ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006768

Complaint(s):

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-00009184-001 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00009184-002 19/01/2017  

Date of Adjudication Hearing: 11/10/2017

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.   In advance of the commencement of the hearing on October 11th 2017, the complaint under the Safety, Health and Welfare at Work Act with withdrawn and the hearing was concerned solely with the complainant under the Unfair Dismissals Act 1977 – 2015.  

Background:

The complainant is a Polish national who started work with the respondent in July 2006 as a general operative. In 2015, he was promoted to the role of quality controller. He worked a three-cycle shift on a five over seven day roster and his annual salary was €27,790. The complainant’s wife also works with the respondent and they have a three-year old daughter.   From March 2015, the complainant was permitted a special roster arrangement so that he worked on opposite shifts to his wife. In this way, they covered most of their childcare needs themselves. In July 2016, the QA manager told the complainant that he would have to revert to his “normal” roster as the business could not accommodate the change any longer. Having been issued with his new roster on September 8th, the complainant arrived for work for the first day of his “normal” roster at 10.00am on September 11th. Around midday on that day, the complainant said that he injured his back lifting a box of apples and he was then absent for six weeks. The respondent determined that this was a dishonest claim and was related to the fact that the special roster had come to an end. The complainant was dismissed on December 6th 2016. The Health and Safety (H&S) Manager, the Operations Manager, the Technical Director and a HR generalist attended the hearing for the respondent. The complainant brought two witnesses; Mr S, a Quality Controller who was training with him on the day of the incident and Ms P, a General Operative who gave evidence that she had agreed to mind the complainant’s daughter that weekend while he and his wife were working. Incident on Sunday, September 11th 2016 The complainant started work at his rostered time of 10.00am. He worked in what was known as the “packhouse” and during his shift, he was accompanied by Mr S, who was being trained in quality control procedures.   At approximately midday, when he was lifting a box of apples from a rack 1.7 – 1.8 metres high, the complainant said that he felt a sudden and sharp pain in his back. It was agreed by the parties that the box weighed between 13 and 15 kilograms. The complainant claims that the pain was so bad that he had to drop the box. At 12.30pm, having got no relief from the pain, the complainant reported the injury to the Shift Manager, and completed an accident report in which he stated: “I lifted box of apples from the top of the pallet and I felt a sharp pain in the middle of my back.” The Shift Manager instructed him to go home for the remainder of the day. On Monday, September 12th, the complainant attended his GP who prescribed ibuprofen and certified him as unfit for work for one week due to back pain. In the end, he remained on sick leave for six weeks. Evidence was presented of an e mail dated September 13th from the Shift Manager who received the complainant’s medical certificate. Sending the cert on to the HR Department, she wrote that on Friday, September 9th, the complainant “come (sic) to my office angry and said he is not happy with the roster for the following week. This is the third time that he had a similar situation.” Referral to the Company’s Occupational Health Consultant On September 15th, the complainant was asked to attend for a medical examination by the company doctor on September 16th. The complainant didn’t attend this appointment, as it was his daughter’s 2nd birthday, but he attended a re-scheduled appointment on September 22nd. The company doctor examined the complainant and found that he was fit to resume work; however, his own GP continued to state in medical certs that he was not fit to return. On October 3rd 2016, an appointment was arranged with another doctor for the company.   