Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00006339-001

08/08/2016

The   Complainant is a Postman, who had commenced sick leave on 18 July 2012. On 26   February 2016, he was dismissed by the Respondent; a Postal Service .The   complainant submitted a complaint to the WRC on 8 August 2016 that he had   been unfairly dismissed.

The case was first listed for Dublin in January 2017 and was   subsequently reassigned to 24 March 2017 in ease of the complainant.

The complainant had detailed that there were parallel   Personal Injury proceedings currently before the High Court. I asked the   parties whether they anticipated any difficulties in advancing the instant   case and I was assured that both parties were agreeable to outlining the case   from their particular perspectives. The Representative for the complainant   subsequently submitted a written submission and a copy of the Statement of Claim   which was then copied to the respondent. No further submissions were received.

The Respondent operates a Postal Service and employed the   complainant on casual service in December 2003 and subsequently as a Postman.   He was dismissed on 4 March,2016,to include notice for the substantial ground of

“Failure to fulfil the terms of this contract due to   persistent non attendance”.

The Complainant had been absent on paid sick leave for   almost 4 years from 18 July 2012 to the date of dismissal.

The Respondent submitted that the time period relevant for   the Dismissal spanned 2012 to 2016.

The respondent   confirmed that the complainant had lodged a Personal Injuries claim   (workplace stress) against the company in respect of events which pre dated   this claim.

Counsel for the respondent outlined the background to the case :

The respondent submitted that the complainant claimed to   have suffered bullying arising out of a change in his delivery route since   2009. He had a level of absence of 65.5 days from 24 February2009 to 3 July   2012. The respondent had accommodated him through indoor duties, day duties   and counter work .The complainant commenced sick leave on 18 July 2012 and   did not return to work.

The respondent opened a log of key dates which catalogued   the interaction between the company from 26 March 2012 to the outcome of the   appeal of the dismissal on 18 February 2016 .The respondent outlined that the company   had been unsuccessful in securing an engagement from the complainant in   relation to his absence from work over the course of 18 occasions , which then   led to the activation of the company   Disciplinary Procedure inclusive of notification of consideration of   dismissal in January 2015.

The respondent made a detailed submission on the record of   interaction between the company and the complainants appointed Solicitor. The   respondent had been in ongoing contact with the complainants Solicitor and   received a submitted GP medical report   for the complainant dated January 7 ,   2015, which stated that :

1 It would be impossible for the complainant to return to work   “ while the present work conditions are in place “

The complainants Solicitor sought suggestions for what   might be available for his client? .The company offered to place the disciplinary action on hold and   to set up a meeting between the HR Manager ,( Mr HR) and the complainant to address these suggestions . This meeting   did not materialise as they was no response from the complainant.

The respondent wrote to the complainant on 25 August, 2015   informing him that the company had no alternative but to advance the   disciplinary procedure by way of a recommendation for his dismissal. There   was no response from the complainant , and the complainant was dismissed on   10 November ,2015 on the grounds of

“ failure to fulfil the terms of your contract of employment   as a result of your non attendance in the workplace, based on the fact that   your continued absence from work in circumstances where the company has made   many attempts to facilitate you in a return to work with the support of the   Occupational Health Service “.

The complainant was offered the option of an oral appeal   hearing in addition to or as an alternative to furnishing a written explanation.  

Solicitor for the complainant lodged an appeal on 17   November, 2015, which was considered by Ms HRM1, Acting Head of Employee   Relations and the dismissal was upheld. The grounds of appeal had not stated   that a medical review was in existence such as to prevent either a return to   work or an engagement with the respondent.

The Respondent submitted that by providing Occupational   Health Support in the form of Nurse contact initially followed by the company   Occupational Health Physician, this amounted to a sufficient compliance of   any standard that the law requires .The respondent contended that it could   not be the position in Irish law that it must go further to secure the   workers physical attendance with these services.

The Respondent submitted that the decision taken to   dismiss the complainant came within the range of reasonable responses open to   the company, which also “demonstrated a level of patience, fairness and   facilitation not expected or required of an employer”.

The Respondent relied on a Scottish ( Inner Sessions)   Judgement on appeal from a UK EAT :

BS V Dundee City   Council [2014] IRLR 131, and applied a three themes test to the instant case.

