ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00008883

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011797-001 08/06/2017   Date of Adjudication Hearing: 27/11/2017 Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissals Acts, 1977 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

Summary of Respondent’s Case:

An open offer of re-engagement has been made. The respondent is now in a position to take the complainant back into the same position as he held before he was dismissed, with no break in service. The complainant is due to retire next August, 2018 when he reaches his 65th birthday. The H.R. manager stated that the complainant was given a contract of employment when he commenced his employment with the respondent on the 09.11.1999. He was given a contract together with an employee hand booked. He signed for it. At the time of the dismissal, the 2010 handbook was in being. The complainant was a good employee and there were no issues with his work. In 2016, the complainant began to experience difficulties with this health The company policy states “Should the long- term sickness continue for a period of 12 months or more the HR department with review the absence.” The complainant was out of work from 19.07.16 to 18.11. 16, the 20.12.16 to 30.12.16 , the 01.01.2017 until his contract was terminated. On the 19.07.16 the complainant collapsed whilst at work. He was taken to the doctor and did not return that day. He remained on leave until December. He had an issue with his heart and required stents to be inserted. That was done in October. He stated in December that he was fit to come back. He was assessed by the company doctor on 10.11.2016. The doctor stated that he was “fit to return to unrestricted duties with no special restrictions required”. However, he did have a setback in relation to his back. On the 19th December, the day before he was due to return off annual leave, he injured his back at home. He was sent to a consultant Neurosurgeon by his own GP in January who stated that he did had severe sciatica caused by at issue at L5. It required surgery however, the surgery would have to be delayed for six months, due to the medications he was on for his heart, following stent surgery. On 11.01.2017 the complainant was invited to a meeting. It took place on 27.02. 2017. The complainant was there with his sister. It was an informal friendly meeting. At that meeting the complainant outlined his medical issues. He handed in a medical report from his consultant neurosurgeon. That report was in relation to his back complaint. It did not address his cardiac condition. The respondent noted that there was no conclusive return to work date on it. He spoke at length about his medical difficulties. He stated that he really wasn’t well on the day and was, at the time, on strong pain killers. The company did not dispute his medical complaints. The respondent did state, based on what he had said and on the medical reports, that it was looking unlikely that he would be able to come back to work and that perhaps he should consider early retirement. He hadn’t thought about that before because nobody had explained what it would mean for him. He was open to talking to the Pension representative. The respondent then went on to say that he would be given notice of eight weeks and the respondent would make the appointment for him to meet with the pension representative. The complainant seemed happy with that. Both respondent witnesses stated that the meeting was friendly and informal and in the best interests of the complainant. Both witnesses stated that no decisions had been made prior to the meeting. The company formally wrote to the complainant on the 03.03.2017 terminating his employment. He was given a right of appeal and the company handbook section on appeals. He was also informed that should his medical situation change during the notice period he should contact the respondent and update them on the changes. The complainant appealed the decision to terminate his employment. The CEO heard the appeal. The complainant did not attend physically for the appeal hearing. It was done via documentation. The outcome was confirmed in April. Today he has produced a medical certificate dated May, 2017 stating that he is now fit to return. This was not within the respondent’s knowledge until today’s hearing.    

Summary of Complainant’s Case:

