EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD320/2015
MN156/2015
CLAIM(S) OF:
Graham Carter
-claimant
against
Brink's Ireland Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this claim at Cork on 3rd October 2016 and 4th October 2016
Representation:
Claimant: Mr. Justin Condon B.L. instructed by Murphy English & Co, 33/34 Cook Street, Cork
Respondent: IBEC, Knockrea House, Douglas Road, Cork
The determination of the Tribunal was as follows:-
The claim before the Tribunal was one of constructive dismissal.
Preliminary Issue:
The Tribunal was asked to rule on whether the settlement in the personal injury proceedings reached on 16 January 2016 included a sum for loss of earnings in respect of the post dismissal period.
The Evidence
The claimant instituted a personal injuries action against the respondent arising from two accidents he suffered in the course of his work. The claimant resigned from his employment with the respondent on 13 November 2014 and considered that he was constructively dismissed as the respondent had, over a substantial period, refused to allow him to return to work although he had been certified fit for work. The personal injuries action was settled between the parties on 16 January 2016. Although the unfair dismissal had been instituted long prior to 16 January 2016 it was not raised in the settlement discussions. The settlement was not reduced to writing. There was a confidentiality term in the agreement.
The claimant’s solicitor’s evidence was that he had advised the claimant at the time of the settlement discussions that the criteria for compensation for loss of earnings in a personal injuries action is that an individual must be unfit for work. The solicitor accepted that a paper claim was made for loss of earnings but he advised his client that there was no “real chance” a court would make an award in respect of the post dismissal period when he had been certified fit for work. The solicitor’s evidence, based on the handwritten notes he had made at the time of the settlement discussions, was that he had advised the claimant that the loss of earnings to the date of dismissal was €50-€60K and he could expect an award of €100k for general damages as well as the point already mentioned that there was no reality to maintaining the loss of earnings claim since the date of dismissal given that he was fit to work. An offer of €140k was made and he advised his client to accept this as there was no prospect of receiving special damages in court for future loss of earnings. The claim was settled on that basis.
It was the respondent’s case that as a paper claim was maintained then surely the settlement figure included a sum in respect of the post dismissal loss of earnings. It was further the respondent’s case that given the amount of the settlement it could only be presumed that it included compensation for future loss.
Determination on Preliminary Issue
The Tribunal finds, based on the claimant’s solicitor’s evidence on his discussion with the claimant at the time of the settlement talks and in particular in light of the reasons for the claimant’s resignation/constructive dismissal on 13 November 2014 that it is most likely that a claim for loss of earnings in respect of the post dismissal period was not included in the personal injuries settlement on 16 January 2016.
Substantive Case. Summary of Evidence
The claimant commenced employment as a cash-in-transit driver with the respondent in November 2007. Around 35employees worked in the branch.
On 24 October 2013, in the course of his work, the claimant sustained an injury to his lower back as he had to use force to slide a malfunctioning door to the vault and he was off work for around a week. There was a dispute as to whether the claimant reported this accident to the Branch Manager (BM).
On his return to work BM was in a position to facilitate the claimant’s request for light duties in the control room as another employee was on annual leave but on that employee’s return from leave the only role available for the claimant was as a member of a two-crew ATM run in a different van. He did not have to do the usual entering and exiting the van several times during the day or climb steps or lift bags of coins. However, the door of the van was stiff and on 7 November 2013 when exiting the van for a break he exacerbated the injury to his back. It was not the duties which he had been assigned that caused the injury but another defective door. He was hospitalised from 7 November until 9 November 2013 and submitted a number of medical certificates covering the period from 8th November to 2 February 2014. On or around 17 November 2013, the claimant initiated a personal injuries action against the respondent. BM completed the accident form on this accident, although normally the employee completes it but he was in a lot of pain. The respondent accepted liability in respect of the two accidents. The claimant had previously injured his back at work in 2008 and was out of work for three weeks at that stage.
The claimant submitted a medical certificate dated 8 January 2014 stating that although he was undergoing rehabilitation for his back problem he was fit to resume light duties. On receipt of this the respondent referred the claimant to the Employment Health Advisors Ltd. (EHA) for medical advice as to his fitness to return to work.
On 31 January 2014 Dr. K of EHA examined the claimant. She informed the respondent that a final decision on the claimant’s fitness to return to full duties was not possible until s/he had sight of the report of the consultant neurosurgeon (NS), who had examined the claimant.
However, a second report from Dr. K also dated 31 January 2014 was also before the Tribunal. The contents of both letters were identical except that the letter obtained by the claimant’s solicitor under a freedom of information request from the EHA contained an additional paragraph at its end, which stated:
“The claimant is fit for light duties at present which are not involving heavy lifting. He should also have his Manual Handling Training Course up-to date.”
