ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005472

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

Date of Adjudication Hearing: 31/01/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

On the 18^th October 2016, the complainant lodged a complaint pursuant to the Industrial Relations Act regarding his dismissal, the subsequent over-turning of his dismissal and transfer to another company depot. The complainant is a skilled operative and the respondent is a large semi-state company.

In accordance with section 13 of the Industrial Relations Act, 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation

The complainant provided a written submission and was represented by his union. The complainant is appealing a decision that he be compulsorily transferred from his original workplace depot to another as an alternative to a dismissal decision. The complainant also wants the decision to dismiss him to be overturned.

The submission gave some background to the case. The complainant has worked in the organisation for almost 20 years and for the majority of time has worked in Depot A. The complainant's relationship with his manager began to deteriorate in 2008. In July 2014 the complainant went sick following an incident with his manager.   In January 2015 the complainant was contacted by the respondent and requested to return to work. The complainant did not return as he was on certified sick leave. The complainant was on sick leave in March 2015 when the respondent changed his status to unauthorised absence and refused to accept his doctor's certificates. The respondent then decided to deal with the complainant's absence as a disciplinary matter.

A meeting took place in November 2015 at which the complainant was represented by his union official. The union official highlighted the fact that the complainant had submitted three medical certs, all of which had been rejected by the respondent.

The complainant's submission went on to say that on 28^th April 2016 the complainant was dismissed. The dismissal was based on grounds of failure of the complainant to fulfil his contract of employment and failure to return to duty despite being repeatedly asked to do so.

This decision to dismiss was appealed by the complainant to a senior manager and an appeal hearing took place on 29^th August 2016.

The senior manager who had heard the appeal wrote to the complainant on 4^th October 2016 stating that although he believed the decision to dismiss him was the correct one he was granting the respondent a final chance to prove he could be an effective and regular contributor to the work of the organisation. He reassigned the complainant to another depot covering leave. The senior manager also advised that if the complainant stayed within agreed limits for six months he would reduce the sanction to a Final Written Warning.

In summary the complaint's view is that the decision to dismiss and the subsequent decision to redeploy should be overturned for a number of reasons including; the respondent had taken a one sided view of the issues taking place at Depot A; that the medical reports submitted were such as to vindicate the absence; that despite providing a certificate of Fitness in May 2016 the respondnet blocked his return until October. It was also the case that as there was a difference in relation to the medical reports an independent third party medical assessment should have been sought.

The complainant also provided oral testimony at the hearing to support his claim.

Respondent’s Submission and Presentation

The respondent provided a written submission. At the outset the submission gave detail of the complainant's record of employment.   Some of the material included in the submission extends back in time such that it is irrelevant to this investigation.

Following issues in relation to his performance the complainant went sick in July 2014. The complainant was contacted by the respondent in September 2014 and asked to provide a report from his treating specialist. The complainant did not accede to this request. In November 2014 the complainant was contacted by the respondent and requested to attend a consultation with the Chief Medical Officer (CMO). This consultation took place on 16^th December 2014. The CMO reported that the complainant's symptoms were compatible with work. The CMO also reported that he had received a report from the complainant's therapist and advised that the contents of the report were not of a medical nature.

The respondent wrote to the complainant in January 2016 stating that if he wished for information regarding his work related claims to be considered the complainant must sign and complete a mandate. The complainant did not complete the mandate.

On 16^th January 2016 the respondent wrote to the complainant requesting he return to work.   The complainant was offered the option of returning to his previous place of work or another depot. The complainant did not return to work.

In March the complainant was advised that as he had not provided a specialist medical report validating his absence from work since July 2014 the respondent had decided to discontinue his sick pay.

On 21^st April 2016 the respondent made a decision to dismiss the complainant. The complainant indicated his intention to appeal the decision.

On 23^rd May the respondent received a letter from the complainant stating that he was now in a position to return to work. The respondent eplied advising the complainant that as previously advised a decision had been taken to dismiss him and that while the appeal process was in train he should not return to work and that he would be recorded as being on special leave with pay.

An oral hearing took place on 29^th August. Following the appeal hearing the complainant was informed that although the decision to dismiss was correct the complainant would be given one last chance to prove that he could be an effective and regular employee. The complainant was also advised that he would be moved to another depot with effect from 10^th October 2016. He was also informed that the matter would be reviewed in six months and if his attendance was within acceptable limits the decision to dismiss would be reduced to a Final Written Warning. The complainant returned to work on 10^th October 2016.

In concluding the respondent’s position is that the decision to dismiss was based on the complainant's failure to fulfil the terms of his contract of employment by persistent unauthorised absence from work, along with his failure to return to work despite being repeatedly asked to do so. The respondent highlighted the absence of what a specialist medical report from the complainant as a contributory factor.

In conclusion the respondent contends that the decision to dismiss was reasonable and if complainant shows a commitment to provide regular and effective service that dismissal will be reduced to a Final Written Warning.

The respondent also provided oral testimony to support the company's position.

Findings and Reasoning

Having the considered the matter carefully I do not believe the complainant's case is well founded. I do not believe that either the decision to dismiss the complainant or the subsequent decisions to put that dismissal "on ice" and move the complainant to another depot unreasonable.

The complainant was absent for more than 21 months when the decision was made to dismiss him. Despite several efforts by the respondent to get a report from the medical specialist treating the complainant none was forthcoming. An employer cannot be expected to wait for ever for an employee top return to work, particularly in the absence of a medical report from the employee’s treating specialist. The report from the Chief Medical Officer was that the complainant was fit to return to work as far back as December 2014. It was only when the complainant was dismissed that he submitted a certificate stating that he was fit to return to work.

The decision following the appeal, to hold off on the dismissal and give the complainant a chance to prove himself is reasonable. The fact that the complainant was moved from Depot A to another depot is reasonable in the circumstances.

I would advocate that this chapter now be put to bed and that the complainant look upon the decision to not dismiss giving him an opportunity to prove his value to his employer.

Recommendation

The Industrial Relations Acts requires that I issue a recommendation in relation to the dispute. Pursuant with the findings outlined above I find that the respondent's actions in this matter are reasonable and I recommend that they be accepted.

Dated:   02/05/2017