UD1075/2015 MN502/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                     CASE NO.

Bernard Keogh,        -claimant                                                                        UD1075/2015

                                                                                                                         MN502/2015

Against

Jungheinrich Lift Truck Limited,

 -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Mr. T. Ryan 

Members:       Mr. F. Moloney

                        Mr. N. Dowling

heard this claim in Dublin on 26th August 2016 and 11th and 12th July 2017                          

Representation: 

Claimant:        Mr. Liam Bell BL instructed by

                        Mr. John Nolan, John Nolan & Co., Solicitors,

                        11 Parliament Street, Dublin 2

Respondent:    Mr. Brian Dolan, Peninsula Business Services (Ireland) Ltd,

                         Block W, East Point Business Park, Dublin 3

The Tribunal is satisfied that it has jurisdiction to hear the case having heard submissions from the parties, arising out of the fact that the claimant was pursuing High Court proceedings. Having carefully considered the matter, the Tribunal felt obliged to follow Stephens v Archaeological Development Services Limited [2010] IEHC (per MacMenamin J).and decided to hear the claimant’s case, stating that, if the Tribunal finds for the claimant in the substantive case, the statement of claim will have to be redrafted in light of any award to the claimant. The Tribunal does not want to case-manage and does not have that power. The claimant was entitled to have his case adjudicated by the Tribunal in as timely a manner as possible. The Tribunal agreed it would hear the case on dates agreed for July 2017.

Unfair dismissal and minimum notice claims were made in respect of a forklift repair engineer whose service began on 17 September 2007 and ended on 12 June 2015. On 13 November 2013 the claimant had a workplace accident. He had surgery to address the injury which had been caused to his shoulder in the accident. If possible he wished to undertake light duties on his return to work. 

The fact that the claimant had not returned to work was said to be the reason for the claimant’s 12 June 2015 dismissal. It was alleged that the extent of the claimant’s injuries was not afforded sufficient consideration by the respondent, that a reasonable accommodation was not sought in any properly considered manner, that no consideration was given to alternative employment, that the claimant was not asked to make a submission regarding his health and that his request for an appeal went ignored. 

It was also alleged that the claimant had not received notice of the termination of his employment. 

 Respondent’s case: 

The respondent accepted the burden of proof for a fair dismissal stating that on 19 January 2015 the claimant had been offered an alternative (office-based) role with the respondent but that this offer had been rejected by the claimant. 

On 18 May 2015 the claimant was certified fit to return to work for light duties only. 

On 19 May 2015 the claimant was referred to an occupational health specialist, a report was duly issued on 2 June 2015. On foot of this report the claimant was invited to a meeting with SK (of the respondent) on 12 June 2015. At this meeting a trade union official accompanied the claimant. 

On 22 June 2015 the claimant was dismissed for an inability to perform the role for which he was hired. Correspondence confirmed that reasonable adjustments to the claimant’s employment were discussed but not found, suitable alternative employment was discussed but found not to be available and the respondent had a need to find a suitable permanent replacement for the claimant’s role. SK (of the respondent) would provide extensive oral evidence in relation to the above points. 

On 2 July 2015 the claimant appealed the respondent’s finding. By e-mail dated 10 July the claimant was informed that the relevant person would not reply before 20 July 2015 due to annual leave. 

Due to inadvertence on the part of the respondent the reply to this request was overlooked, which the Tribunal finds significant. 

Without further recourse to the respondent, the claimant lodged these proceedings on 18 September 2015. 

The respondent submits that the dismissal of the claimant resulted entirely from his inability to perform the work for which he was employed and for no other reason. In light of the foregoing, the respondent submits that the claimant’s application under the Unfair Dismissals Acts should fail.  

On 12 July 2017 SK gave sworn testimony for the respondent. It was agreed that 12 June 2015 had been the date of the claimant’s dismissal. The respondent did sales and servicing of manual handling equipment. That included training. The work involved pallet trucks to cranes. 99% of it was on client sites. SK was area service manager for some twenty service engineers. The claimant would have worked in the service area. 