Again, the complainant was certified as fit for work, subject to a restriction on lifting weights in excess of 15 kilograms. Health and Safety Investigation Having occurred on a Sunday, an investigation into this incident was initiated by the H&S Manager on Monday, September 12th. Her report was completed on September 27th and was informed by the incident report written by the complainant and interviews with Mr S and two Shift Managers who had had discussions with the complainant about the change to his roster.   The H&S Manager also contracted the services of a private investigator to monitor the complainant while he was on sick leave. The observations of the investigator contributed to the report’s findings in which the H&S Manager concluded: “It is my view that no work place incident occurred at (the company) Packhouse on 11/09/2016 as was put forward by (the complainant) on Sunday 11/09/2016.” Ongoing Absence from Work On October 4th, the day after his second medical consultation, the complainant attended what was referred to as a “welfare meeting” with the H&S Manager and a HR Generalist. At the meeting, the complainant said that his doctor’s opinion was that he was unfit for work until October 7th. He said that he didn’t trust the company’s doctors. He also said that he was going on holidays to Poland on October 8th and that he would get a scan done while he was there. He submitted a final cert by e mail from Poland on October 19th and he returned to work on October 25th. Return to Work – Commencement of Investigations On November 4th, the complainant attended a formal “investigation meeting” in accordance with the company’s disciplinary procedure. This investigation was carried out by the Shift Operations Manager.   The letter inviting the complainant to the meeting does not specifically set out what its purpose was but states: “Please note that this issue may be put forward as a disciplinary matter but no decision will be made in this regard until a full investigation into the incident has taken place.” It appears therefore that a “pre-disciplinary” investigation was conducted to determine if the incident warranted a disciplinary investigation. At this meeting, the complainant was informed about the conclusions of the H&S Manager, to the effect that no injury had occurred. It was also put to him that there was a connection between the incident on September 11th and the fact that he was back on his normal roster. He disputed this finding and continued to assert that he was in pain when he bent his back or moved sideways. He said that he was confused and not angry about the change to his roster. The Shift Operations Manager concludes his note on the meeting as follows: “”…it is my reasonable belief that (the complainant) was dishonest in reporting an injury to his back as a result of an alleged incident at work..“It is my recommendation that this matter be put forward for a disciplinary hearing.” Disciplinary Investigation The complainant attended two disciplinary meetings with the Operations Manager and a member of the HR team. At the second meeting on December 1st, the complainant was shown CCTV footage of the incident on September 11th and footage afterwards in which he is seen walking freely up and down stairs and putting on his coat without any sign of discomfort. Following the meetings, the Operations Manager concluded that the complainant had fabricated the incident and that he had done so because the special roster arrangements that had been put in place to facilitate his childcare needs had come to an end. The complainant was dismissed and a letter to this effect was issued on December 6th. Appeal of the Decision to Dismiss In accordance with the company’s disciplinary procedure, the complainant appealed the decision to terminate his employment and a meeting to hear his appeal was held on December 12th. The company’s Technical Director heard the appeal and upheld the decision to dismiss the complainant.