SHR’s evidence to the Tribunal was that she had not seen the latter letter but that she was aware that the claimant had been certified fit for work. In an e-mail of 3 February 2013 to the respondent, the claimant indicated that he was looking forward to returning to work on light duties while undergoing rehabilitation. In another e-mail of even date the claimant informed the EHA that he would furnish a copy of NS’s report if it would reimburse him the €500 it had cost to obtain it.
On 4 February 2013 the respondent’s Senior HR Officer (SHR) wrote to the EHA outlining that the claimant had been on the lightest duties available (driving a van) when he hurt his back opening the van door on 7 November. SHR sought clarification on the claimant’s fitness to carry out light duties and also sought confirmation as to whether he could return to work as a driver which entailed opening and closing van doors. In cross-examination SHR accepted that she had not mentioned in her letter to EHA that the claimant had sustained his second injury on 7 November due to a defective door and explained that her concern was to find out from the doctor what duties the claimant could carry out.
SHR also wrote to the claimant on 4 & 5 February 2014 seeking his consent to obtain a medical report from his doctor as given the contents of his doctor’s certificate of 28 January 2014 (see above) she wanted to properly assess his fitness to work and to identify such light duties as his doctor considered appropriate and to examine whether there were any reasonable adjustments the company could make that would assist the claimant when carrying out such light duties. By letter of 11 February 2014 the claimant’s solicitor replied stating that it was not appropriate to accede to the request in circumstances where the claimant had issued proceedings against the company in relation to the accident. SHR replied, clarifying that the report was not sought in relation to proceedings against the company but rather for the claimant’s own benefit.
The claimant wrote to the respondent on 5 March 2014 seeking a date when he could return to work on light duties and outlined that he was willing to attend to any duties such as frontline maintenance, driving or administrative duties. In her response SHR pointed out that the EHA was unable to finalise its report or give recommendations without access to NS’s report. The respondent was concerned to ensure it took all precautionary measures to avoid exacerbating the claimant’s condition. The report of NS was ultimately furnished by the Personal Injuries Board in early March 2014 and the respondent forwarded it to EHA.
On 21 March 2014, Dr. H (of EHA) reported that the claimant was continuing to experience lower back pain especially with movement and that “any twisting activity or lifting activity can aggravate his symptoms.” Dr. H’s opinion was that the claimant would be fit to return to work on a phased basis, starting on reduced hours and lighter duties on his return, which should be increased gradually over 3-4 weeks. She also reported that NS’s opinion was that the claimant’s mixed duties with periods of walking, bending and lifting would be encouraged but advised that the claimant should avoid heavy or repetitive twisting or lifting for the future. His opinion was that the claimant’s symptoms should slowly reduce over three to six months and that he should manage work then. Dr. H recommended that someone with health and safety training should carry out a formal risk assessment. However the risk assessment was not carried out by the respondent as the member of staff tasked with this left the company and “it fell through the cracks”.
On 27 March 2014 SHR wrote to Dr. H explaining that the company still had a difficulty because the second incident had occurred when the claimant had been assigned the lightest duties available for a driver which involved driving and opening and closing the doors of the vehicle cash-in–transit drivers. SHR did not mention in her letter that the second injury was also caused by a defective door. SHR enclosed BM’s description of the duties of a cash-in-transit driver. The e-mail outlined that there are three separate compartments in the van, each having heavy duty doors and the outer door which is the heaviest (in some vans this opens automatically and in others it is operated by lever and pull), space is very limited and there is lots of bending and twisting which is repeated several times each day.
The claimant wrote to the company on the 28 March 2014, once again stating that he could not understand why he was being prevented from returning to work on light duties. On 8 April Dr. H in reply to SHR stated that if there was no alternative but for the claimant to return to work as a cash-in-transit driver then it would still be reasonable for the company to pursue a formal risk assessment. She also advised that it would be reasonable for the respondent to explore whether the claimant could be assigned to an alternative role at work and if one could be identified she would determine whether it was suitable or whether a risk assessment was necessary. In his letter of 28 April 2014 to SHR the claimant referred to his doctor’s and Dr. H’s confirmation that he was fit to return to light duties. He further indicated that he did not accept BM’s position that light duties were not available or his description of his duties.
In late September 2014 the claimant applied for the position of relief supervisor in Cork following the resignation of a colleague but was unsuccessful. The interview was conducted by the Branch Manager (BM). When the claimant indicated that he could perform the 15 different aspects of the position, as listed on a sheet, BM laughed at him. The notification of the result to the claimant did not outline either that he was unsuitable for the role or that he did not have the required qualification.