The Tribunal was referred to a list of service engineers’ duties which purported to state what the relevant work entailed. There was a need for engineers to be quite mobile. Of the 35 to 40 engineers 5 would be office-based. SK was responsible to both areas. There was also another area manager. 

The Tribunal was referred to the claimant’s terms of employment. Some 41.5 hours per week was the norm. The respondent would pay sick pay for six weeks. 

The claimant did not necessitate disciplinary action. No grievance was lodged. SK’s relations with the claimant were good. There were no concerns about the quality of the claimant’s work. 

The Tribunal was referred to the claimant’s medical history from 2011 to 2015. All of the respondent’s workers (except one) were full-time. 

In January 2015 HM (the claimant’s consultant orthopaedic surgeon) confirmed that the claimant had had surgery on a major rotator cuff tear and was, therefore, unfit for work until a review appointment at the end of April 2015. The claimant subsequently e-mailed SK expressing his gratitude for an offer of a temporary position in a desk job collecting bad debts. The claimant wrote further that he had just started physiotherapy and that his arm movement was very “restrictive”. 

On 30 December 2014 HM had written that the claimant had had surgery on 3 December 2014 and that he had a major rotator cuff tear and was therefore unfit for work until his review appointment which was to be 30 April 2015. 

SK told the Tribunal that the respondent had “got a girl through Job-Bridge” but that “she did not last”. 

The Tribunal was next referred to a 21 January 2015 e-mail from the claimant to SK in which it was said that the claimant feared losing his van “for a new guy starting up the country” and that all parts had been put in two boxes. 

On 29 January 2015 the claimant e-mailed SK that “returning to work at present is out of the question as I have trouble lifting a kettle and still in a lot of pain”. The claimant also asked to whom he should send his correspondence in future. 

The claimant had a van which needed servicing. To the respondent it was a van sitting idle and a new man was starting. 

SK was trying unsuccessfully to contact the claimant. He wanted to hear when the claimant was coming back. 

On 18 May 2015 HM wrote a letter “to whom it may concern” to confirm that the claimant had a review consultation on 30 April 2015 and was fit to return to work “light duties only”. 

On 19 May 2015 SK wrote to the claimant saying that unfortunately the respondent could not allow the claimant to return to work until it had clarification of the interpretation of “light duties only”.

SK told the Tribunal that the respondent’s work could not be light because it could involve moving wheels. The respondent had to get back the claimant’s company vehicle. SK told the Tribunal that the claimant was not fit to do forklift driving but that the respondent did not have a light job. Lifting and ladder-climbing could be necessary. This was June 2015. The claimant was now out seven months. The respondent had to cover holidays and said it took about a year to train someone. 

A meeting was arranged for 12 June 2015. The claimant brought a shop steward with him. Light work was discussed. The respondent needed to put in a permanent replacement. By letter dated 22 June 2015 the claimant was informed of the outcome. 

DG, a specialist in occupational health had written at the end of May 2015 to say that, in her opinion, it was too soon to categorise the claimant as permanently incapacitated since there was still hope of further recovery and that she would be happy to review the claimant in six months’ time to monitor his progress and give further advice on his long-term fitness to return to work to his normal duties. 

The 22 June 2015 letter from SK to the claimant stated that the respondent had come to the conclusion that there was no prospect of the claimant returning to work “within the foreseeable future” such that the claimant’s employment was terminated from 12 June 2015. The letter stated that the claimant had the right of appeal by letter to CMcG (after-sales general manager). 

Asked why not wait some moths for reviewing, SK replied that the respondent had already waited seven months. Asked about the claimant’s appeal, SK said that he had come back from holidays and that the office had thought that SK would deal with the appeal but the appeal was not organised. He had not seen to it. 

When it was put to SK that a replacement for the claimant had been taken on at a lower salary SK replied that the new man was not experienced. SK conceded that he had not followed up on the appeal. He could not give a reason why, he could have thought someone else was dealing with it. 

