M and a gentleman referred to as “the polish man”. He supported his absence through illness on DSP payments and the proceeds of his compensation award following the road traffic accident

In April, 2015, the complainant was deemed fit for return to work by the Department of Social Protection. For the following months, he sought a return to work but was offered the same position as before, which he could not manage. He was also offered work on Mini Skips, but this would also have aggravated his back Eventually, he secured a meeting with Mr M , he was hopeful of a driving job as he had completed his test in 2011. He was very surprised to receive his P45 in the post following the discussion with Mr M. He knew that there were other jobs available at the company, such as office work, driving, or washing bins, but he was not afforded an opportunity to redeploy to these positions.

On cross examination, the complainant accepted that he had not been certified unfit for “step work” before his holidays in early 2014. He was aware that the company had requested his attendance at an Osteopath but couldn’t remember why he was unable to attend .He had access to supportive treatment from a friend. The complainant contended that he had brought the GP cert signalling his fitness to return to work to the company’s attention.

The complainant confirmed that he had not used the grievance procedure regarding his efforts to return to work being unsuccessful. The complainant disputed that he allowed time to pass in order to obtain his P45 and subsequently job seekers benefit. He stated that he wanted the “best position”. The complainant agreed that he had not contacted Mr M following reception of his P45, nor had he appealed the letter he received from Mr M.

The complainant’s representative concluded by stating that there were an abundance of procedural inadequacies in the case which led to the frustration of events surrounding the dismissal. The complainant was medically unfit to return to his position, but he was able to work. His sick notes were ignored and he was compelled to live from his savings. The complainant made reference that he had felt supported in his early days at the company but not of late, since the company expanded.

His dismissal meant that he has had to live on DSP payments and while he has made all efforts to secure alternative work across a number of roles, he was currently on a Job Bridge Programme.

Respondent’s Submission and Presentation:

The respondent disputed all claims against the company. In addition, they raised the concern that the complainant had not provided any expansion on his two line statement of claim in advance of the hearing and this compromised them in preparing their defence with regard to the Unfair Dismissal claim. There was no redundancy situation. The company was not afforded the contractual 4 week notice period provided for in the complainant’s contract of employment.

The complainant worked without incident with the respondent for a 5 year period .On 17 January, 2014, the complainant obtained a letter from his Doctor on back pain. The respondent understood that the complainant had explained this to the Dr as him having to stand on one leg, at work, for extended periods. This letter requested whether alternative work was available for the complainant? .This letter was submitted to the respondent some 3 weeks later on 6 February, 2014. The Health and Safety Manager, Mr C had intended to meet with the complainant but events were overtaken when the complainant was involved in an alleged workplace accident on February, 14, now the subject of a claim with the Personal Injuries Board .

On the day of the alleged accident, Mr C met with the complainant and facilitated him with an offer of week of stationary work, despite an absence of budget. The complainant was given the name of a company recommended Osteopath, but he didn’t attend. On the complainants return from leave, the Company Dr certified him fit to return to work in his usual position and he was added to the roster for 18 March.

An extract from the Company Dr letter:

“It is my opinion that Mr X is fit to return to work at this time ….

My advice is:

1 He must increase his physical fitness

2 He must work on his back fitness

3 Safe Manual Handling

4 Move around as much as possible. Job rotation would be optimal if such was a feasible option, but if not, then he should try to alter his position on a regular basis during the working day.”

The respondent received a text indicating that the complainant was prepared to come back to work at a different job. This was followed by a year long absence, initially supported by certificates from the complainants own Dr indicating his unfitness for any work. During this time, the complainant visited the company on occasion and sought alternative work, but was always reminded that his usual job was open to him, once he was certified as fit to return. The certificates ceased in April 2015. The respondent was never placed on notice of the complainant’s fitness for work in April 2015.

A meeting was arranged with Mr M, Financial Controller and the complainant for September18. No progress was made as the respondent hoped that the complainant was coming back to work, but the complainant continued to seek alternative work without medical rationale. It is the respondent’s case that in the face of Mr M informing the complainant that he could not provide alternative work, the complainant demanded his P45 and delayed his departure until the Office administrator secured it for him. The respondent followed this encounter up by letter on 21 September from Mr M.

The company denies any redundancy, constructive/unfair dismissal or breach of Minimum notice legislation.

Evidence of Mr C

Mr C is the company Environmental Officer, encompassing Health and Safety. He met with the complainant in the aftermath of his alleged work injury on February 14, 2015.

They discussed the contents of the GP letter of 17 January and Mr C offered the complainant access to an alternative truck but the complainant stated that this wouldn’t make a difference and that” he felt that he may no longer be able to work on the rear footboard” He agreed to avail of the Osteopath recommended by the Company Director. The complainant undertook to obtain a scan while on leave.

The complainant did not take the offer of the stationary work and instead remained in his Refuse truck role. He did take one day off.

Mr C wrote to the complainant on 20 February asking him to contact him on his return from leave for the purpose of assessing his back .The company Dr report followed on March 8^th an this was forwarded to the complainant on March 11^th . The complainant did not wish to return to his “step” job and was directed by the Transport Manager to contact Mr C to seek an alternative work. Mr C did not hear from the complainant.

In cross examination, Mr C was challenged on what action he had taken following the company Dr Report. He stated that he was unable to action it as the complainant never came back to work after that assessment.

Mr C confirmed that while the company offered Physio and Osteopath support, these were not availed of.

