ADJ-00002105

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002105

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

Date of Adjudication Hearing: 11/11/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) 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.

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

The Complainant was employed by the Respondent on the 25^th of April 2000 as a general operator / machine operator. He worked a 39 hour week and was paid approximately €467.24 gross per week. 

On the 26^th of May 2015 the Complainant was suspended with full pay pending the outcome of an investigation into an alleged confrontational encounter between the Complainant and a fellow staff member. 

The company doctor issued a certificate stating that the Complainant was suffering from acute anxiety disorder allegedly caused by bullying at work. 

The Complainant was removed from paid suspension on the 5^th of June 2015 and was on paid sick leave from the 8^th of June 2015. 

On the 17^th of June 2015 the HR manager wrote to the Complainant. “Please remember there is no pressure on you to return to work. If this takes some time, so be it. It is important that you are fully fit and able to do so. Your health is extremely important so I encourage you to follow doctors’ advice.” 

The doctor’s report stated that he was suffering from “quite major anxiety which he needs to take control of”. 

The Respondent’s HR Manager issued a letter on the 9^th of September 2015 requesting the Complainant to submit a doctor’s certificate on a weekly basis or any period of absence after this date would be unpaid and unauthorised. She asked that any up to date certificates would be submitted to her without delay. 

On the 30^th of September 2015 a further report issued from the company doctor. She deemed him fit to return to work. 

The Complainant was requested to return to work. 

The Respondent wrote to the Complainant on the 9^th of November 2015 reminding him to submit doctors certificates while on sick leave. 

At the hearing the Complainant gave evidence of submitting a further medical certificate to the Respondent. It was after October 2015 and covered a four week period to the 16^th of November 2015. It was posted to the Respondent by the Complainant.   

The Complainant met HR with his representative on the 13^th of November 2015. At that meeting he set out that he had been subject to name calling, harassment, degrading treatment by his work colleagues for years. 

The Complainant advised that he didn’t feel he was able to go back to work. The HR manager advised him to send in doctor’s certs to her. 

On the 27^th of November 2015 the Respondent was requested to submit medical certificates for his current absence to the HR department without delay. The Respondent advised that they were prepared to redeploy him to a different manufacturing area. The Complainant was required to report to work on the 3^rd of December 2015. The Respondent confirmed that it would not investigate the allegations made on the 13^th of November 2015 as these were historic in nature. 

A further letter issued to the Complainant on the 1^st of December 2015 requesting him to identify what he wanted to do. The Complainant had raised with his union representative that he did not wish to return to work with the Respondent. This was relayed to the HR manager and she requested in her letter of the 1^st December 2015 that the Complainant confirm by close of business on the 3^rd of December 2015 if resignation was his preference. She went on to state that if she did not hear from him by then she would assume that he wished to proceed to resign on the basis communicated to her by his union representative. 

The Complainant spoke with the HR manager on the 3^rd of December 2015. In this telephone conversation he advised the HR manager that he was a mental and physical wreck. There was no reference to him resigning. He advised he would not hand in his notice. The HR manager indicated in that phone call that they should leave things for now and that she would be in contact again. 

The next contact from the Respondent was the letter dismissing him 7^th of December 2015. That letter made particular reference to the Complainant having received “a clean bill of health”. 

The Complainant’s case is that the Respondent knew by means of the medical reports received that the Complainant was suffering from extreme anxiety. The failure by the Respondent to investigate his allegations of bullying and harassment and to consign them to past history caused him further anxiety. He was not in a position to return to work and was on certified sick leave when his employment was terminated. 

The last correspondence to the Respondent from the company doctor was the 30^th of September 2015. 

Respondent’s Submission and Presentation: 

The Respondent’s position is that the Complainant continued to absent himself from work despite being medically certified as fit to work. 

The Respondent had no reasonable alternative but to treat the employment contract as frustrated. 

The Respondent did not agree that it dismissed the Complainant from his employment. 

The HR manager confirmed that she reviewed her notes and her file and never received the medical certificate dated 30th of October 2015 and the first time she had sight of it was after the hearing of the complaint.

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.

Section 6 of the Unfair Dismissals Act 1977 sets out 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 were substantial grounds justifying the dismissal. 

I find that the Respondent did dismiss the Complainant. I don’t accept the frustration of contract argument made by the Respondent. 

The letter of the Respondent dated the 7^th of December 2015 bears no relationship with the contents of the telephone call with the Complainant on the 3^rd of December 2015. 

The HR manager was on notice in that telephone call and made a note that the Complainant stated twice that he was a physical and mental wreck and that he was sneaking sleeping tablets from his father. He stated that he wasn’t going to resign. The telephone conversation ended with the HR Manager saying that the Complainant should leave things for now and that the HR manager would be in contact again soon. 

I don’t accept that the letter of the Respondent 7^th of December 2015 could be described as how a reasonable employer would act in similar circumstances. 

I appreciate that the HR manager was in a difficult position in that she had a staff member out on sick leave for six months and had a report dated 30^th of September 2015 from the company doctor regarding the employee being in a position to return to work. 

However, I was provided with a further medical certificate which post-dated that letter from the company doctor 30^th of September 2015. That medical certificate stated “remains unfit to work”. 

Considering 

(a) the Complainant’s length of service with the Respondent namely fifteen years and the medical diagnosis of anxiety and exhibited erratic behaviour of the Complainant in advising that he was resigning and later denying that he would

 and 

(b) the fact that the Complainant at no stage in the period May to December 2015 had submitted independent medical certificates but always dealt with the company doctor 

I am of the opinion that the employer did not act reasonably in failing to contact its own doctor especially following the telephone call of the 3^rd December 2015 to ascertain if the Complainant had been in contact with her. An up to date medical report should have been obtained from the company doctor before the disciplinary process embarked upon to terminate the Complainant’s employment.

 Therefore I find that the Complainant was unfairly dismissed. 

Compensation is the correct redress in the circumstances and as the Complainant has not incurred any financial loss attributable to dismissal due to the fact that he has not returned to work and is unable to return to work due to disability. I am cognisant of the fact that the Complainant should have submitted up to date medical certificates in a proper and timely manner. Even the certificate that is in dispute as to whether it was submitted or not submitted to the Respondent was out of date at the time of the start of December 2015. Therefore I am awarding the Complainant the sum of for weeks payment as just and equitable having regard to the circumstances which amounts to €1,868.96. 

Dated:   05 April 2017