FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : IRISH RAIL - AND - FERGAL BRYAN (REPRESENTED BY UNITE THE UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No(S)ADJ-00010247
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer ADJ-00010247 to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 18 September, 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Irish Rail t/a Iarnrod Eireann against an Adjudication Officer’s Decision ADJ-000010247 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim by Mr Bryan that he was unfairly dismissed by them. The Adjudication Officer held that the complaint was well founded.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Bryan is referred to as the Complainant and Irish Rail is referred to as the Respondent.
Background
Mr Bryan commenced employment with the Respondent in 2001 as a craftworker. In 2013 arising from a number of issues relating to his time and attendance the Respondent placed the Complainant under the care of the Chief Medical Officer (CMO). The Respondent has over the years put in place various supports to assist the Complainant. In the period February to March 2017 the Complainant failed to attend at prearranged appointments with the CMO despite being aware that he was obliged to do so. The Respondent viewed this as the Complainant abandoning his position and wrote to him advising him that he had been removed from the payroll.
Respondent’s case
The Respondent has clear procedures for employees when incapacitated by illness or injury. The Complainant had over a long period of time failed to comply with those procedures. The Respondent has at every opportunity put in place structures to support the Complainant up to and including facilitating a transfer. As part of the company procedure if an Employee fails to attend two consecutive appointments with the CMO they are referred back to Management who will decide if a sanction is appropriate. This had happened on more than one occasion with the Complainant.
The Complainant was facilitated with a transfer and took up his position in his new workplace on the 18th October2016. Two days later he was involved in a workplace accident and went on certified sick leave. The Complainant attended a medical appointment with the CMO on the 12th December 2016 where he was declared unfit for duty. It is the Employer’s contention that at the end of that appointment he was given a further appointment for the 3rd of February 2017. The Complainant did not attend that meeting and no reason for not attending was proffered. A further appointment with the CMO was made for the 8th February 2017 and the Complainant was notified by Whatsapps of the appointment.
Mr Gray Line Manager in his evidence to the Court confirmed that he had sent the Whatsapp to the Complainant and that he could see that the message was received and was read on the 6th February 2017. The Complainant did not attend that appointment. In line with normal practise the CMO returned the case to management to deal with. It is the Respondent’s position that meetings were arranged for the 13th 14th and 16th of March 2017 but the Complainant did not attend. The Complainant did attend at the Depot on the 23rd of March 2017 but Mr Gray was not available. In his evidence to the Court Mr Gray accepted that a letter was issued to the Complainant requesting he attend a meeting with him on the 23rd of March 2017 but it was his understanding that the meeting was never confirmed. Following a telephone conversation with the Complainant a meeting was set up for the 24th of March 2017 at which the Complainant attended. It was Mr Grays evidence that at the meeting he outlined to the Complainant the serious nature of his failure to comply with the Company’s sick leave policy and that he was putting his future employment in jeopardy. Mr Grey contacted the medical department and arranged a medical appointment for the Complainant for the 29th March 2017 at 9.20am. He notified the complainant by Whatsapp message on the 24th March 2017 of the appointment and that it was the last appointment that the CMO were going to make for him therefore, it was important that he attended. It was Mr Gray’s evidence to the Court that the message was opened and read in advance of the date of the appointment.
On the 30th March 2017 Mr Gray was notified by email from the CMO’s office that the Complainant had not attended for his appointment and at that point he informed Mr Sullivan the Production Planning Manager.
Mr Sullivan in his evidence to the Court confirmed that it was his decision on foot of advice from HR to issue the letter dated 30th March 2017 titled “abandonment of employment.” He confirmed the letter was issued on the 30th March 2017 the same day as they were notified by the CMO’s Office that the Complainant had not attended his medical appointment. Mr Sullivan could not explain why, in circumstances where by the Complainant had attended at the workplace on two occasions the previous week, it was decided to remove him from the payroll with effect from the 10th March 2017. Nor could he explain how he had come to the conclusion that the Complainant not attending the CMO appointment the previous day could constitute abandonment of post.
