EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD302/2015
APPEAL OF:
Rory Donegan
-appellant
against the recommendation of the Rights Commissioner in the case of:
Dublin City Council
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr P. Pierce
Mr N. Dowling
heard this appeal at Dublin on 30th March 2016 and 9th June 2016
Representation:
Appellant: SIPTU, Liberty Hall, Dublin 1
Respondent: Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Background:
This appeal came before the Tribunal by way of an employee (the appellant) appealing against Rights Commissioner Decision reference: r-145424-ud-14.
The appellant was employed by the respondent as a General Operative in the Planning and Development department from June 2001 until March 2014. Dismissal as a fact was not in dispute between the parties.
Summary of evidence:
The appellant lodged a written complaint with his manager on the 30th January 2012.
JL, an Administrative Officer with responsibility for employee relations, gave evidence that he became involved in the matter in March 2012. The appellant’s manager had become concerned for the appellant having read the complaint and subsequently meeting with him. Following a meeting with the appellant, JL referred the appellant to the respondent’s occupational health adviser in March 2012.
The appellant was assessed for the first time on the 14th March 2012 and it was found that he was unfit for work. The Consultant Occupational Physician believed the appellant would benefit from an assessment by a mental health specialist.
The appellant was placed on special leave with pay. The respondent could only place the appellant on special leave until such a time that he received treatment. It was not open to the respondent to place the appellant on medical leave, as no medical certificates were received.
The appellant was once again assessed in late March 2012 by a Specialist in Occupational Health who formed the opinion that the appellant was unfit for work. However, she stated in her report that once the appellant accessed appropriate treatment it was likely that he would make a full recovery.
JL met with the appellant following receipt of this report and the appellant was informed at that meeting that he would need to access appropriate treatment before being returned to work as per the Specialist’s report. The appellant refuted that he was unwell and felt that his complaint should be dealt with.
A further occupational health assessment on the 18th June 2012 found that the appellant continued to be unfit to work at present and that specialist intervention would be required before the appellant would be in a position of returning to work. He noted that while the appellant had attended his doctor, no treatment had commenced. Attempts were made in late 2012 to have the appellant attend a general practitioner.
The claimant attended Dr. McN, occupational health specialist who in March 2013 deemed the appellant unfit to return to work in the absence of him agreeing to attend a psychiatrist for treatment.
A meeting was held with the appellant in early April 2013 to discuss the medical report and to see if progress could be made with regard to the appellant receiving treatment in an effort to return him to the workplace. Further meetings were also held in this regard.
Subsequently, a letter issued to the appellant informing him that with effect from the 19th August 2013 special leave with pay would cease and that he was required to submit medical certificates to cover any absence and to also indicate that he was receiving appropriate treatment. JL stated that he had “stretched” the discretionary element of special leave as far as possible. The respondent also offered to provide access to a specialist.
In September 2013, JL was contacted by a Senior Work Psychologist with the Health and Safety Authority in relation to the appellant’s complaint. JL explained that he did not feel that the appellant was well enough to deal with any intervention on the complaint given the medical assessments of the various occupational health practitioners.
JL wrote to the appellant on the 4th September 2013 noting that no medical certificate had been submitted by the appellant and a further opportunity to comply with this requirement was provided to the appellant. The appellant was informed that in the absence of medical certification the period of absence would be regarded as an unauthorised absence.
JL received a letter from the appellant on the 10th of September 2013 wherein the appellant refuted that he was ill, that his position on this matter would not change and that he would not be submitting medical certificates. The appellant also raised the fact that the grievance he had raised had not been investigated to date. JL acknowledged this was true but stated that the situation was something of a “catch 22” as the medical reports suggested the appellant was not well enough to deal with an investigation given he was deemed unfit to return to work.
The respondent again wrote to the appellant on the 10th of October 2013. As the appellant failed to provide medical certificates to cover his absence there was no choice but to cease the appellant’s pay with effect from the 14th of October 2013. It was open to the appellant to submit medical certificates at any time and his pay would be re-instated. By letter of the 14th of October 2013 the appellant again said he was not sick and viewed the requests for medical certificates as intimidation.
By letter of the 5th of November 2013 JC “instructed” the appellant to attend a meeting in the HR Department in order to discuss why the appellant was not co-operating and to try and resolve the situation. By letter of the 8th of November the appellant replied stating that as he was no longer in receipt of any pay, he is not obliged to follow any “instruction” from the respondent. The respondent replied informing the appellant that he remained an employee and was therefore obliged to follow the respondent’s policies and procedures. Further to this, the respondent also re-iterated that he has been deemed not fit for work and that he was expected to comply with the requirement to seek specialist mental health treatment. The respondent offered to pay for the recommended appointment with a psychiatrist. The appellant was advised that if he continued to breach the respondent’s policies and failed to seek specialist treatment could lead to disciplinary action up to and including dismissal.
The appellant replied by letter of the 10th of December 2013. His position had not changed and he maintained that he was at that date, and always had been, fit for work.
By letter of the 16th of December the respondent stated that it was “regrettable” that the appellant would not attend a meeting to resolve the situation and offered the appellant one last chance to comply with instructions by attending the appointment with the psychiatrist that Dr. McN would refer him to. The appellant was informed that failure to comply would result in serious disciplinary sanctions up to and including dismissal.
Dr. McN referred the appellant to a psychiatrist for independent medical assessment in December 2013. However, the appellant failed to attend the scheduled assessment and he informed the office of the specialist that he would not be attending any appointments scheduled.
The appellant was invited to a disciplinary meeting on the 30th of January 2014. The appellant was informed of the possible consequences of non-attendance and was offered the opportunity to bring a representative. The appellant informed the respondent by letter dated the 16th of January that he would not be attending the disciplinary meeting as he was not obliged to follow instructions while he was not in receipt of pay. On the 3rd of February 2014 the appellant was informed that JC was recommending that his employment with the respondent ‘be terminated with immediate effect.’
The appellant appealed this decision to MMS, the meeting took place on the 5th of March 2014 with the appellant and his representative in attendance. Fundamentally the respondent could not deal with the appellant’s grievance until he was fit for work, but the appellant refused treatment. The appellant was afforded every opportunity to seek treatment with the respondent offering to both organise and pay for this treatment. The respondent has a duty of care to the appellant but also to his colleagues.
MMS made a final offer to the appellant to see a new occupational health doctor on condition that both the respondent and the appellant would be bound by the doctor’s decision. The appellant agreed to this. The appellant was deemed unfit to work and following the doctor’s assessment the appellant reneged on his agreement and refused to follow the prescribed treatment plan. Ultimately MMS had no option but to uphold the decision to dismiss the appellant.
At all times during the process the appellant wanted his grievance dealt with so he could return to work. The appellant maintains he was not sick and therefore medical certificates and treatment was not necessary. He did not attend the meeting with JC as he found the letter “instructing” him to attend intimidating and he was not being paid so there was no reason to follow respondent instructions. It is for the same reason he refused to attend any meetings. The final offer of an assessment made at the appeal was agreed to by the appellant’s representative, not the appellant.
Determination
The Tribunal are of the view that the appellant’s dismissal was fair. The Tribunal is limited to deciding the respondent’s fair and reasonableness in all the circumstances. The process was not perfect but the respondent is not required to be. In the circumstances the respondent believed they were acting in their employee’s and the appellant’s best interest. Any employee in a similar situation must engage in a meaningful manner having regard to keeping his job.
The employee appeal of the Rights Commissioner Decision reference: r-145424-ud-14 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)