Summary of Respondent’s Case:

Dismissal Due to Misconduct The respondent’s position is that this dismissal resulted wholly from the conduct of the complainant and is covered by section 6(4)(b) of the Unfair Dismissals Act which provides that; “…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 …the conduct of the employee.” Having determined that the complainant fabricated the incident in the workplace on September 11th 2016, the respondent carried out an investigation in accordance with its disciplinary procedures. In her letter of December 6th in which she confirms her decision to dismiss the complainant, the Operations Manager states: “Having taken the time to review the evidence put forward in relation to the alleged incident it is my view that no workplace accident occurred as alleged by you and you fabricated the incident and the injuries you allege to have sustained. It is my view from the evidence presented to me that this alleged incident was manifested on the back of the removal of a special roster requirement.” Confirming her decision, the letter concludes: “It is my view that the trust that is necessary for the employment relationship has been eroded.“I am therefore satisfied that dismissal is the only fair and proportionate sanction applicable in this instance and I invoke this sanction with immediate effect. You will be paid six weeks’ pay in lieu of notice.”Dismissal Process At the hearing, the witnesses outlined the process that was followed after the complainant reported that he hurt his back lifting a box of apples. This is the sequence of events which concluded on December 19th 2016 with the dismissal of the complainant being upheld on appeal: September 12th – 27th:   Investigation by the H&S Manager September 22nd and October 4th:   Examination by two company doctors October 5th: Welfare meeting with the H&S Manager and a member of the HR Department October 27th: The complainant returned to work November 4th: Pre-disciplinary investigation by the Shift Operations Manager November 24th: First disciplinary meeting with the Operations Manager and HR Generalist December 1st: Second disciplinary meeting with the same participants December 6th: Dismissal December 15th: Meeting to consider the complainant’s appeal of his dismissal December 19th: Dismissal is upheld Evidence of the Health & Safety Manager It is the respondent’s case that the investigation carried out by the H&S Manager was the starting point in the overall investigation that resulted in the complainant’s dismissal. In her evidence, the H&S Manager explained that, where an incident results in the absence of an employee, the standard practice is to conduct an investigation. The complainant did not report for work on Monday, September 12th and an investigation commenced. The first piece of information examined is the incident report completed by the injured employee. She said that she then speaks with the manager on duty at the time of the incident, she collects the employee’s training records, looks at closed circuit television (CCTV) in the location that the incident is alleged to have occurred and finally, she examines the standard operating procedures for the role that the employee was carrying out. Having gathered all this information, the witness said that she would then speak to any witnesses who were in the location of the incident, and any others who could offer an explanation about what occurred. The H&S Manager was aware that the complainant had been on a special roster and that this had come to an end on September 11th. In her evidence, she said that she spoke to the two Shift Managers who are responsible for issuing the rosters and she was informed that on Friday, September 9th, in a conversation about the roster with one of them, the complainant had been “angry.” In his cross-examination of the H&S Manager, Counsel for the complainant objected to the fact that she did not retain notes of these conversations. The H&S Manager’s review of the CCTV of the incident led her to conclude that the accident with the box of apples was fabricated. She said that the CCTV shows the complainant lifting and dropping the box of apples in a “staged and orchestrated way.” Another clip shows the complainant ascending and descending a staircase without supporting himself on the handrail and a third clip shows him taking off his “hygiene” coat and putting on his jacket, apparently without any discomfort. These three pieces of footage were presented for viewing at the hearing. When questioned about the use of CCTV, the H&S Manager said that there are in the region of 30 cameras in the facility, with a number of these in the packhouse where the complainant worked. Evidence was presented showing notices in English and Polish to the effect that CCTV is in operation. A copy of the Polish language version of the company’s policy on the use of CCTV is posted on the notice board and was submitted in evidence. An e mail dated September 14th 2016 from the H&S Manager to four members of the HR Department was provided to the complainant as part of a data information request. In this mail, the H&S Manager explains that she is investigating the incident of September 11th and that her view is that the injury is a fabrication.   She recommended to the HR Department that the complainant would not be paid while he was absent. In cross-examination, the H&S Manager was asked what information she had available to reach this conclusion. In response, she said that she had the incident report completed by the complainant and the CCTV footage of the incident and follow-up footage where the complainant did not appear to be suffering any discomfort. She said that she also had a meeting with the Shift Manager who instructed the complainant to go home on the day of the incident. On September 15th, the H&S Manager interviewed Mr S, the employee who was assigned to the complainant to train on QC procedures on the day of the incident.   Mr S said that the complainant lifted the box of apples and made a sound and said “oh my back.” When asked which part of his back the complainant had hurt, the witness said that the complainant said that he hurt his lower back. On the incident report form, the complainant wrote that he had a pain in the middle of his back. Before she completed her report, the H&S Manager had to hand the results of the first medical examination attended by the complainant on September 22nd.   The examination was carried out by Dr Pauline Staunton who wrote as follows: “On examination he had a full range of movement of his shoulders and upper back though complained of pain in the interscapular area.   