ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001893

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/01/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with 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.

Background

The complainant commenced employment with the respondent company, a waste services provider, as a driver on 10th May 2012. His employment terminated on 2nd September 2015. He was paid a gross weekly salary of €660.00. A complaint was received by the WRC on 12th February 2016 under Section 8 of the Unfair Dismissals Act, 1977. The chosen redress of both parties was compensation.

CA-00002594-001

Complaint under the Unfair Dismissals Acts, 1977-2015.

Respondent’s Submission and Presentation:

The respondent provided a detailed written submission. At the outset, the submission refutes the complainant's claim that he was dismissed because he had threatened personal injuries proceedings against the respondent arising out of an alleged workplace accident. The submission also denies the complainant's assertion that that there was neither a genuine redundancy situation in place nor a fair process resulting in the selection of the complainant's role for redundancy.

The respondent's defence is that (a) the dismissal had nothing to do with the personal injuries litigation and (b) that the complainant by his own admission was incapable of carrying out the numerous alternative roles offered to him by the respondent due to his injuries or because they did not suit his home life (c) that there was a genuine redundancy situation in place and (d) that his dismissal was fair having regard to all the circumstances. In addition it is the respondent's contention that had the respondent insisted on the complainant carrying out tasks that could have led to an aggravation of the injuries, it would have been acting in breach of its statutory duty of care as set out in section 8 of the Safety Health and Welfare Act 2005.

The submission went on to say that if the complainant suffered any financial loss post-dismissal this was caused by his physical incapacity to work as opposed to his dismissal. It was also submitted that the complainant had not attempted to mitigate his loss.

The submission gave some background to the case. The complainant commenced employment with the respondent on 10^th May 2012 and was dismissed by reason of redundancy on 2^nd September 2015. The complainant was absent from work for a six month period following a workplace accident which took place on 20^th June 2014. On his return to work in January 2015 the complainant was tasked with doing night bin collections, a purely driving role which did not involve any manual labour. The complainant looked to be moved from this job as his partner was unhappy with him working nights.

Complying with the complainant's wishes the respondent moved him to another role from early February, telling the complainant that this was a temporary role only. He remained in this role until mid-March when he was moved to another depot but was not happy here as this role required him to lift bins.

At the end of April he was moved to the commercial deliveries department. It was thought this work would suit him as it mainly involved driving and moving light unloaded bins. The complainant was unhappy with this job as he felt the work was still aggravating his injuries.

On the 27^th May the complainant met with members of management who discussed his options. The respondent submits that the complainant was offered lighter duties working on skips, but was told that this work was seasonal and would only be a temporary solution.

On the 27^th August when this work on skips was coming to an end another meeting took place. It is the respondent's submission that at this meeting the complainant was told that, on account of his injuries, there were very few jobs available to him. He was offered the night collections role that he had carried out in January 2015. The complainant unequivocally refused to take up this role for the same reasons he had advanced at the end of January 2015, namely that it did not suit his home life. At the conclusion of this meeting management told the complainant that they would have to consider the options which could include redundancy or dismissal on grounds of incapacity.

The respondent argues that the complainant could have been dismissed on grounds of incapacity, but decided to make him redundant with the result that he left with a lump sum payment.

The respondent contends that there was no other option than to dismiss the complainant, but given that his injuries were sustained at work, sought to do the right thing by the complainant, by making him redundant. The respondent refutes the allegation that the complainant was dismissed because he is suing the respondent for damages for personal injuries.

The respondent called a number of witnesses who support the case made in the written submission.

The Commercial Manager gave some background to the type of work undertaken by the complainant. The Commercial Manager stated that employees are expected to be flexible in terms of hours of work and would be expected to work nightshifts (5pm to 5am) due to city bye-laws. He had been informed about an injury to the complainant, sustained when working on 20^th June 2014. The complainant was then absent for approximately 6 months.

On the complainant's return to work the Commercial Manager offered him the lightest duty available which required the complainant to work between the hours of 5pm to 2 or 3am. The complainant stayed on this job for 3 or 4 weeks but then said he was not happy, that his partner was not happy and it was not feasible to continue this nightshift due to "lifestyle". The Commercial Manager found other roles for the complainant.

By the end of May options were running out for the complainant and a meeting took place on 27^th May to discuss the roles available. The offer of doing skip work was accepted by the complainant but the Commercial Manager stated that he had pointed out to the complainant that this work was seasonal work.

