Complainant

Respondent

Anonymised Parties

An Employee

A Manufacturing Company

Representatives

Solicitors

IBEC

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-00010270-001

16/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010270-002

16/03/2017

The Complainant commenced employment with the Respondent in October 2013, as an Operator on a production line.

The Complainant suffered a back injury at work in November 2015. The Respondent made modifications to the Complainant's workstation. The Complainant returned to work in March 2016 and subsequently injured his back again on 30 March 2016.

Apart from a short period between 23 May and 10 June 2016, the Complainant was absent from work on certified sick leave from 30 March 2016 to 19 December 2016.

In November 2016, the Complainant attended a Consultant Spinal Surgeon, who advised him that he was ready for a phased return to work on light duties. The Complainant also attended the Respondent's Occupational Health Physician (OHP) on 16 December 2016. The OHP, who was aware of the recommendation of the Consultant Spinal Surgeon, advised that the Complainant could return to work on 19 December 2016 on light duties on a gradual basis.

The OHP recommended that the Complainant should work 3.5 days during his first week, no work on the second week, as this coincides with the annual Christmas holidays, and for days during the third week.

In addition, doctor to doctor discussions took place between the OHP and the Complainant's GP on 16 December 2016. Following these discussions, the Complainant's GP issued the certificate confirming the Complainant fit to return to work on light duties.

On 19 December 2016, the Complainant presented for work. He met with his Area Manager who informed him that he would be returning to the workstation on which he previously worked. The Complainant was also advised that a support operator would be made available to him, initially for one day, but that this would be reviewed on a day to day basis. The Complainant refused to work on the assigned station contrary to the instructions of his Area Manager.

On 20 December 2016, the Complainant was issued with a written warning regarding his refusal to work on the station to which she had been assigned. The Complainant was advised that if he continue to refuse to work on that station he would be the subject of further disciplinary proceedings. The Complainant was again instructed to take up work on his assigned station but he refused to do so.

On 21 December 2016, the Complainant was issued with second written warning in which he was advised that if he persisted in his refusal to work on the assigned station that he would be suspended and would be liable for dismissal. The Occupational Health Unit nurse attended this meeting with the Complainant to address any medical concerns he had. Once again the Complainant refused to work the assigned station.

On 22 December 2016, the Complainant attended a further meeting with the Respondent's representatives at which he was issued with a final written warning. The Complainant again refused to attend at his assigned workstation. The Complainant was given one hour to further consider his position and was advised if he persisted in his refusal he would be suspended, on full pay, pending investigation. The Complainant was also advised during this meeting that his employment may be terminated if he persisted in this action.

A further meeting took place later that morning during which the Complainant restated his refusal to work at the assigned station. The Complainant was then suspended, on full pay, pending investigation.

The Respondent investigated the incident and met with the Complainant in late January 2017. The Complainant was accompanied by his Trade Union representative at this meeting. The Respondent also met with other parties involved in the matter. A report arising from this investigation issued to the Complainant and he was given an opportunity to comment, which he did on 17 February 2017.

The Investigation Report and the Complainant's reply to same were submitted to the Respondent's Manufacturing Manager for his recommendation. Having considered the matter, the Manufacturing Manager recommended termination of the Complainant's employment on the grounds of serious misconduct, i.e. insubordination stemming from his persistent failure and refusal to perform work assigned, as per Section 3.5 of the Company/Union Agreement in this regard.

All reports and the recommendation from the Manufacturing Manager were submitted to the Plant Manager for final decision. It was decided to terminate the Complainant's employment 24 February 2017 on grounds of serious misconduct.

In submissions on behalf of the Complainant, his legal representative stated that when he presented himself for work between 19 and 22 December 2016 he was advised that a support operator would be provided. It was contended that when the Complainant sought clarification as to the division of labour between himself and the support operator he was simply advised that that was a matter for him and the support operator.

It was further contended that the Complainant was told that he should perform all the duties on the workstation and he would be responsible for all the work performed on that station. It was contended on the Complainant's behalf that this was indicative of the Respondent's failure to accommodate him in his return to work and the lack of support provided to him.

It was stated in evidence that the complainant was trained to work in 22 workstations on the Respondent's production line. It was further contended that 14 of the 22 workstations on which the Complainant was trained would be considered to contain lighter duties than the workstation on which he was required to work.

Consequently, the Complainant contends that the Respondent failed or refused to consider alternative, lighter workstations despite his ability to work at those stations.

It was further contended that, despite numerous requests by the Complainant, neither the ergonomics assessment or the risk assessment conducted by the Respondent were provided to the Complainant. It was further stated that the Complainant was not in a position to respond to the argument of the Respondent in the absence of these documents. Furthermore, it was stated that the Complainant did not receive a copy of the correspondence or medical report from the OHP to the Respondent confirming that the Complainant was fit for work. Therefore, it was contended that the Complainant could not ascertain what duties the OHP had recommended for him.