He could not perform any movements of his lower spine yet had no difficulty in picking up his daughter and carrying (sic) up and down the stairs on several occasions. In my opinion he did not make a good effort throughout the assessment.“In my opinion this man is fit to return to work.” In cross-examination, the H&S Manager was questioned about the use of a private investigator to monitor the complainant. She stated that she is authorised to use surveillance at her discretion and she said that on September 19th, when he was absent due to a back injury, the private investigator observed the complainant lifting a small child. The report of the H&S Manager was produced in evidence and sets out the reasons why she reached the conclusion that the complainant fabricated the injury which he said occurred on September 11th. She said that she reached this conclusion for the following reasons: 1. The complainant was angry about his return to his normal roster; 2. He was observed on CCTV lifting a box of apples and dropping the box in an orchestrated way; 3. He said in his report that he had a pain in the middle of his back, whereas the witness, Mr T, said that when the incident happened, the complainant indicated that he hurt his lower back; 4. After the incident, the complainant was observed on CCTV walking freely, ascending and descending a staircase without holding on to the handrail and removing his hygiene coat and putting on his coat apparently without any discomfort; 5. On September 19th, a private investigator observed the complainant lifting his child; 6. A medical examination on September 22nd concluded that the complainant was fit for work and the doctor also observed him lifting his daughter up and down stairs. Evidence of the Operations Manager The Operations Manager is the person who reached the decision to dismiss the complainant.   In her evidence, she said that she was requested by the HR Department to conduct the disciplinary investigation and she was accompanied at the meetings on the November 24th and December 1st by a member of the HR team. Before the meeting, she was provided with a copy of the report of the H&S Manager and the Shift Operations Manager. The complainant brought an interpreter to the meeting and was also accompanied by a colleague.   The Operations Manager said that, at the meeting, she read out the report of the Shift Operations Manager and asked the complainant for his views. The complainant corrected a fact related to where he went following the incident on September 11th. The report stated that he went to the Quality Office, whereas he said that he went to a manager’s room. The Operations Manager said that she asked the complainant to explain what happened on the day in question. She also asked him about what he said to his colleague, Mr S, to which he responded that he couldn’t remember what he said. At the meeting, the complainant was asked about his roster and his childcare arrangements and she said that he went into detail about each day of the week following September 11th, explaining that he had swaps and arrangements made for the week.   It appeared that he had arrangements made for just one week and the Operations Manager said that she felt that the complainant had “issues” with his childcare responsibilities. The meeting was adjourned and a second meeting was scheduled for December 1st. At the second disciplinary meeting, each piece of CCTV footage was shown to the complainant and he was asked for his views. At the end of this meeting, the Operations Manager decided that the outcome of the investigation would be the dismissal of the complainant. She said that she reached this conclusion for the following reasons: 1. The CCTV footage showed the complainant moving around freely with no indication that he had suffered an injury to his back; 2. The opinion of two company doctors was that he was fit for work, when he was claiming that he was not fit; 3. The H&S Report concluded that he had fabricated the injury; 4. He had issues with his childcare responsibilities; 5. It appeared that he did not suffer an injury to his back. In her evidence, the Operations Manager said that “trust is critical” in the workplace and “trust was broken” when the complainant alleged that he had an accident. She said that she reached this conclusion on the balance of probabilities, taking all the facts into account. Evidence of the Technical Director In preparation for hearing the complainant’s appeal against his dismissal, the Technical Director said that he was provided with the complainant’s letter requesting the appeal, the two medical reports, the report of the Shift Operations Manager and the CCTV footage referred to by the H&S Manager and the Operations Manager. He said that he read the H&S Report after the appeal meeting, which was held on December 15th. He said that he did not see a report from the private investigator. At the meeting, at which the complainant was accompanied by a colleague, the Technical Director asked him for his version of what happened on September 11th. Asked why he concluded that the dismissal should be upheld, the Technical Director said that he based his decision on the CCTV footage which showed the complainant walking up a staircase and removing his coat after the incident. He said that he was also influenced by the two medical reports. Case Law In support of its contention that this is not an unfair dismissal, the respondent cited the case of Looney & Co Limited V Looney [UD 843/1984].   Finding against the claimant in this case, the chairman stated: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did or decided as he did, as to do so would substitute our mind for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” It is the respondent’s position in this case that it was reasonable to arrive at the conclusion they arrived at that this employee fabricated an injury and, it therefore follows that the reasonable response was the termination of his employment. In respect of the importance of the bond of trust in the employment relationship, the case of Audrey Burtchaell V Premier Recruitment International t/a Premier Group [UD1290/2002] was cited. Ms Burtchaell was dismissed for sending abusive and defamatory e mails to members of staff. Referring to the requirement for trust between an employee and an employer, the chairman of the Employment Appeals Tribunal stated: “Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent.” The position of the respondent in this case is that, as they did not believe that the complainant was telling the truth when he said that he injured his back, their trust in him was “eroded” to an irretrievable extent. In this circumstance, as the breach of trust arose from the conduct of the employee, it is their position that dismissal was not unfair.  

