Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Company

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-00018395-001

09/04/2018

The complainant stated that his issues with the respondent began in 2013. He was accused of falling asleep whilst on duty. He denied the allegation and one's the security cameras were checked he says showed that he was not sleeping on the job. Shortly afterwards, there was another issue in relation to checks that he did not allegedly carry out. He stated that once the batteries had been checked it was confirmed that they were not working which is why he's check had not been logged in the system. Shortly after that a younger employee joined the respondent on the site. He had issues with him. He felt that this employee was following him everywhere and shining his flashlight at him while sneaking around after him when he was doing a security. The complainant says at that point he was feeling very unwell and was suffering from stress and anxiety. He called his manager and told him about his fellow employee following him around everywhere and shining is flashlight at him. His manager told him that he would investigate it. The following day the complainant received a call from his manager to meet him at their Dublin site office. At the meeting, he was told that the company were requesting that he attend with the company doctor. He was certified unfit for work from the 26.09.13 to 30. 09.13. When he sought to return to work, he was informed that he would have to get a fitness to work certificate from his general practitioner. The company's general practitioner referred to the complainant to the psychiatric services at a Dublin Hospital. In November 2013, the complainant was diagnosed as suffering from psychosis. The complainant alleges that the psychosis developed due to the stress and anxiety he was placed under whilst working for the respondent. On the 30th November,2013 the complainant got a fitness to return to work certificate from his general practitioner. He posted it to the respondent, however they did not receive it.   He went back to his general practitioner and got a copy of it and had it faxed to the respondent. He called immediately after the fax was sent to confirm with them that they had received it. They had. The following day the respondent told the complainant that they would need the opinion from a consultant psychiatrist in relation to his ability to return to work.

When the complainant was out on sick leave he states that he submitted is sick certificates every week up until February 2014. Thereafter he stopped submitting certificates because he was in receipt of the invalidity pension. He was also attending his psychiatrist every 3 months and assumed that the respondent was aware of this fact.

The complainant engaged solicitors in relation to a personal injury claim that he has filed, arising out of the psychological injury he says he sustained due to a campaign of harassment within the respondent entity. That was in 2015. The complainant believes that his solicitor at the time contacted the respondent and was told that his job was still there for him. The fact that his solicitor contacted the respondent at that stage is denied by the respondents.

The complainant states that he did receive the letter in October 2016 but did not respond to it.

When he received his dismissal letter in 2018 he was shocked. He immediately sent an email to the respondent. This letter was not submitted during the hearing. It stated in it he said that the respondent must be happy now that they finally got rid of him or words to that effect. The e-mail that was submitted by the complainant simply states that any funds that were due and owing to him should be sent to him by cheque.

The complainant has not worked since his employment was terminated. He is still in receipt of the invalidity pension and is still under the care of his psychiatrist at the psychiatric unit in a Dublin Hospital. He accepts that he isn't fit to return to work at the moment but is hoping that is mental health will improve in the future so that he can return to work.

The Complainant became an employee of the Respondent on 1 February 2013 following a transfer of undertaking under the TUPE Regulations 2003.   He worked for the Respondent as a security officer at a client site until in or about September 2013 when he reported that on that site he came under attack from what he has variously described as laser lights. He furnished a medical certificate on or about 26 September 2013 and he has not returned at any time to work for the Respondent. At the time of transfer to the Respondent he signed a contract of employment which provided for the following in respect of Sickness Absence: “If you are absent from work due to sickness or injury, you will be eligible to statutory sick pay as you may be entitled to receive provided that the Company receives notification and certification of sickness”. The contract of employment directly referred to the Respondent’s Grievance Procedure and the evidence will be that at no time did the Complainant raise a grievance. At the time he signed his contract of employment with the Respondent, the 18 January 2013, he also signed a form of acknowledgment that he had read and fully understood all of the Respondent’s policies which included their Grievance Procedure.

The Complainant did furnish a certificate to the effect that he was fit to return to work on 30 September 2013 but as he still complained of the potential attack of lasers at the same client site, he could not return to the site.   He did not challenge that decision nor indeed did he at any time raise a formal grievance.

It is the view of the Respondent that the Complainant has made different and very conflicting contentions in respect of his own mental health. He would have you believe that he was fit to return to work on 30 September 2013.   You will see however that he has furnished a report of 11 June 2018 from Doctor M in support of his claim before you today. Doctor M has confirmed that he was referred by the Plaintiff’s GP, Doctor D, in or about September 2013 to his particular centre, Mary Mercer Health Centre, and there he first saw the Complainant in November of that year. At the time of that examination Doctor M notes:

“He believed that stinging sensations that he was experiencing in his skin were a result of laser beams that were being directed at him by his employers in an attempt to have him retire without paying any severance. He was diagnosed with psychosis and started an anti-psychotic treatment. He took this medication reluctantly but with good effect. He stopped it intermittently for a variety of reasons but the problems returned on each occasion. He was requested by his employer in 2014 to get a certificate of fitness to return to work before they will take him back but my predecessor wrote to his solicitor, saying that he did not believe he was fit to return.”