By the end of August the skip work was finished. At meeting took place on the 27^th August and according to the Commercial Manager the complainant made it clear that he would not do work at night. The Commercial Manager agreed to look at what else might be available but there was nothing else.

In cross examination the Commercial Manager agreed that the complainant was a good worker and had been flexible up to the time of his accident. The witness denied that the complainant had made him aware that his difficulties were with lifting not driving.   He also agreed that there had been no complaints from the complainant when he was working on the skips. The Commercial Manager agreed that the issue of redundancy was discussed at the meeting held at the end of August. The witness did not know if any efforts were made by the respondent to have the complainant medically or vocationally assessed before deciding to make him redundant.

The Commercial Manager stated that the post offered to the complainant was a driving only job and would not have required lifting bags. He agreed that most of the complainant's work had been done in the daytime but that flexibility was required of employees.

The next witness, the Group Compliance Manager (GCM) stated that the complainant, at the meeting on 27^th May, had said that his partner was against him taking on the night-shift. He also re-iterated the evidence of the Commercial Manager that the complainant was told at the meeting held on the 27^th August that he only job available that did not require lifting was the night-shift and that the complainant has said that this was not good from the family perspective. The matter of either incapacity or redundancy was discussed at this meeting. Other options were investigated but none were available.

In cross examination the GCM stated that by the end of the summer there was not enough work to justify keeping the complainant working on skips; this work was done by sub-contractors on an ad hoc basis. The GCP denied that the knowledge of an impending personal injuries claim had changed the situation for the complainant. The GCM was adamant that the job offer made to the complainant was a driving job only.

A final witness for the respondent was the Skip Department Manager, who explained the seasonality of the skip business. He stated that the sub-contractors are not guaranteed hours or work. In cross examination he did concede that the sub-contractors have some expectation of work, but only a small amount. The witness stated that there was not enough skip work available to give the complainant a job.

Complainant’s Submission and Presentation:

The complainant's written submission states that the complainant commenced work with the respondent as a driver on the 10^th of May 2012 until the purported termination of his employment by the respondent on the grounds of redundancy. The complainant was involved in an accident in the course of his employment with the respondent on the 20^th June 2014 and was out of work for approximately six months after the accident, being paid by the company for two months only.

Prior returning to work from the accident the complainant was certified by his own GP to be fit to work only as a lorry diver. On his return to work the complainant was given lighter duties and after a period was placed on duty collecting skips, which he could do without difficulty. The complainant's submission states that in September 2015 he was told at a meeting that there was no more work available in the skips area and that the only work the respondent could offer him was collecting bags of refuse at night. It is the complainant's view that this kind of work is extremely manual and beyond what the complainant was certified to do.

The submission goes on to say that a genuine redundancy situation did not exist in the company and that the manner in which the complainant was dealt with is a breach of contract and fair procedures. The respondent made no reasonable efforts to accommodate the complainant with work that was suitable for him after his accident. The complainant submits that there was no selection process or consultation regarding the purported redundancy situation. The compliant believes there was ample work available with the respondent as a driver and that lorry drivers from agencies continued to do skip work to the exclusion of the complainant.

The submission states that the initiating letter that was served on the company on 22^nd of June 2015 in relation to the complainant's injuries precipitated the events concerning the termination of his employment. No response was received to the initiating letter.

In direct evidence the complainant gave some background to his employment with the respondent and his recollection of the injury sustained in June 2014. On his return to work in January 2015 he was given driving duties on the night-shift, however after about three weeks on this job he said he could not to the night-shift. He was moved from the night-shift at the end of January and worked on the bin delivery job until April when he was moved to another role in another depot. A meeting took place on 27^th May 2015 and the complainant was told there was not a lot of work available. He suggested that he might work on skips as he knew this would not be a problem for him physically. The complainant stated that he was never told this work was seasonal. The complainant w2orked on skips until the end of August when he was told the work was coming to an end.

Some discussion took place around this time as to whether other work might be available however, on 1^st September the complainant states that he was called into an office and handed a redundancy letter; he was devastated at this turn of events.

It was the complainant's position that the night-shift did not suit from the family perspective, it also required lifting and he had decided that he was "not lifting heavy bags."