1 The employer must ask the question how long it can wait   for the worker to recover. The Respondent waited almost four years, whilst   providing paid sick leave.

2 The workers views are relevant and can indicate both   positively and negatively towards dismissal .The Respondent did everything   reasonably necessary to ascertain the complainant’s views, but he did not say   he would soon be well.

3 The Employer should inform itself on the medical   position and can accept medical advice presented .It is not required to   pursue medical evidence.

The Respondent submitted that the dismissal was fair in   accordance with the standards set by the High   Court in Bolger V Showerings ltd[ 1990] ELR 184

The Respondent contended that the complainant had not   separated the parallel proceedings currently before the High Court from his   duty to fulfil his contract. The complainant repeatedly claimed that he would   return to work if his working conditions were changed.

Evidence of Mr   Human Resource 1 ( Mr HR 1)

Mr HR 1 stated that the complainant had not demonstrated   any co-operation with the company procedures. His decision to dismiss the   complainant on this and the absence of any change in attitude by the   complainant .The complainant had   passed the threshold for a reasonable amount of sick leave .He had been   offered alternative work inside , at the counter at the processing plant ,but   did not take it up . The complainant was invited to participate in the   process leading to consideration of   his dismissal , but he did not engage .In response to questions from the   Adjudicator , Mr HR 1 confirmed that the complainant would be in receipt of   pension at age 66 .

Evidence of   Director of Employee Relations. Ms HRM 1

Ms HRM 1 gave evidence of 20 years experience in Human   Resources and Industrial Relations .She managed the appeal and worked off a   referral from Mr HR 2 (Operational Hr), a copy of the file and the grounds of   appeal. An appeal hearing is normally by oral submission, but Ms HR 1 knew   the complainant was not going to be in attendance.

She knew the Operational Hr Manager to be a compassionate   Hr Manager. She stated that she had no involvement in the case before the appeal.

She told the hearing that it was company Hr practice to   follow the advice given by the Chief Medical Officer. If there was no   evidence of Psychological /medical collateral, the procedure informed a   managed return to work post sick leave.

Ms HRM 1 stated that she did not have sight of the Legal   file held by the company in preparation of the PI claim. She stated that if   there had been a Psychiatric Report available, she would have consulted the CMO   .The complainant was paid full pay from 18 July 2012. The complainant had not   made an application for Permanent Ill Health pension. He had to be replaced   during his absence.

During cross examination, Solicitor for the complainant asked   Ms HRM about the GP report dated 29 April 2014?Ms HRM confirmed that she had   seen the report but did not form a view based on one letter .She considered   the entire file . She had not consulted with Dr OHD. The complainant had been   invited to appear for the appeal but he submitted grounds of appeal in   writing via his Solicitor.

Evidence of Dr OHD ( Occupational Health Physician   /Chief Medical Officer )

Dr OHD recalled receiving a referral from the Operational   Human Resource Manager in August 2012.Users of the service is referred to as   clients/employees but not as patients. He was aware that the complainant   reported being overloaded at work. He had not signed the consent form to   release information from his treating Doctors and Dr OHD stated that the   complainant “was not co-operating with our processes”. Consent followed in   January 2013 linked to GP information release only but not that of the Specialist.   Dr OHD received a report from the Complainants GP dated 4 December 2013 stating   that the complainant was physically and psychologically well. This prompted   him to share this information with the Operational Hr Manager with a view to   scoping out a return to work for the complainant.

Dr OHD had arranged to travel to the complainant’s home   city to review him in August 2014 and the complainant rang the Dublin office   on the morning of the consultation to indicate he was unavailable to attend. Dr   OHD deemed the complainant fit to work indoors. He was constrained from   seeking collateral information from other Specialists as the consent   submitted by the complainant only covered his GP.

In response to the complainants Solicitors questions, Dr   OHD confirmed that he had not had cause to review the complainant on   psychiatric grounds as the report he had received from his GP indicated that   he was mentally and physically well.

Dr OHD confirmed for the hearing that any application for   retirement on grounds of ill health required a separate assessment and a   Specialist Report. He had no involvement in this .He did tell the hearing that   the complainant had not sought to make another appointment following the   August 2014 no show.