BM’s evidence was that he had a good relationship with the claimant, who was a very good worker. The claimant had been shortlisted for interview and was one of five people interviewed for the position of relief supervisor. The claimant was the most senior applicant on the day as he had two or three more years’ service but he did not have vault experience. BM in consultation with two supervisors selected the successful candidate, who was an employee from the control room who had less than two years service with the respondent. The successful candidate had the required skill set for the role. BM refuted that he had laughed at the claimant during the interview. The claimant did not raise a grievance regarding the process or selection. Vans are reviewed every 6/8 weeks. Mechanical faults are recorded by the drivers in the route sheet which are returned to the control room. BM’s further evidence to the Tribunal was that the respondent does not have designated light duty roles. His position was that an employer could not have one member of a two-man crew doing all the heavy work. BM was not qualified to do a risk assessment.
In a letter of 4 November 2014 to SHR, the claimant set out his experience of the interview, informed her that a Social Welfare doctor had declared him fit for work and that he would be removed from illness benefit. He also informed her that he concluded that the company had not allowed him to return to the position he held prior to the accident and that in selecting another employee for the position of relief supervisor the respondent had refused to accommodate him in an alternative position. He felt that there was a deliberate campaign to force him into a position where he had no option but to resign. The claimant put the respondent on notice that if it did not confirm to him by 12 November 2014 that he could return to work, he would have no option but to resign. It was the claimant’s evidence that by then he could have carried out the full role. It was the claimant’s evidence to the Tribunal that light duties were available but as the months passed the company made no effort to offer him alternative work. The respondent did not reply to his letter.
On 13 November 2014 the claimant, not having received a response from the respondent, wrote to SHR stating that he had no option but to resign from the employment. SHR accepted the claimant’s resignation and outlined to the claimant that the successful candidate for the role of relief supervisor was the person with the most experience relevant to the needs of the business rather than a refusal to accommodate him.
SHR’s position was that if the claimant could safely resume employment she would have allowed him back to work without hesitation. In relation to Dr. H’s advice that the claimant was fit to return on a phased basis on reduced hours and lighter duties, it was SHR’s evidence that BM had told her that there was no such thing as “a phased basis” and that every position involved lifting and twisting.
A former employee (FE) who had been a cash-in–transit driver for the respondent for twelve years gave evidence on behalf of the claimant. It was his evidence that he occasionally lifted some coin bags and otherwise there was no major physicality to the role. Normally the two men crews split their functions for the day. He accepted that it might not have been possible that the claimant would have driving duties only. The claimant accepted that the tachograph rules had to be adhered to when carrying out the driving role.
FE considered frontline maintenance to be an alternative duty available in the company. He also outlined that there were light duties carried out in the control room such as monitoring and work with coins. It was his opinion that these duties were easier than the cash-in-transit role. In addition he outlined that a relief supervisor would only work an occasional shift in the van if someone was ill but otherwise the supervisor was based in the control room.
Determination
In section 1 of the Unfair Dismissals Act 1977 constructive dismissal is defined as:
“the termination by the employee of his contract of employment with this employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”
Thus, in applying the reasonableness test to a constructive dismissal claim, the conduct of the employer and reasonableness of the employee’s response is examined.
Clause 12 of the claimant’s contract of employment set out that the terms and conditions of the claimant’s employment including inter alia disciplinary procedures and grievance procedures are governed by the company-union agreement.
From late January 2014 up until late April 2014 the claimant was seeking to return to work on light duties. His doctor and the company doctor had provided qualified recommendations for a return to work. While NS (the consultant neurosurgeon) encouraged mixed duties with periods of walking, bending and lifting he advised that the claimant should avoid heavy or repetitive twisting or lifting for the future. The respondent’s position was that it did not have designated light work. This was not accepted by the claimant. The respondent did not carry out a work assessment as recommended by its doctor. This was the third back injury the claimant had sustained in the course of his work with the respondent and an earlier injury in 2011 eventually impacted on his back and he was absent from work. For a period of around five months from late April 2014 there was no contact between the parties. During this period and up to mid November 2014 the claimant continued to receive illness benefit from Social Welfare. The members of the Tribunal had different views on the issue of the selection of the relief supervisor.
Being mindful that this was a constructive dismissal claim and having considered the issues outlined in the previous paragraph and the evidence adduced the Tribunal feels that the matters may have been resolved had the claimant invoked the grievance procedure with the assistance of his trade union. Whether they would or not is not the issue. The Tribunal finds that the claimant’s failure in this case to invoke the grievance procedure was a failure to act reasonably as required by section 1 of the Act. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 fails. As the claimant resigned from the employment the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, must also fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)