It was put to SK that the claimant was not told he could be dismissed on 12 June 2015 and he was asked if this was fair. SK replied: “possibly not.” He said that he had needed someone to carry out the claimant’s role as the claimant could not do it. It was put to SK that the claimant had been surprised. SK replied that this was hard to answer and that he could not recall the claimant’s expression. SK said that he had intended to get the claimant back to work but that his conclusion was that the claimant could not do the job. The respondent had looked to see if there were other roles. 

Asked about the review of the claimant to happen after a further six months, SK replied that the claimant had already been out seven months. 

Asked about an inspection role, SK said that was not done by a direct employee of the respondent. Statutory servicing was outsourced. Asked about light servicing, he replied that there was no such thing and that one would still have to lift items and take wheels off. The number of people doing other work had gone down from three to one. 

SK agreed that the claimant had not got fair notice of dismissal. Regarding a change of role for the claimant, SK said that there was not anyone coming up to retirement. He was asked why the respondent did not advertise for a fixed-term worker while the claimant was ill. It had been said that much training would have to be given to a new man. 

In re-examination SK was asked if an injured man could do a training role. SK replied that there would still be a lot of lifting of vehicle parts. 

Giving sworn testimony, CMcG (after-sales manager) said that the outsourcing of work was his remit, that there had been no such request in the current year and that there was not enough of that kind of work to employ someone from nine to five. He stated that he had got nothing about an appeal. 

Under cross-examination, he said that he had asked if anything was happening but left it to SK. CMcG had been expecting a letter directly to himself but got nothing. 

Claimant’s Case 

Giving sworn testimony, the claimant denied that he had rejected the offer of a desk job after he had got injured. He said that he had discontinued the sending of medical certificates when he intended to return to work. He intended to return to the full job. The respondent did not offer any dates. He could do light servicing on certain trucks and he could do inspections. Heavier work could be done by others. The claimant did not know of any response from the respondent about light servicing. He thought that he would return to work. 

Asked about the six months after which he would be reviewed and whether he would then be fully fit, he said that he was told it was too early to tell. He was shocked when he was dismissed and did not feel that he got a chance to make his case. He e-mailed the respondent to appeal. He intended to get back to work. He also e-mailed SK. He got an auto-response. He then decided to send it to DM who acknowledged it but the respondent did not contact him. The claimant had been some eight years with the respondent. At the very least he felt entitled to an appeal. He could have serviced some trucks. He could have done pallet trucks or electric vehicles. 

To mitigate his loss the claimant drove for a charity and got twenty euro added to his social welfare. He was now driving trucks at 300 euro per week and teaching people to drive. However, there were many overheads in his new work e.g. twenty-two thousand euro for a new car.  

Under cross-examination, the claimant was referred to a medical report which said that he did not believe he would ever be fit to return to the heavy job of forklift truck engineer. The claimant insisted that he could have gone back to work. He explained that he could use his left hand or other strategy to compensate for his injury. When it was put to the claimant that he could not do certain work he replied that he could do other work. 

The claimant said that, for representation, he used a man who was in the process of becoming a shop steward. He knew there were “other options” with the respondent. SK said that he needed to move on and that he could not keep the claimant’s job open. 

It was put to the claimant that he had not appealed to the correct person. The claimant said that he had decided that the respondent did not care. 

It was put to the claimant that he had not always been looking for work. He conceded that he had not applied for forklift work after his dismissal. He had considered going self-employed. Driving instruction suited him “grand”. 

In re-examination the claimant, talking of his purchase of an expensive car, said that he had had to sell his pension from the respondent. 

Both sides told the Tribunal that, in the event of the claimant being found to have been unfairly dismissed, compensation was the preferred remedy. 

Determination: 

By e-mail of the 29th January 2014 the claimant advised that he was unable to return to work and that he would even have “trouble lifting a kettle”. The Tribunal notes that there was no response by the respondent to this e-mail. 

The respondent e-mailed the claimant on the 19th May – e-mail headed “Prior to returning to work” the respondent said he could not return to work because he needed clarification of what “Light duties only” actually meant. 

The respondent sent the claimant for medical assessment, requesting that he needed to get a letter that he was fit to return to work. Surprisingly, the claimant was continued to be paid and given a car for work-related trips only”. 