In response to the Respondent's claim that he persistently refused to obey the instructions of his Area Manager, the Complainant stated that he advised the Respondent that his workstation did not involve light duties and that they had failed to show any evidence to the contrary. It was contended that the complainant repeatedly requested to be placed on an alternative workstation which involved lighter duties. However, the Complainant stated that the Respondent failed to accommodate this reasonable request.

In summary, it was contended on behalf of the Complainant that the Respondent failed to engage with him and addresses concerns in relation to his return to work. It was stated that the Respondent failed to accommodate the Complainant or offer alternative duties. The Complainant contends that the Respondent failed to consider alternatives to dismiss, therefore, the dismissal of the Complainant was disproportionate in the circumstances and he should be reinstated to his position.

The Respondent stated that the Complainant persistently refused to obey the instructions of his Area Manager and of company representatives over a 4 day period in December 2016. It was stated that during this time the Complainant was fully aware of the possible outcomes of his actions, yet he still persisted in his refusal to perform the work assigned.

The Respondent stated that it followed all procedures contained in the Company/Union Agreement required in the management of the situation they were faced with. In this regard, it was stated that appropriate representation was allowed at all meetings, the Complainant was given every opportunity to reconsider his position and he was fully aware of the consequences he would face if he persisted in his failure to comply with the Respondent's instructions.

The Respondent stated that, during the period in question, the Complainant received 3 warning letters concerning his persistent refusal to perform the work assigned to him. It was further stated that the Complainant was given every opportunity to address matters during his period of suspension, but orally and in writing.

The Respondent stated that an unbiased investigation was carried out. The Complainant's responses to the investigation findings were fully considered by the Manufacturing Manager before he came to a recommendation to dismiss the Complainant. All matters were again considered by the Plant Manager when arriving at his decision to terminate. Consequently it is contended on behalf of the Respondent that all procedures of natural justice were complied.

In addition, the Respondent contended that all medical matters were taken into consideration by the OHP when deciding to certify the Complainant as fit to return to work and in deciding the station to which he was assigned was suitable for him to work.

In this regard, the Respondent stated that the OHP, who is a member of the Faculty of Occupational Medicine and holds a Diploma in Musculosketal Injury Management, personally assessed the workstation in question and founded to be a "light station", which was more suited that other stations to the Complainant's alleged injuries.

It was further stated that the OHP arrived at his decision based on the fact that there was no overreaching, no persistent bending, no carrying of heavy loads, no pulling/pushing of heavy loads, nor repetitive/straining movements and that all manual tasks from the station were light. In this regard, the Respondent stated that no evidence to the contrary was provided by the Complainant or his representatives on his behalf.

It was submitted that the OHP advised the Complainant on 16 December 2016 that he was 100% fit to return to work after carrying out a final medical assessment. The OHP advised the Complainant that he would be returning to his previous workstation, on which a full ergonomics assessment had been carried out by the Respondent's Health and Safety Specialist.

It was stated that the Complainant was advised that his return would be on a phased basis, in line with the medical specialist opinion and that he would also be provided with the assistance of another operator on the station to facilitate his safe return to work. In this regard, the Respondent stated that the Complainant was initially incorrectly advised that the support would only be available for a day. However it was stated that this was subsequently clarified as being available until the end of his first week and then being subject to review to see if was required for a longer period.

The Respondent contends that despite all of the above, the Complainant still refused to attend the assigned workstation. In this regard it is contended that the Complainant's Area Manager met with him separately on the afternoon of 19 December 2017 when he asked him to commence work at the station. It was stated that the Complainant was provided with the required safety gear but he failed to commence any duties at the station.

It is contended that the Complainant was given four days to consider his position. It was also stated that he was clear as to what the consequences of his failure to commence his assigned work would be if he still persisted in his refusal to do so. It was contended that during the various meetings held with the Complainant that week he raised some medical questions and these were fully addressed by the OHU Nurse, who attended the meeting on 21 December 2016 and reiterated what already been advised to the Complainant by the OHP. The Respondent contends that this was sufficient to address all of the Complainant stated concern.

The Respondent stated that the station to which the Complaint was assigned was the most suitable for his alleged condition. Other stations were not "light stations" as the assigned one was. Consequently the Complainant's request to be assigned to another station could not be considered by the respondent at that time. During the oral hearing, the Respondent gave detailed evidence supporting the contention that there was no alternative workstation to which the Complainant could be moved.

In this regard, the Respondent stated that there are eighty (80) stations in the plant, of which the Complainant is only trained on fifteen (15). In evidence, the Respondent stated that the station assigned to the Complainant was considered lighter than seventy (70) of the other stations. In addition, the Respondent stated that due to the concept of "footprint", which governs the demarcation of certain stations by the Trade Union, no other station was available to the Complainant.

With regard to the station assigned to the Complainant, the Respondent stated in evidence during the oral hearing that significant modification, to the tune of €40,000, had been made to that station to eliminate the concerns being raised by the Complainant. Consequently, the Respondent stated that it did not have any other station that was more appropriate to accommodate the Complainant on his return than the one allocated.

It was further stated by the Respondent that while the Complainant was certified as fit to return to work on a phased basis, no reference was made in any medical report that he would require support operating station. However, given his long absence from work, it was decided by the Respondent to provide that support for a period of time so that he could ease himself into the work. However, the Respondent contended that despite this, the Complainant was unwilling to even attempt working on the station.