The Solicitor for the Complainant outlined the claim for   Unfair Dismissal .He submitted that due to bullying, harassment, oppressive   and unreasonable treatment in his workplace, the complainant suffered an   acute breakdown of his health leading to a continuing deterioration. The Respondent   was aware of this and had the complainant medically examined by the Chief   Medical Officer who continued to liaise with the company.

The Representative for the Complainant stated that the   complainant suffered from an Adjustment disorder with secondary physical symptoms.   He also submitted that there was a disconnect in how the company had addressed   the PI claim versus the Human Resource management of the case. He contended   that the company was in full possession of the medical evidence which was   submitted in support of the PI claim and thus the company was on notice of   the complainant’s mental health status, which in turn should have prompted a   more probative approach. He submitted that the company should have known that   he complainant was attending a Psychiatrist .The company ought to have asked   whether the complainant was fit to return to work.

The complainant fully engaged with the respondent in a   meaningful way .The respondent despite knowing or ought to have known how the   applicant could have been accommodated, rather than meaningfully engage with   the applicant and ignoring the correspondence between them and his legal   advisors/GP proceeded to dismiss him .The Complainant’s representative maintained   that the complainant should have been asked about alternative placings within   the company.

Notwithstanding the submissions in support of the appeal,   the decision to dismiss was affirmed .Independent medical expert opinion was   always available to the company.

The complainant was unable to work post dismissal and was   living on an Invalidity Pension. No evidence of loss or mitigation was submitted.

Evidence of the Complainant :

The complainant confirmed that he couldn’t engage with the   respondent due to a psychological detachment .He described his condition as   the “Lights being on …..” He found it easier to deal with his own Doctor but   stated that he had suffered due to his condition.

The complainant told the hearing that he was aware of the   role of the company doctor .He understood that if he was ill the company   doctor would “look after you”. He stated that he had not been treated favourably   by Dr OHD as during an early consultation he was informed that he was only to   answer the Drs questions rather than ask his own questions .When he became ill,   he went to see the Nurses in 2012, he believed that he had been thrown around   on the postal routes, but believed that he should have been referred to Dr OHD.   He always told the Nurses that he wasn’t well.

In response to questions from the Respondent counsel, he   described a “Physical Out of Body Experience” during the period of sick leave   from 2012.He received medical certs from his Doctor and submitted these , he   was not aware of Medical Reports .He did not know what his GP was writing about him but   he trusted him .

He did not recall a lot about the time leading up to his dismissal.   He had no recollection of being offered work in cleaning. He was ill and   understood that he had to get well .He believed it easier if DR OHD came to   see him, but was unable to meet with him when he did come to see him .He   thought no more about it.

He attended for Counselling and he understood that his GP   suggested that the GP Practice Surgery be used as a meeting place for his   meeting with DR OHD. He had hoped for a better work environment. He denied feigning   an appreciation that he did not understand the events as they arose. He   confirmed that he had not raised a formal grievance in relation to his   working conditions and he had lost trust in the company.

The complainant’s representative concluded by stating that   the complainant’s ongoing organic physical and deep rooted psychological   problems hindered his capacity to engage with the company. The company knew   this. The complainant’s GP endorsed this position.

I have listened carefully to   the submissions of the parties and I have considered the evidence adduced in   addition to the written submissions.

The law on Unfair dismissal is outlined in Section 6 of the Act.

6

6. — (1) Subject to the provisions of this section,   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.

Section 6(4) (4) Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

( a) the capability, competence or   qualifications of the employee for performing work of the kind which he was   employed by the employer to do,

( b) the conduct of the employee,

The Burden of proof is on the respondent to demonstrate that the   reason for dismissal is due to one of the matters specified in Section 6(4)   or some other substantial reason. It is not the role of the Adjudicator to   critique the actions of the respondent; rather I must decide whether the   decision taken to dismiss the complainant fell within a range of reasonable responses   open to the respondent?

In considering this case, I was fully aware of the pre-existence of   the Personal Injuries Case, lodged in 2011. Neither Party referred to the   substance of the case during the hearing. I accept that the complainant is   entitled to receive a decision in his Unfair Dismissal case.