The complainant has refused the offer of re-engagement. He wants compensation. He feels that the employee/employer relationship has irretrievably broken down. The complainant stated that he loved his job and it was the only thing that kept him going after his wife died in 2015. He collapsed at work in July, 2016 and following that had a stent insert into this heart. That was in October. In November, 2016 he was certified fit to return. He called the company. He said he was fit to go back. He was told that he had four weeks annual leave to take and that he should take them. He took the leave despite wanting to get back to work. That leave expired on the 20th December. On the 19th December, he hurt his back. He submitted a sick certificate. His GP sent him for an MRI and then he was sent to the consultant neurosurgeon. He also went to a pain specialist in the Hermitage. He did not submit a letter /report from the pain specialist. On the 11th January, he received a letter for the company calling him to a meeting. He was shocked. He went to the meeting with his sister. He denies stating that he couldn’t see himself going back to work. However, he was on very heavy pain medication at the time and upon reflection he shouldn’t have gone to the meeting. He was ‘out of it’. He didn’t tell the respondent that he was on heavy medication and that he felt ‘out of it’. He just got on with it. He gave them the medical report which stated that he would require back surgery but would have to wait for a period of six months post his heart surgery. The HR manager suggested he should consider early retirement on grounds of ill health. He was shocked about the suggestion of retirement but he didn’t say it to the respondent at that time or at any time. He did attend at the meeting in relation to his pension on the 5th March. He did not tell the pension advisor that he didn’t want to retire. He alleges that respondent should have waited until after that surgery before it embarked on its ‘review’ in line with their own policy. After the meeting his sister asked him “do you know what you said in there?” He didn’t really know what he had said because of the pain medication. He then decided that he wanted to appeal the decision to terminate his employment. He got the respondent’s termination letter stating he had seven days to appeal. He received the letter on day seven, leaving him no time to appeal within the time specified. Also, he had a medical appointment that day. The following day he wrote to the respondent stating that he wanted to appeal. He was invited to attended for an appeal hearing, Monday 3rd April.   He couldn’t attend on the first date. He had a hospital appointed. It was re-scheduled for the 8th April. He couldn’t attend for that either because he didn’t have a witness and he wasn’t going to go on his own. The company handbook states that the company will review the absence after a period of 12 months. However, the company commenced the review long before the 12 months had expired. He went out on sick leave in July and the respondent wrote to him in November in relation to the review. That was in breach of their own policy. He did contact the pension representative because he wanted to know what the pension would be. The respondent has stated that the decision to retire was mutual. It was not. He hoped that he would be able to return post his back surgery. He didn’t really know what he had said or done at the meeting due the side effects of the medication. In March, he was told he wouldn’t need the surgery on his back. He didn’t tell the respondent that. He was certified fit to return to work in May, 2017. That was just after the notice period. He didn’t contact the company because he was so upset about how he had been treated. He gave his heart and soul to the company for eighteen years. The notes of the meeting on the 27.02.17 do not reflect the evidence given that the respondent asked him if he was hopefully that he could return to work. Nowhere in the meeting notes is the complainant asked about his view on returning to work. That is an assumption that was made by the respondent in the absence of the complainant’s input. It was open to the respondent to have the complainant assessed again by their medical experts. He doesn’t want to go back because he feels that they would just be waiting to get rid of him. He would be constantly looking behind him. He accepted that he was never disciplined in the past. The complainant was never on disability. He is in receipt of the widow’s pension. He has signed on for job seekers but he only got the widows pension. He has no documentation in relation to his efforts to get employment. He gave the name of only one garage he called into. He did not upskill whilst working for the respondent because he thought he would be there until he retired. Now, because he didn’t upskill, he does have the required skills to work in a garage.      

Findings and Conclusions:

The general test for this area was set out by the High Court in Bolger –v- Showerings Limited [1990] where it was stated that an employer can fairly dismiss due to absenteeism where: •it was the incapacity/capability/absenteeism which was the reason for the dismissal; •the reason for dismissal was substantial; •the employee received fair notice that the question of his dismissal was being considered and; •the employee was afforded an opportunity of a fair hearing. It is clear from the medical reports submitted that the complainant was not fit for work, save for that short period of time, in November/December, 2016. This was initially due to his heart condition and then due to his back complaint. When the complainant was called into the meeting in February, 2017 the topic of retirement on grounds of ill was discussed. That was the first and only time it was discussed. Following that meeting the wheels were put in motion. The Respondent’s own policy specifically states that a review may be carried out following a period of twelve months of absence. The complainant was only absent for two months at that stage. He was certified fit to return to work in November, 2016 however at the respondent’s request, he took annual leave until 20th December. The medical report handed in by the complainant in February clearly states that he needed to have back surgery and that surgery couldn’t be performed until six months, post heart surgery. He had his heart surgery in October, 2016. The back surgery could have been performed in March, 2017.   As it transpired the complainant did not need the back surgery. The respondent should have, in line with their own policy, waited until the twelve months had expired, before reviewing the complainant’s employment. Had they have done so, the complainant would have been back at work in May, 2016 and this case could have been avoided. However, the complainant should have informed the respondent in March, 2017 that he did not require back surgery and that he would be able to return to work in the near future. It wasn’t until today hearing that the respondent was put on notice that the complainant was certified fit to return to work in May, 2016. In possession of that information the respondent made an open offer of re-engagement. I find that the respondent did breach their own policy in relation to long term sick leave and that the complainant did not receive fair notice that the question of dismissal was being considered. Having considered all of the evidence, I find that the complainant was Unfairly Dismissed from his employment.   7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.  The complainant has made little or no effort to mitigate his loss. He had no documentation with him at the hearing and could only give the name of one garage he applied to. He accepts that his age and his lack of skills will make it difficult to secure employment. I note that the complainant does not want to return to the respondent because he feels they treated him badly. Whilst the respondent breached their own procedures and did not afford the complainant adequate time consider his options, I find that there was no malice behind the decision to retire him. I find that at all stages they acted in what they thought was in the best interests of the complainant. Furthermore, I find that the complainant’s feeling that the respondent will take the first chance they get to fire him to be lacking in substance. The complainant is seeking compensation. He accepts that the reason he can’t find new employment is due to his age and his lack of skills. Asking the respondent to compensate him in those circumstances is unfair particularly when the complainant has made little or no efforts to secure employment. It is for the reasons set out above that I find that re-engagement is the most appropriate remedy. The complainant is to be re-engaged on the 01.01.2018. There is to be no break in service or pension contribution.          

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. The complaint succeeds. I award the complainant re-engagement from the 01.01.2018.    

Dated:   01/02/2018

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly