Complainant

Respondent

Anonymised Parties

A worker

An employer

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-00009439-001

31/01/2017

The complainant was employed by the respondent company as   a maintenance electrician and commenced his employment in December 2007.   Following a long spell of absence and the complainants alleged refusal to   attend medical assessments his contract of employment was deemed to have been   frustrated and the employment ended.

The specifics of the complaint are as follows:

1, A dismissal of employment took place while there was a   formal investigation by the Office of the Data Protection Commissioner taking   place following a complaint being mad by the complainant into the disclosure   of information by the respondent’s Occupational Health adviser.

2, A letter of dismissal was received by the complainant   on 04/11/2016 which contained both specific and vague information regarding   the termination of employment. A formal request was made to the employer for   specific detailed information on 11/11/2016 – no response was received until   30/11/2016 advising that no further information was available other than that   previously advised.

3, A P45 and any outstanding monies have not been   received.

4, The employer had previously issued several warnings to   terminate employment for non-attendance at the Occupational Health Consultant   (OHC) due to a data protection complaint. The complainant maintained it was   unreasonable to attend when his data was at risk. The respondent then   formally advised by letter on 19/04/2016 that in view of the overall case   they would oblige the completion of the data protection inquiry with the   provision that the complainant would submit medical certificates and also   provide the respondent with a time line regarding the data inquiry.

5, The respondent was informed on multiple dates that the   complainant would be available to attend further medical appointments when   the data protection issue was resolved.

6, Attempts were made by the complainant to engage with   the respondent both directly and via the OHC in relation to a return to work.   The complainant raised the possibility of re-deployment with consideration to   an in-house educational programme that he had completed and was funded by HEA   under a staff scheme.

7, There was a shift regarding a willingness by the   respondent to entertain the data protection concern when the matters raised   implicated the respondent regarding the internal sharing of medical   information. The respondent maintains that any wrong doing is down to an   outsourced provider and not them directly.

8, The complainant also summarised his unsuccessful   attempt to pursue a personal injury claim against the respondent.

The complainant commenced a period of sick leave on 8^th   January 2014 due to tendonitis in his left shoulder according to medical   certificates submitted to the respondent.

The respondent wrote to the to the complainant on 25^th   March 2014 to arrange an appointment with an occupational health specialist   in line with the respondent’s Sick Leave Regulations. The complainant   attended as requested and signed the Consent Form presented to him by the   occupational health adviser, he was provided with an information pack that   quite clearly states:

“Examiner may   provide limited medical information which may extend to naming your condition   in circumstances where the diagnosis has already been disclosed to your   employer or where some understanding of the nature of the condition may   assist in managing your situation at work. The examiner is allowed to express   an opinion as to whether you are fit or unfit to attend work or meetings, and   to advise on any restrictions or modifications that should be placed on your   work”.

The information pack further outlines that:

“the examiner will   write a report to your employer that will include relevant information about   your medical condition, recommendations regarding your fitness for work and   likely timescales of return to work and any adjustments/restrictions   required. The report will help your employer to know how to accommodate your   needs in the workplace. The report may also endeavour to answer any specific   questions that have been asked by your employer”.

At this medical assessment on 31^st March the   complainant was deemed to be unfit for work. The complainant was requested by   the respondent to keep them updated on his absence and to notify his manager   when he had received the recommended treatment.

The complainant underwent surgery in August 2014.

The respondent wrote to the complainant on 22^nd   September 2014 to arrange a follow-up medical assessment. This assessment was   scheduled for 29^th September 2014. On 25^th September   2014 to inform them he was disputing the initial medical report from the   occupational health adviser. The respondent then advised the complainant that   if this was the case he should request his GP to contact the occupational   health adviser. The medical assessment scheduled for 29^th   September was cancelled by the respondent to allow time for the complainant’s   GP contact the occupational health adviser. The complainant was advised that,   should his own GP fail to contact the occupational health adviser a further   assessment would be scheduled and he would have to attend as per the   respondent’s Sick Leave Policy. An assessment was arranged for 5^th   November 2014; the complainant was unable to attend and requested a   rescheduling. A new date of 7^th November 2014 was arranged.

The complainant attended the rescheduled assessment on 7^th   November and was deemed fit to return with restrictions within one month. The   occupational health adviser recommended that return on restricted duties and   reduced hours. The occupational health adviser recommended a further review   in three months to determine whether or not normal duties would be feasible   after this period. The respondent company analysed the recommendations of the   assessment and informed the complainant by way of letter dated 12^th   November that it was not operationally feasible to accommodate the   restrictions for craft grades and that the complainant would remain on sick   leave for a further period of three months or sooner should his GP support a   return to work. The complainant was also informed that, should he be deemed   not fit to work within the three month period, a further occupational health   assessment would be scheduled.