However, I formed the view in   the early stages of my consideration of the facts of the case that this case   was overshadowed by the Personal Injuries case, which was lodged first in time.   I am mindful of the recent Court of Appeal finding in Culkin V Sligo County Council [2017] IECA 104 CA IRL, where   Justice Hogan found that that a subsequent Personal Injuries claim was not   compromised by an existing unsuccessful equality claim. However, I found that   the instant case was overshadowed by the silent entity of the personal   injuries case.

I say this primarily due to the approach adopted by the complainant   side in the case.

As I listened firstly to the respondents outline of the case , I was   struck by the persistently high level of contact time engaged in and recorded by the Respondent staff involved in the case .I was struck by the   diligence of the records maintained and the skill demonstrated in management   of this long term absence.

While I did not have sight of the Management of Attendance Policy, I   accept that the company engaged in a supportive management of attendance from   July 2012. However, most of all , I   noticed that considerable time and space was permitted in which to grow a   return to work for the complainant , which even incorporated in a relaxation of the disciplinary procedural   schedule in June 2015 to explore a scoping out the potential for a return to work .

I began to understand the difficulties faced by the complainant as he   shared his evidence with the hearing. It was clear to me that the complainant   formed the view that the role of Occupational Health Department was something   he was uncomfortable with from an early stage in his 2012 -2015 absence.

In particular, I was struck by   the partial consent to release information from his treating team to the   Occupational Health Team. I have decided that this was a missed opportunity   in the face of both parties having an early shared goal of getting the complainant   back to work .I also found a level of secrecy around this information link up   that goes to the root of the case.

I appreciate that a parallel personal injury case was underway   throughout the life time of this case and I considered the submissions made   by the complainant’s representative that the details of mental distress   suffered by his client were in possession of the company’s legal dept. which should in turn inform employment   matters

While this very well might be the case, I find that there was an   obligation on the complainant to navigate through the parallel proceedings so   as to submit what ever information was relevant at the relevant time to the   relevant party if it was to assist .I found no evidence of a Consultant   Psychiatrist report such as the complainants representative insisted should   have been in being. Given the restrictions placed on the release of   information outside GP reports, I can only assume that this information may   have properly been in the hands of the complainant side.

While I accept that the   evidence given by the complainant pointed to a very frail and distressed individual   who expressed a strong disconnect with his workplace, I did not accept his “stalled   and not restarted “approach which he adopted with Occupational Health Department   and his Management team was either fair or useful .I   asked the complainant whether he had sought to reschedule the Occupational   Health Consultation when he cancelled the appointment in August 2014? He had not.

I also inquired whether the complainant had made an application for   ill health retirement. , he had not. I very taken aback by the fragility of   the complainant and I were happy to accommodate his need for frequent breaks   during the course of the hearing.

I did not meet the   Complainant’s Doctor, but I considered his medical reports, the last of which   was submitted in support of the appeal dated 30 December, 2014. I accept that   these documents do not have probative value but they give a viewpoint, at least.   The complainant’s Doctor was not in a position to recommend a return to work   for him at that point due to an unspecified reference to “the present   circumstances in the workplace”. On the other hand, I heard very cogent   evidence from the respondent Occupational Health Physician who recounted an   extensive episode of Support and Direction offered to the complainant from   2012 onwards which was accompanied by a sense of surprise that this level of   support and direction was not accepted by the complainant. I found that the   Respondent Occupational Health Department adopted a highly pro active   approach in this case and were held back by the partial release of Specialist   Medical Details, which remained with the complainant.

I have, therefore, formed the view that the Personal Injuries case   became the sub plot in this case and may well have served as a point of   confusion for the complainant. I detected from his evidence that he was   unsure just where to focus his efforts in relation to his workplace .It   struck me that he was not a real time participant in his own case.

I considered the antecedent events which occurred prior to the   decision taken to dismiss the complainant. I found that the company gave an   extended period of time to the complainant to submit a document or present in   person to influence the decision making in relation to activation of the   disciplinary code. The complainant responded in seeking to scope out   suggestions for the way forward but did not respond when the company reached   out to the complainant on June 3, 2015 by way of offering “one further “meeting   at local level. I found this lack of response understandably corralled the   respondent into the decision making process that lead to dismissal. There was   no evidence submitted of the complainant’s     consideration of these key invitations. The complainant was given over   a month’s notice that his dismissal was being actively recommended, without   submitting points for consideration.