Mr Sullivan confirmed in his evidence to the Court that he had not advised the Complainant that failure to attend at the medical appointment on the 29th of March would be considered in that manner. Mr Sullivan confirmed that “abandonment of employment” was not part of the disciplinary process as far as he was aware and that in this incidence the disciplinary process had not been invoked.
Mr Norton in his evidence to the Court stated that agreement was reached with all the stakeholders in relation to not using the disciplinary process and to issue the letter of the 30th March 2017 to the Complainant. He identified the stakeholders as being Senior HR and IR Managers and Mr Sullivan. He confirmed to the Court that he did not consider the Complainant to be a stakeholder and that no engagement had taken place with the Complainant. It was his opinion that based on previous experience the Complainant would not engage and the disciplinary process required engagement for it to operate correctly. It was Mr Norton’s evidence to the Court that this was the basis for deciding not to follow their own disciplinary procedures.
It is the Respondent position that based on the Complainant’s non-attendance at the CMO appointment on the 29th March 2017 they were entitled to consider him as having abandoned his post and remove him from the payroll with retrospective effect.
Complainant’s case.
The Complainant does not dispute that his attendance record is less than optimal but he has an underlying medical issue that the Respondent is aware of. In his evidence to the Court the Complainant was very clear that he did not receive an appointment for 3rd February 2017 at the end of his December appointment. He confirmed to the Court that he did have discussions with Mr Gray about a meeting on 13,14, or 16th March but that he had difficulty getting around as he was on crutches and he also had medical appointments. He received a registered letter inviting him to a meeting on the 23rd of March with Mr Gray and he showed up for that meeting but Mr Gray was not available. Following a conversation with Mr Gray the meeting was rescheduled for the following day the 24th March 2017 which he attended. The Complainant in his evidence disputed that he had read the Whatsapp message before the date of the appointment but on cross examination accepted that an indicator on the message turns blue when the message is read and the screen shot of the message that was given to the Court showed the blue indicator.
The Union on behalf of the Complainant argued that it was not credible for management to believe that the Complainant had abandoned his post when they had interactions with him the previous week. If the Respondent had issues with the Complainants failure to comply with the requirements of the sick leave policy it was open to them to invoke the disciplinary process. However, in this case it appears they took a decision not to follow their own procedures.
The law
Section 1 of the Act defines dismissal in the following manner
1. “dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b)……
Section 6(1) states
“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.”
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.
Discussion
The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him do not meet the standard for fair procedure set out in case law.
In the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed:
“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.
1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied In the case before the Court the Respondent is seeking to rely on “failure to attend medical appointments” as constituting abandonment of post. The Court cannot accept that in the circumstances of this case that the Complainant could be considered to have abandoned his post. The Complainant had been in communication and had attended at the Respondent’s premises on more than one occasion in the previous week. Even if the Respondent did consider that the Complainant had abandoned his post it would not remove the requirement for the Respondent to apply the principles of natural justice to any action they proposed to take.
The Respondent does not dispute that they did not utilise their own disciplinary procedure prior to coming to the decision to dismiss. As set out in Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the decision to dismiss should be a decision proportionate to the gravity of the complaint and the gravity of the effect of dismissal on the Complainant. The principles of natural justice must be applied. Taking into account all the above the Court cannot see how this dismissal could be deemed to be fair.
Remedy
Section 7 of the Act states
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 adjudication officer or the Labour 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) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Court having considered the remedies available and having heard from both parties in relation to same has decided that re-engagement of the Complainant is the appropriate redress in this case.
Determination
The Court determines that the Complaint is well founded. The Court orders the Respondent to re-engage the Complainant within six weeks of this decision. The decision of the Adjudication Officer is amended accordingly. The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
25 October 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.