Summary of Complainant’s Case:

Investigations by the Health and Safety Manager and the Shift Manager At the hearing, Counsel for the complainant argued that the decision to dismiss him was based on two “fundamentally flawed reports,” that of the H&S Manager and the Shift Operations Manager. His concern is that the H&S Manager commenced an investigation without the knowledge of the complainant and that he was not interviewed prior to the report’s conclusion. In her evidence, however, the H&S Manager said that she took account of the incident report compiled by the complainant at 12.30pm on September 11th. Counsel for the complainant also argued that the report of the H&S Manager is based on CCTV footage, in circumstances where the complainant claims to be unaware that CCTV was in operation in the facility. He also said that the complainant was not given a copy of the disciplinary procedure before the commencement of the investigation and that nowhere in this procedure is there mention of the use of private investigators. Finally, the complainant’s submission describes the interview with Mr S as “an interrogation” and there are no notes of the interviews with the two Shift Managers, one of whom reported that the complainant was angry about the change to his roster. The complainant claims that the H&S Manager reached a conclusion about the incident even before she finalised her report. This claim is based on an e mail she sent on September 14th which is referred to in the section “Evidence of the Health and Safety Manager” above. The subject line of the mail contains the name of the complainant and her mail states: “I have investigating (sic) the alleged incident involving the above employee, I believe this injury to be a fabrication and as such, I am requesting an urgent Dr (name of company doctor) appointment.” The e mail concludes: “I recommend that we do not pay this employee.” As the report of the Shift Operations Manager takes the report of the H&S Manager as its starting point, Counsel for the complainant argued that the report of the Shift Operations Manager is also flawed. As part of his pre-disciplinary investigation, the Shift Operations Manager reviewed the Health and Safety Report and the incident report compiled by the complainant. He interviewed the complainant and went through both documents with him. The complainant’s Counsel took issue with the fact that the witness to the incident, Mr S was not interviewed at this part of the investigation. Disciplinary Investigation On behalf of the complainant, Counsel submitted that the disciplinary investigation carried out by the respondent resulted in a clear breach of the complainant’s right to fair procedures for the following reasons: 1. At the first disciplinary meeting, the complainant was asked to respond to the two “fundamentally flawed” reports referred to above; 2. He was not given an opportunity to challenge the H&S Manager and the Shift Operations Manager or to put forward any evidence in his own defence; 3. He was invited to view CCTV footage of himself, making the CCTV footage “central to the disciplinary process.” As such, it was submitted that this is a breach of the Data Protection Acts; 4. Counsel claimed that the company had no CCTV policy and the complainant was never notified of the purpose of the CCTV or that it could be used in a disciplinary investigation; 5. The disciplinary hearing was conducted prior to the complainant being legally represented. Medical Examinations The complainant disputes the findings of the company’s doctors, and claims that the company should have accepted the opinion of his own GP. It is claimed that the first medical report “lacks all credibility” as there are references to the complainant’s child and childcare arrangements. The second medical report states that the complainant “presents with an episode of upper mechanical back pain.” On this basis, the complainant argues that the doctor accepted that he was suffering from a work-related injury. Appeal of the Decision to Dismiss Similar to his concerns about the disciplinary investigation, the complainant’s position is that the outcome of the appeal is tainted as the Technical Manager also based his findings on the “flawed reports” as they are described above. He also objects to the fact that the Technical Manager relied on the CCTV footage, in breach of the complainant’s right to privacy and his rights under the Data Protection Acts. Evidence of the Complainant In direct evidence, the complainant said that on the day of the incident, he went to the warehouse and then went to check apples. When he was lifting a box of apples, he felt a pain in the middle of his back and he dropped the box onto a trolley. He said that he tried to straighten up and walk around and that the exercise of walking was helpful. He walked around for a while and then went to sit down. He said that then the pain got worse. He went to talk to Mr S, who was training with him and he told him he was going to fill in an accident report form. He explained what had happened to his Shift Manager, who told him to go home. He went to his GP the following day and he got a medical cert for one week. In response to questions from his Counsel, the complainant confirmed that he had no input into the Health and Safety Report. He said that he wasn’t aware that he was being followed by a private investigator. The first meeting to discuss the complainant’s absence was described by the respondent as a “Welfare Meeting” and took place on October 4th – between the two medical examinations. The second meeting was the meeting with the Shift Operations Manager on November 4th, shortly after he returned to work. He then attended the first disciplinary meeting on November 24th. At this meeting, he received the first piece of documentation related to the incident, the Health and Safety Report. At the second meeting on December 1st, he was allowed to view the CCTV footage. He said he was not told who had accused him of fabricating the incident on September 11th and he never saw a report from the private investigator or copies of the statements of the two managers who told the H&S Manager about conversations they