Evidence of Mr M

Mr M is the Financial Controller of the company .He recalled that the complainant was a good employee. Mr M was aware that the complainant was seeking other work within the company as he had been in discussions with the other managers. There was no evidence that his job was beyond his reach. He had had a number of informal conversations with the complainant throughout his period of sick leave

He recalled agreeing to meet the complainant on September 18 following Ms Ns approaches. This was a rescheduled meeting due to leave. He understood that the complainant was coming back to work but while he was offered his job at the rear of the truck, the complainant refused the offer, stating he wanted something else. There was no progress and the complainant demanded his P45 at 4pm, this was secured.

Mr M sent a letter to the complainant as follow up on 21 September:

“Just to summarise the meeting between yourself and myself last Friday .Ms N has now issued your P45 as you requested. If you change your mind we have loads of work for you at the back of the truck. Don’t hesitate to put me down as a reference for any future work you may be seeking “

In Cross examination, Mr M was asked to explain why Human Resources were not called upon to manage the issue? The company had 150 employees and HR was outsourced. He denied that he had sat idly by for a year while the complainant was on sick leave and unable to work .Mr M denied that the complainant had ever been dismissed and his job remained open. There was never a prospect of another job outside the offer of the one weeks work in the stationary work in March 2014.

When asked whether he knew that the complainant had a truck driving licence, Mr M said that he was unaware of any training as a Driver. Mr M was also asked to explain why there were no other available roles for the complainant. Mr M explained that the HR Administrative role was filled. The company was not recruiting and there had not been a change of staff at the company.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

Section 6 of the Act provides that the dismissal of an employee shall be deemed for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there was substantial grounds justifying the dismissal.

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(1B) 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.

Section 39 of the Redundancy Payments Acts 1967-2005 requires that I make a decision under the Act. Section 11 of The Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision under the Act.

I have considered the facts as submitted in this case and there is considerable conflict between the parties. I have listened carefully to the submissions of the parties and the witnesses.

It is common case that the complainant was actively seeking an alternative posting from early February 2014 as supported by his GP letter. This was overtaken by his workplace episode of reported back constriction on the morning of February 14, 2015. I am mindful that the complainant attended a workplace meeting in the wake of this episode and he did not avail of the alternative offer of work of osteopath intervention. I find this inconsistent with the first declaration in the GP letter and ultimately find the responses of the complainant to be confusing to me.

However, the company Dr report was unequivocal and clear in the course of action to be adopted in the main by the complainant and on a secondary level by the company on job rotation. However, it is clear from the evidence adduced that the complainant had formed a concrete view that he no longer saw himself in the role of Refuse support from March 18^th forward when he was expected back to work . He did not submit any evidence on the impact of the company Dr recommendations on his health and well being.

Neither party sought a subsequent review from the company Dr. I can appreciate that the complainant was on medically advised sick leave for 12 months after that and the company may not have recognised the need to disturb this . I accept that they did not receive any further medical reports on the complainant from March 2015 onwards and thus assumed that there were no medical impediments to him returning to work. The complainant did not seem to actively guide the company on his medical capacity .

The complainant is clearly on record as seeking other jobs but he did not enter a negotiating process with the company. He reached his end point almost from the beginning and did not engage in any potential alternatives. I have no doubt that the complainant was unhappy in his contracted post but it requires patience and determination to effect change in a small company and perhaps he may well have benefitted from representation at company level early on. This did not happen and while the complainant described a limbo placement where he was fobbed off by the company, I cannot adduce evidence of a pro active approach on his behalf to work through the obstacles.

I find that this case has been overshadowed by the Personal Injuries case in some way. In the immediate aftermath of the February 14^th event, the company was extremely diligent in early intervention to secure the complainants accommodation. However, the complainant did not engage and the 17 months that followed without work constituted an extended period of drift.

The company admitted that they did not keep a log of contacts between the company and the complainant for this period. They did recall that the complainant was consistently looking for other work within the company. Perhaps, it may have been useful to have sought a fresh Occupational Review at that time?

I have to accept that the company acted in good faith towards the complainant. Prior to the conclusion of the hearing, we adjourned to allow the parties to engage on whether a mechanism existed to facilitate a return to work. This did not actualise.

Based on the evidence adduced before me, I must find that I am persuaded by the account given by Mr M on the details of the meeting of September 18^th; I accept that the complainant requested his P45 in the first instance and that the complainant was not dismissed. I asked Mr M whether the company used a resignation form to mark these events but the answer was negative. I accept that the company did not seek to action the 4 week contractual notice period contained in the complainants contract of employment .

Nonetheless, I find that the complainant did not activate the company grievance procedure to follow through on his request to diversify within the company. This leads me to conclude that he was closed to the potential for negotiation through medical and human resource means. I am struck by the early offer made to offer the complainant a different truck and remain troubled that he did not at least consider the offer at that time .

In conclusion, I find that the complainant cannot succeed on his claim for unfair dismissal as he terminated his employment himself , without recourse to any procedures . He did not action an appeal to the letter of September 21,2015. I find that he simply left the company on a voluntary basis .

2 Redundancy and Minimum Notice Claims

I find also that the claims for redundancy and minimum notice are not well founded and cannot succeed . At the hearing , the representative for the complainant stated that he was focussed mainly on the claim for Unfair Dismissal but I wanted to comment on the claims for completeness.

Patsy Doyle, Adjudicator .

Dated: 7^th September 2016