I found it unusual that the Respondent did not hold a formal hearing   to co-inside with the decision taken to dismiss an employee .I would have   preferred to see such a hearing occur but accept that a formal hearing was   offered in advance of and in the aftermath of the decision taken to dismiss   the complainant at Appeal .Neither invitations were responded to in seeking   an oral hearing. The Complainant based his submissions on written format.

I have considered the case law advanced by the Respondent.   In terms of the Scottish Inner Session case of BS V Dundee City Council, on appeal from the UK EAT I noted some   exceptions to the application. The claimant in that case had stated family   problems and a query around a criminal offence at the early stages. The   marked difference was that BS was recorded as being fully participant in the   company procedures and was not a candidate for ill health retirement. I can   however appreciate the persuasive authority in the case where it relied on   past case law to guide a concurrent approach to deciding what was fair and   reasonable when in the case of long term absence ( over 1 year) “ There was   no day light at the end of the tunnel” , i.e.   No confirmed return to work date available.

“Three   important themes emerge from the decisions in Spencer V Paragon Wallpaper ltd [1977] ICR 301   and Daubney.

First, in a case where an employee has been   absent from work for some time owing to sickness, it is essential to consider   the question of whether the employer can be expected to wait longer.   Secondly, there is a need to consult the employee and take his views into   account. We would emphasize, however, that this is a factor that can operate   both for and against dismissal. If the employee states that he is anxious to   return to work as soon as he can and hopes that he will be able to do so in   the near future, that operates in his favour; if, on the other hand he states   that he is no better and does not know when he can return to work, that is a   significant factor operating against him. Thirdly, there is a need to take   steps to discover the employee's medical condition and his likely prognosis,   but this merely requires the obtaining of proper medical advice; it does not   require the employer to pursue detailed medical examination; all that the   employer requires to do is to ensure that the correct question is asked and   answered.”

I found this   excerpt to be some what limiting in terms of the instant case where the role   of Occupational Health was an early player and together with the management team adopted a   fair and reasonable “ wait and see “ approach for as long as possible .

The respondent   submitted that the respondent in this case had waited long enough for the   complainant to engage and could not to reasonably expected to wait any longer   .It was clear that the company did not have a Uniform cut off date or an absentee   tolerance level .I accept that the company remained opened to persuasion by   the complainant and his Medical Team and this information was simply not forthcoming.

The reason for dismissal,   not remedied on appeal pointed in part to the complainant’s conduct rather   than his incapacity for work alone.

In Bolger V Showerings ( Ireland) ltd [1990] ELR 184 ,in the case of a Fork lift Driver ,whose GP sent a note   stating that the complainant felt unable to undertake his previous job at any   time into the future and that tests were awaited .Lardner J at the High Court   , set a test for the employer to demonstrate that the dismissal was fair

1 Was Ill   Health the reason for Dismissal?

2 This was the   substantial reason

3 That the   employee received fair notice that the   question of his dismissal for incapacity was being considered

4 That the   employee was offered an opportunity to be heard

I have   established that ill health was a partial reason for dismissal, the issue of   the complainant’s apparent non co-operation with company procedures   co-existed with this reason. These were substantial reasons.

I am satisfied   that the complainant was on sufficient and clear notice that his job was at risk due to his   incapacity and his apparent lack of engagement in a rehabilitative return to work over the course of   2012-2016.

I am satisfied   that the complainant was offered an opportunity to be heard and chose not to   accept the multiple invitations. I also found that the Respondent presented a   number of creative options to explore a veritable return to work. I found   that the complainant was not sufficiently participant in his own case so as   to influence his fate and refrained unreasonably from a total engagement   process with the company Occupational Health Department.

In conclusion I   have found that the Respondent had the substantial reasons of Incapacity and   Lack of engagement in the company procedures of rehabilitative return to work   as the reasons for dismissal. I find that the decision taken to dismiss the complainant,   while regrettable and very unfortunate to be fair in all the circumstances.

Decision:

Section 8 of the Unfair   Dismissals Acts, 1977 – 2015 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.

I have found that the   complainant was not unfairly dismissed.

Claim For Unfair Dismissal