had with him about his roster. At the meetings, he said that he answered questions, but he was not told that he could ask questions of the H&S Manager or anyone else. He said that he was never told that he could have a legal representative accompanying him at the disciplinary meetings. In the letters inviting him to the disciplinary meetings, he was advised that he could “bring along a colleague of your choice as a witness.” When he was asked in evidence if he was questioned at the disciplinary meetings about his childcare arrangements, the complainant said that he wasn’t sure if he was asked about this, but that he explained that he had a babysitter arranged for a few hours on Sunday and then for the following Saturday. He said that the Shift Manager had allowed him to change his shift from the middle shift to the morning shift during the week and his wife had taken a day off on Friday, September 16th, so he had the week covered from a childcare perspective. Asked about the grounds for appealing his dismissal, the complainant said that he didn’t agree with the first medical opinion. Also, he disputed the evidence of the CCTV where the company said he was able to put on his coat with ease and he explained why it was not difficult to remove his hygiene coat and put on his jacket. When his Counsel asked him about his current status, the complainant said that said that he applied for a lot of jobs but is not working. He said that he did a training course called “Back to I.T.” and he is currently on the second of such courses which started four weeks ago.   The course is delivered on line and he can decide when he takes the training. He said that since he was dismissed he misses his wages and he feels depressed and has been treated by a psychotherapist. In cross-examination by Conor O’Gorman for the respondent, the complainant was asked about documents issued with a letter from the HR Department on November 1st in which he was invited to the pre-disciplinary meeting. Mr O’Gorman stated that this letter enclosed the Health and Safety Report. The complainant said that he couldn’t remember if he got this letter. Mr O’Gorman challenged the complainant’s contention that he was not told that he could ask questions at the disciplinary meetings. The complainant said that he just told the Shift Operations Manager about what happened on September 11th. The complainant was asked about the letter he sent to the company on December 7th in which he advised that he wished to appeal against his dismissal. Mr O’Gorman suggested that this letter was drafted by a solicitor; however, the complainant said that he got help to write the letter from the internet. On December 8th, the company received a letter from the complainant’s solicitors calling upon it to admit liability for “personal injuries as a result of repetitive work practices.” When he was questioned about mitigation of his losses, the complainant said that he has been claiming job-seekers benefit since December 2016. Evidence of QC Trainee, Mr S On September 11th, the day of the incident which resulted in his dismissal, Mr S was assigned to train on QC procedures with the complainant. Counsel for the complainant referred him to the notes of his meeting on September 15th with the H&S Manager. The notes record that Mr S said that the complainant said he was suffering from a pain in his lower back. In retrospect, the witness said that the complainant said that he didn’t say where the pain was, he just said, “oh my back.”Case Law In his submission that his dismissal was an unfair, the complainant relies on Section 6(7) of the Unfair Dismissals Act which states: “…….in determining if a dismissal is an unfair dismissal, regard may be had….(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice……” In support of this position, a number of precedents are referenced dealing with the principle of “the test of reasonableness,” the proportionality of the decision to dismiss, the complainant’s right to due process, the evidence of CCTV, the use of a private investigator and the right to cross examine witnesses. The judgement of Linnane J in the case of Allied Irish Banks Plc V Brian Purcell [2012] 23 ELR, is cited as an example of the requirement of the employer to act reasonably, where the judge refers to the decision of the UK Court of Appeal in British Leyland UK Limited V Swift [1981] IRLR 91. Presenting the requirement for the employer to pass the “reasonableness test,” Lord Denning stated: “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” The case of the Governor and Company of the Bank of Ireland V James Reilly [2015] 26ELR 229, deals with the issue of proportionality in which Mr Justice Noonan noted: “in assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.” As the complainant complied with the requirements of his employer by reporting the incident in the workplace, attending the company doctor and submitting himself to the disciplinary process, his view is that the decision to dismiss him was unreasonable and disproportionate. It is clear that the process which ended with the termination of the complainant’s employment commenced with the investigation of the H&S Manager on September 12th, the day after the incident with the box of apples. The complainant takes serious issue with this and referencing the case of Frizelle V New Ross Credit Union [1997] IEHC 137, claims that the dismissal flowed from a report which shows “mal fides” against the complainant. Objecting to the use of CCTV and to the evidence of a private investigator, the case of Gerry Clarke V Boliden Tara Mines Limited [2016] 27 ELR was referenced as a case where the facts are similar to this one and where the Employment Appeals Tribunal (EAT) found that the dismissal of Mr Clarke was unfair. Addressing their view that the H&S Manager was the complainant’s “accuser,” the case of Lyons V Longford Westmeath Education and Training Board [2017] IEHC 272, was referenced where Mr Justice Eagar stated: “…it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence.” The complainant’s view is that, as he did not cross-examine the H&S Manager with regard to her findings, the entire disciplinary process is flawed.  

Findings and Conclusions:

Statutory Provisions Section 6(1) of the Unfair Dismissals Act 1977 provides that: “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.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(b) of the 1977 Act which provides that; “…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 …the conduct of the employee.” The conduct which resulted in dismissal is the respondent’s opinion that the complainant fabricated an injury and remained absent for six weeks, in circumstances where two doctors for the company determined that he was fit for work.   As stated in the letter of dismissal, as a result of his conduct, “the trust necessary for the employment relationship has been eroded.” The questions to be decided are: Was it reasonable for the respondent to dismiss the complainant and was the process that ended with his dismissal a fair process? Was the Decision to Dismiss Reasonable and in Proportion to the Conduct? As has been established by the EAT in many instances, and specifically in the case cited by the respondent of Looney & Co Limited V Looney [UD 843/1984], it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant fabricated an injury, and in reaching this conclusion, was the decision to dismiss him proportionate to the seriousness of his conduct? An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are as follows: 1. On September 11th 2016, the complainant reported that he hurt his back lifting a box of apples; 2. The CCTV footage shows the complainant lifting and dropping the box, with no sign of distress, shock or surprise in the immediacy of an injury; 3. CCTV footage after the incident shows the complainant moving about the facility and up and down stairs without any apparent discomfort; 4. September 11th was the first day of the complainant’s return to his “normal” roster, which created child-minding problems for him and his wife; 5. Two doctors for the company gave opinions that the complainant was fit for work. One of the doctors commented that when he attended her clinic, he carried his then two year-old daughter up and down the stairs; 6. One week after the incident, a private detective observed the complainant carrying his daughter. On the basis of these facts, it is my view that it was reasonable for the respondent to conclude that the complainant was not injured on September 11th 2016 to the extent that he claimed, or possibly to any extent and he should have returned to work as recommended by the first company doctor on September 22nd. Every workplace injury has significant and negative implications for employers, from the perspective of employee confidence, the time and cost of investigations, litigation, public exposure and other factors beyond the scope of this decision.   A fabricated injury usurps resources to an even greater extent than a genuine injury. The conduct of the complainant in this case demonstrates a disregard for the employer’s resources in the same way as an employee engaged in stealing and as a result, to use the phrase from the letter of dismissal, “the trust that is necessary for the employment relationship has been eroded.” It is my view that the decision to dismiss was reasonable and proportionate to the conduct of the complainant in this instance. Was the Process Fair? Counsel for the complainant argued that the dismissal was based on “two flawed reports,” that of the H&S Manager and the pre-disciplinary report of the Shift Operations Manager. It’s clear that the genesis of the disciplinary investigation was the report of the H&S Manager; however, I do not consider that the process could have had any other logical beginning. The incident commenced with the complainant’s report of an injury, and every workplace injury that results in lost time is investigated by the H&S Manager. The basis of the H&S Report was the incident form completed by the complainant, so there is no basis for claiming that the complainant was not included in the process from the start. In his evidence, the complainant confirmed that he attended a meeting on November 4th with the Shift Operations Manager. He received a copy of the Health and Safety Report with the letter inviting him to this meeting. Following the meeting, the Shift Operations Manager produced a report which recommended that a disciplinary hearing be arranged. It is regrettable that the Shift Operations Manager did not attend the hearing to substantiate his findings; however, I do not agree with the complainant’s contention that his report is flawed. One of the factors contributing to the respondent’s conclusion of fabrication of an injury was the fact that the complainant’s “special roster” arrangement had come to an end. They were supported in this finding by the statements of two Shift Managers, one of whom said that the