The complainant stated that he was never asked to do either a medical or vocational assessment. He said that he had wanted to continue working to pay his mortgage but the only offer made to him was the night-shift and he could not do it due to the physicality involved. There were other jobs available in the company, such as forklift driving, but he was never offered such jobs. His was as stated was that once he put in the injury claim a red light went on over his head.

In cross examination the complainant agreed that when he started work he had agreed to be flexible and that included working nights if required. He also agreed that the company was perfectly entitled to ask him to work nights.   The complainant also agreed that at the meeting in May he had made it known that the night-shift did not suit him for family reasons, he had to mind his son in the evenings. The complainant agreed that when he came back from sick leave the company had tried to accommodate him.

Regarding the meeting in May the complainant stated that no one told him that the skip work was seasonal only. Regarding the meeting of 27^th August the complainant could not recall that he turned down an offer of work. He asked why, if an offer had been made, it had not been made in writing.

In answering questions regarding his injury the complainant stated that he was still suffering from cramps in September 2015 and had tried to avoid physical activities but had done some swimming and played some 5-side soccer.

In response to questioning from his own representative regarding attempts to find work following the termination of his employment with the respondent the complainant said that he had set up a small catering business. He was in receipt of €188 per week from Social Welfare up to November 20016 and in addition he was paid €200 a week from the catering business. He had been offered one or two truck driving jobs, including one for the County Council but he had turned them down as he didn't want to put his back at risk.

In response to questions from the respondent's representative the complainant stated that he had not looked for any jobs in 2015 and that he only actively looked for work in February 2016. On further questioning he stated that he had not looked for work until July 2016 and at that stage had decided to go into the catering business.

Findings and reasoning

Up to the time of the accident the complainant seems to have been a diligent worker. On his return from the accident in January 2015 he agreed to do night work, however after a short period of time he requested to be moved from the night shift, this was request was acceded to by the respondent. Thereafter and up to the time of the termination of employment the respondent found roles for the complainant in order to facilitate his requirements. It is well established that there is no obligation on an employer to provide alternative work or lighter duties for an employee who is no longer capable of performing his or her duties (Carroll v Dublin Bus [2005] IEHC 1.), yet in this case the employer did find alternative work. However, when no suitable daytime work was available the offer of night work was turned down by the complainant this despite the fact that the complainant agreed in evidence that his contract was such as could require night-time working.

Under the provisions of section 6(4) of the Act the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from his or her capability to perform work "of the kind he was employed by the employer to do". Dismissals for capability usually relate to problems the employee has in relation to attendance at work. In this instance the employee was not absent but was not capable or willing to do the work of the kind he had been employed to do.

There is a conflict of evidence in relation to whether the complainant was informed that the work on skips was seasonal, he says he was not told, other witnesses attested that this was made clear to him. I tend to believe the evidence of the latter.   Either way the possibility of the complainant continuing to work on skips over the winter period was deemed to be impractical by the employer and I tend to agree with this analysis. The lack of medical and vocational assessments of the complainant before the decision was made to dismiss does not seem to me to be of major significance; the complainant himself was the one who decided upon his physical limitations and the respondent must have been aware of the complainant's vocational abilities from the time he was recruited. The fact that the complainant turned down the opportunity to take up a driver post with the county council after the termination of his employment with the respondent is telling as it does not indicate a desire to return to being a driver.

As time went on the complainant must have been aware that eventually the options would run out. It was pointed out to him on at least two occasions that the restrictions he was imposing on the type of work he was willing to do would inevitably lead to a situation where there would be no work for him.  

It would seem to me in this case that the complainant's reluctance to work nights, for genuine family reasons, and his inability to lift weights, due to his injury, combined to create a situation where the complainant was no longer in a position to fulfil his contract of employment with his employer.   The employer did explore a number of avenues with the complainant in an effort to satisfy his needs but eventually they ran out of road.

Statute weights the scales in favour of the employee by providing that a dismissal shall be deemed unfair unless an employer can show substantial grounds justifying the dismissal. The onus is therefore upon the employer to show that the dismissal was not unfair. Having carefully considered all the evidence, in the circumstances outlined above I believe the employer was not unreasonable in terminating the contract of employment.

Decision:

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.

For the reasons outlined above, I determine that the complaint of unfair dismissal does not succeed.

Dated:   21^st April 2017