In this regard, the Respondent contended that during the investigation process, the Complainant made it absolutely clear that he would only work on any other station and that he would not work on the one to which he was assigned. The Respondent contends that this made absolutely no logical or medical sense as most of the other stations were not as light as the one assigned to him.

In summary, the Respondent requested that, in the light of the evidence presented, the decision to terminate the Complainant's employment on the grounds of serious misconduct should be upheld.

In considering a complaint of unfair dismissal, a number of factors or "tests" need to be considered. Firstly, it should be established whether or not there was sufficient grounds for the employer to initiate disciplinary action against the employee.

Secondly, any investigation/disciplinary process applied must be in accordance with the requirements of local policy/procedure and the broader concept of fair procedure/natural justice. Finally, consideration must be given to whether the sanction emanating from such a process falls within what might be considered a range of reasonable responses by the employer.

Having carefully considered the evidence adduced in this case, I am satisfied that that there was sufficient grounds for the Respondent to initiate an investigation and to place the Complainant on suspension, with pay, pending completion of that investigation.

The evidence clearly shows that the Complainant had been absent from work on sick leave for a period in excess of eight months. During that time, the Respondent had made a significant monetary investment in modifying the Complainant's workstation, in order to ensure that it was a low risk station which was compatible with the Complainant's previous medical condition and his return to work requirements.

The Complainant had been certified as fit to return to work on light duties by three separate medical practitioners. In addition, the Occupational Health Physician (OHP) had carried out a personal assessment of the workstation in question, prior to certifying that it met the medical requirements for the Complainant's return to work. The Respondent also provided the support of an additional colleague to work on the workstation with the Complainant for a period of time in order to ease him back into work following his long absence.

Despite all of the above, the Complainant refused, on a daily basis over a period of four days, to carry out his assigned duties on the workstation that had been specifically modified for him. Notwithstanding the repeated warnings from the Respondent and the daily escalation of the disciplinary procedures, the Complainant continued to ignore what can only be considered as the reasonable request of his employer to engage in the duties being assigned to him at that workstation.

Having carefully considered all the evidence adduced, I am satisfied that, in a context where he appears to have ignored the normal procedures which might be triggered in such circumstances, such as raising a formal grievance and/or working under protest, the Complainant's point blank refusal, four days in a row, to comply with the reasonable request of his supervisors, could only be considered as serious insubordination.

It is clear that the Complainant was not even willing to try the modified workstation and , in a context where he was clearly aware of the potential serious consequence of his action, his unwillingness in this regard is devoid of any objective logic or rationality.

Consequently, taking all the above into consideration, I am fully satisfied that the Respondent had good reason to initiate the disciplinary process in response to the Complainant's continued refusal to comply with a reasonable request, in a context where significant modification had been made to the workstation and where his return to work had been certified by qualified medical professionals and health and safety experts.

With regard to the second test, the evidence before me would suggest that the Respondent applied a careful and considered process, which meets the normal standards of fair procedure and natural justice. This is evidenced by the following:

> On each of four consecutive days the Complainant was clearly advised of the consequences of his continued refusal to carry out reasonable requests from his supervisors.  

> He was provided with ample opportunity to reconsider his position and comply with the instructions.

> He was provided with the right to representation at each stage of the process.

> There is clear demarcation between the roles of the person conducting the investigation, the member of management considering the investigation findings and the Complainant's response thereto and the person who confirmed the decision to dismiss.

In addition to fair process and procedure being applied, I am also satisfied that the final decision was consistent with the company/trade union agreement governing the disciplinary procedures.

Therefore, the final test for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances.

A finding of failure to carry out or refusal to perform work assigned to an employee is regarded as insubordination in the Respondent's disciplinary procedures. I am satisfied that this constitutes serious misconduct and presents reasonable grounds for summary dismissal of the Complainant under the Company's Disciplinary Procedure.

The evidence available to the Respondent, which was established by the investigation, clearly shows that the Complainant's actions were unreasonable and unwarranted in the circumstances and where he continued with his action despite him being clearly aware of the consequences this would have for his employment, the sanction of summary dismissal can only been seen as warranted and also as falling within what might be considered a range of reasonable responses by the Respondent.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows:

Unfair Dismissal (CA-00010270-001)

In relation to the Complainant's claim of unfair dismissal, I find the Respondent's decision to dismiss the Complainant to be fair and reasonable in the circumstances and, consequently, the Complainant's claim in this regard is not upheld.

Minimum Notice (CA-00010270-002)

The Complainant also made a claim under the Minimum Notice and Terms of Employment Act, 1973.

Section 8 of that Act states as follows:

"Nothing in this Act shall affect the right of any employer or employee to terminate the contract of employment without notice because of misconduct by the other party."

In a context where the Complainant's employment was terminated on the grounds of serious misconduct, I am satisfied that the above clause applies and find that the claim for minimum notice is not upheld.

Unfair Dismissal

Minimum Notice

Insubordination