The Med-Wise report, dated the 2nf of June 2015, stated that the claimant was not fit to do the job as a forklift engineer. He was not fit to work and that he was to be reviewed in another six months. The report went on to state that he might never be fit to return to work. 

Arising from the MedWise Report SK phoned the claimant to arrange a meeting to discuss the position. This phone- call never made it clear to the claimant that the meeting (which took place on the 12th June) could lead to his dismissal and to discuss “his future”. 

The respondent said it had seven months without the claimant and they could not wait another six months. 

The letter of dismissal 22nd June 2015 confirmed that he was not fit to return to his job and the company had no light duties available.

Representation and Disciplinary Procedure: 

According to the Oxford English Dictionary, representation is defined as: 

“The action of speaking or acting on behalf of someone or the state of being so represented”. 

The Respondent’s Disciplinary Procedure provides that: “an employee’s natural rights shall be upheld at all times” and that “the employee shall be entitled to representation”. It further provides that: “At all stages of the disciplinary procedure, an employee may request that a fellow employee is present at any disciplinary hearing”. Clearly the respondent distinguished between: “representation” and “being accompanied by a fellow employee”. Being represented is much more than being accompanied by a work colleague. The Tribunal does not know what the respondent had in mind by “representation”? The disciplinary procedure does not define this, nor was it explained at the hearing. The Supreme Court considered the circumstances in which an employee is entitled to representation in: “Burns and Hartigan v Governor of Castlerea Prison [2009] 20 ELR 109. In this case Burns and Hartigan were summoned to a disciplinary hearing due to the fact that there was an inordinate delay in returning to the prison after escorting a prisoner to hospital and that they improperly claimed overtime expenses. The prisoners requested, but were refused, legal representation. The Supreme Court held that in the circumstances legal representation was unnecessary as the charges could have been defended without a lawyer. The court further held that: “it is wholly undesirable to involve legal representation unless it affects the principles of constitutional justice”. According to the Supreme Court the following matters should be considered in deciding whether legal representation is necessary:

1. The seriousness of the charge and the potential penalty;
2. Whether any points of law are likely to arise;
3. The capacity of a particular employee to present his own case;
4. Procedural difficulties;
5. The need for reasonable speed in making the adjudication;
6. The need for fairness between the parties

In relation to this issue of legal representation the European Court of Human Rights has concluded that: “A fact sensitive, pragmatic approach to the right to legal representation” should be adopted.

Very few things in life are as serious as losing one’s job. In the light of this the Tribunal takes the view that the claimant was entitled to representation, which need not necessarily have been legal representation, but representation that was sufficient and adequate having regard to all the circumstances. What was offered to the claimant as “representation” was totally in-adequate. This is not a reflection on the Trade Union Official who accompanied the claimant in part of the Disciplinary Proceedings, but only in an observer capacity. This is well short of what was needed.

The Tribunal notes that that while the Supreme Court referred to it being wholly undesirable to have legal representation, it does not suggest that an employee is dis-entitled to any other representation. It is not for this Tribunal to define what type of representation would be acceptable. This is the matter for the respondent employer. However it is extremely doubtful that the Supreme Court would consider that being accompanied by a Trade Union official, (who is not allowed to speak on behalf of the claimant) would constitute sufficient or adequate representation.

Investigation:

The claimant was not advised that the meeting of the 12th June 2015 could lead to his dismissal. This constituted a major flaw in the proceedings and deprived the claimant of his natural and constitutional rights. Hence the procedural and disciplinary process was tainted and fundamentally flawed.

Appeal:

The claimant appealed the decision to dismiss him but his appeal was not processed by the respondent due to a misunderstanding. Again the Tribunal finds this unacceptable.

Having carefully considered the position of both sides, the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds and unanimously finds that compensation of twenty-five thousand euro (€25,000) is just and equitable in all the circumstances.

Regarding the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, the Tribunal finds that it fails because there is no further compensation due to the claimant.

Sealed with the Seal of the 

Employment Appeals Tribunal 

This   ________________________ 

(Sgd.) ________________________

     (CHAIRMAN)