Between July 2015 and November 2016 the complainant   refused on no fewer than five occasions to attend an occupational health   assessment that had been scheduled by the respondent. The respondent viewed   this as a clear breach of his contractual obligations. The complainant was   advised on several occasions from February 2016 that continued failure to   attend an occupational health assessment will be considered as a breach of   his contract of employment, resulting in cessation of his contract.

The complainant had commenced sick leave on 8^th   January 2014 and ceased providing medical certificates on 14^th   February 2015. The complainant gave no indication of any potential return to   work and made no effort to provide the respondent with a reasonable timeframe   as to a potential resolution to his inquiries. To date, the respondent is   unaware as to the status of the complainant’s inquiries with the Data   Protection Commissioner. The respondent reasonably believed that the   complainant’s continued refusal to provide medical evidence or have medical   evidence be produced would persist indefinitely.

The respondent made all reasonable efforts to facilitate   the complainant’s return to work.

Legal arguments.

An Employee v   Employer UD1985/2011 in which the EAT found that:

“the claimant did   not attend with an occupational therapist or any specialist of his choosing   and he did not produce any independent medical evidence as to his fitness to   return to work to his specific employment.

(……)

By refusing   /neglecting to produce specialist evidence or to allow specialist evidence to   be produced frustrated his contract of employment.

Drawing on similarities with the instant case, it is   evident that the complainant has refused on 5 occasions to attend   occupational health assessments organised by the respondent. The respondent   acted fairly and reasonably at all times by allowing the complainant produce   his own specialist evidence which he neglected to do so.The complainant has   contributed wholly to the frustration of his contract and has failed on   numerous occasions to provide any indication that his situation would not   persist indefinitely.

The EAT , in An Employee v Employer UD 964/2011, was   satisfied that the claimant’s contract , after remaining unfit for work for a   period in excess of two years , was frustrated and had become inoperable, and   as such, the unfair dismissals legislation had no application. The Tribunal   noted that the claimant knew or ought to have known that the respondent was   looking at frustration of contract as an inevitable consequence of the   unavailability of the claimant for employment. Drawing on similarities in the   instant case, the complainant was warned on no less than three occasions that   it would be considered a frustration of contract if the complainant failed to   provide medical certificates or attend occupational health assessment as per   his terms and conditions of employment.

Having carefully considered this matter for some   considerable time and from reading the submissions we must focus on the   following:

1.   Sick   Leave Regulations – Clause 2.6 (b).

At   any time during absence, or, as appropriate, a member must, if so required by   the respondent, submit to a medical examination by a registered medical   practitioner nominated by the respondent and at the respondent’s expense. The   member’s own doctor may be present at such examination at the member’s   request and expense.

In this particular case the complainant has refused to   attend for occupational health assessments on no fewer than five occasions in   a period of 16 months.

In June of 2016 the complainant refused to attend a   meeting with the respondent quoting “it would be inappropriate to attend a   staff/management meeting while on sick leave”. Some weeks before this (4^th   May 2016) the complainant informed the respondent that his GP had advised a   return to work and that he would therefore not be able to provide a medical   certificate. The complainant did not provide a return to work certificate in   the alternative.

The complainant was absent from work from January 2014   until November 2016, a period approaching 22 months. Throughout this period   the respondent made several attempts to establish when the complainant may be   in a position to return to work and scheduled five appointments with the   Occupational Health Adviser – the complainant refused to attend for these   appointments and attempted to justify his non-attendance by claiming that a   Data Protection investigation was on-going.

The respondent has quoted the case from the Employment Appeals Tribunal - UD 1985/2011:

“the claimant did   not attend with an occupational therapist or any specialist of his choosing   and he did not produce any independent medical evidence as to his fitness to   return to work to his specific employment.

(……)

By refusing   /neglecting to produce specialist evidence or to allow specialist evidence to   be produced frustrated his contract of employment.

I have considered the management of this situation by the   respondent and can only make one negative comment and that refers to a six   month gap between letters i.e. one letter on 19^th August 2015 and   the next letter on 22^nd February 2016. The complainant did not   provide medical certificates as requested nor did he keep in contact as   requested. The respondent did not address this for a period of six months.

In every other respect I would have to be complementary   with the management of this situation by the respondent.

I find that the claimant, by continuously refusing /   neglecting to produce specialist evidence or allow specialist evidence to be   produced frustrated his contract of employment. The complainant was advised on several   occasions from February 2016 that continued failure to attend an occupational   health assessment will be considered as a breach of his contract of   employment, resulting in cessation of his contract.

Accordingly the claim under the Unfair Dismissals Acts   1977 to 2015 fails and is hereby dismissed.

Frustration of contract