complainant asked about the change to his roster and the other who said that the complainant was angry about the change. Counsel for the complainant objected to the fact that there were no written notes of these statements. Copies of e mails from both managers were included in the documents submitted in evidence and I am satisfied therefore that no further corroboration was required. Counsel for the complainant objected strenuously to the respondent’s use of CCTV footage to support their finding that his injury was fabricated. It is my view that the complainant could not fail to be aware that CCTV cameras are used throughout the facility, as notices are posted in English and Polish and the company’s policy on the use of CCTV is also available in both languages. The extract posted on the notice board states: “The Company reserves the right to use information obtained by CCTV for disciplinary, performance management purposes and / or in association with a criminal investigation.” I find therefore that the use of the CCTV footage was appropriate and not in breach of section 2 of the Data Protection Act 1988 - 2003. In her evidence at the hearing, the H&S Manager said that she has discretion to contract the services of a private investigator to monitor an employee suspected of fraud or misconduct in relation to workplace accidents. By its nature, the use of surveillance is secret, not set out in any policy and occurs without notice to the person being observed. In this particular case, the observations of the private investigator contributed to, but were not central to the respondent’s findings. It is my view that, in the context of the respondent’s employment, the discretional use of surveillance by the H&S Manager is acceptable. On foot of the report of the Shift Operations Manager, the complainant received a letter on November 18th, inviting him to the first of two disciplinary meetings.   The letter states: “In accordance with our disciplinary procedure, you may bring along a colleague of your choice as a witness.” The complainant said that he never received a copy of the disciplinary procedure. The complainant’s two contracts of employment submitted at the hearing state that the disciplinary procedure is in the staff handbook. As an employee with 10 years’ service, I think that the complainant should have had no difficulty getting a copy of the disciplinary procedure and nothing hangs on the failure of the respondent to provide him with a copy during the disciplinary process. Counsel also objected to the fact that the complainant was not advised that he could bring a solicitor to the disciplinary meetings. The company’s policy is clear in this regard and allows an employee to be accompanied by a colleague of their choice. I note that the complainant’s solicitor wrote to the respondent on December 8th, calling on them to admit liability for personal injuries. It is apparent therefore that the complainant was familiar with the services of a solicitor; however, he did not request the involvement of his solicitor during the disciplinary process, nor did he request the attendance of his solicitor at the appeal meeting on December 15th. The complainant’s opinion that the H&S Manager was his “accuser” has been noted under “Case Law” in the previous section with the reference to Lyons V Longford Westmeath Education and Training Board [2017] IEHC 272. The complainant’s point here is that he should have been permitted to cross examine the H&S Manager, as, in his view, she provided information which resulted in his dismissal. The issue of cross-examination in a process that is not supported by legal or trade union representatives is not clear cut. Aside from this point, the process that resulted in the dismissal of the complainant was populated by a sequence of managers, starting with the H&S Manager. Each of these, from the Shift Operations Manager, to the Operations Manager and finally, the Technical Director, had the opportunity to look at the evidence afresh and the complainant had an opportunity to challenge the evidence and offer his opinion on its merits or otherwise. It is my view that, particularly where a dismissal is contemplated, an employee can only benefit from the support of a solicitor or a trade union representative. In this case however, the complainant did not request any such representation.   Regardless of the fact that he was accompanied at meetings by a colleague, if he had had more skilled and robust representation, I am not convinced that a different outcome would have emerged.  

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 decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

Dated:   11/01/2018

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Key Words: Employee conduct, injury in the workplace, fabrication