It is clear from Doctor M’s notes that, on the basis of his belief that his employers were the source of the lasers and the resulting stinging, it was likely a return to work would exacerbate his condition. In July 2015 he was stabilised and in September 2015 Doctor M referred him to Occupational Therapy for possible training options as an alternative to return to the same employers. His return to training was delayed by his not being able to afford college courses initially due to a lack of citizenship and he had a relapse of his condition in 2017 when his medical card expired and he was unable to afford medication. He sent the respondent a copy of a letter from his employer in February 2018 saying that they considered him to be absent without leave since being recorded as fit to resume duties in October 2013. However, the referral material that we received in September 2013 including the minutes of a meeting on 24 September of that year when he was clearly still focussed on the belief that he was being attacked with lasers in his place of work. He was not seen by the respondent until November of that year having been referred by his GP. It is hard to make sense of the contention that his employers would have believed him fit to return to work in October before he had even received a specialist opinion.

Close to three years had passed and the Complainant had not presented himself for work. Neither had he furnished any medical certificates in respect of that absence from work. In his letter of 7 April 2016, the HR manager in effect called upon the Complainant to indicate whether he would be returning for work in the foreseeable future.

“However, if you feel that there is a possibility that you could return to work in full health, with a valid PSA licence, you should also contact me. This being the case, I will arrange for you to be examined by the company medical professional, prior to your return to work. If I do not hear from you by the last working day of this month, I will then take it that you wish for your employment to be terminated with us, and I will forward to you your P45 along with any monies owing.”

He received no response to that letter.

The HR manager again wrote to the Complainant on 12 October 2016 in precisely the same terms but again received no response from the Complainant.

The Complainant filed a personal injury claim with the Injuries Board on 20 February 2015 in which he alleged that he had suffered psychological injury as a result of what he described as “ongoing bullying and harassment” from “March 2013 onward”.   In respect of the details of the injury he has noted in his own handwriting “Psychological ongoing”.   He has confirmed that he was being treated by his GP. Regrettably, we do not have that report to hand, as he is the same GP that purportedly certified the Complainant as fit to return to work on 30 September 2013.   The Respondent received notification of the claim from the Injuries Board by letter of 17 June 2015. In that letter it is confirmed that the Complainant was represented by Howard Synnott Solicitors with an address in Dublin.   It is noted in that correspondence by the Injuries Board:

“Having considered the Application, pursuant to section 17 of the Personal Injuries Assessment Board Act 2003, we have decided that it would not be appropriate to make an assessment, as the claimant’s injuries are wholly of a psychological nature”.

The Injuries Board therefore issued the appropriate Authorisation which would allow the Complainant to bring a claim before the Courts in the traditional manner. The Respondent has at no time been served with such civil proceedings and so we reasonably surmise that no such civil proceedings were filed by the Complainant.   As he had last worked for the Respondent in September 2013, such proceedings would in our respectful opinion in any event have been statute barred.

Apart from the personal injury claim filed through the Injuries Board in 2015, from 2013 to 2018 the Respondent received no correspondence on the part of the Complainant. He has furnished other documentation to the WRC which clearly indicates that he was in receipt at all relevant times of an invalidity pension. You will note that he has furnished medical certificates from his treating physicians in support of his claim for that invalidity pension; at no time has he furnished those particular certificates to the Respondent.

In or about February 2018 the Respondent arranged to review the Complainant’s personnel file and noted quite clearly that he had been absent without leave since 2013, and caused a letter to be written on 8 February 2018 in the following terms:

“You have been absent without leave for a considerable period of time. It is a fundamental aspect of your employment that you make yourself available for work, and your failure to do so leaves us with no option but to terminate your employment. Any benefits due to you will be paid once all company property is returned including in particular your uniform.”

That letter was sent by both registered post and email, and on 9 February 2018 the Complainant responded in the following terms:

“From the termination letter you wrote me yesterday you said if any severance package is due to me it will be issued shortly, for recording purposes I will highly appreciate if the severance package is issued in cheque”.

By letter of 12 February 2018 the Respondent advised the Complainant in the clearest of terms there was no severance package due to him and it is specifically noted that since 2013:

“You neither communicated with us nor sent us in any medical certificates”.

The Complainant by email of 13 February 2018 asks the Respondent to put in writing the reasons for termination of his employment, which is of course his right under the Unfair Dismissal Acts.

By letter of 14 February 2018 the Respondent confirmed the reason for termination of his employment was as set out in their previous letter of the 12 February 2018.

The remedy sought by the Complainant for his alleged unfair dismissal is that of compensation only. He does not seek re-engagement or indeed reinstatement.

It would seem from correspondence emanating on behalf of the Complainant that he has at various times since 2013 been represented by 2 firms of solicitors. Dr. T in his report furnished to the WRC on 11 June 2018 references that the Complainant was represented by Terry Gorry & Company Solicitors in or about 2013 or 2014. In respect of his PIAB claim filed in February 2015, he was represented by Howard Synnott Solicitors. He therefore had the benefit of legal advice from two different firms of solicitors during the period of his absence without leave from 2013 to his date of termination in 2018. At no stage has he sought a return to work, we assume, on the basis that he is not fit to return to that work. We repeat that at no time has he raised a formal grievance or in any way communicated any difficulty in respect of his employment save and except a handwritten report he prepared in or about September 2013 in which he refers to his coming under attack from lasers at his then place work. We can rely on the opinion of Dr. T that at that time he was suffering from a psychosis.   When he did allege in 2015 that he had been bullied while working for the Respondent “from March 2013 onward” he at no time raised a grievance nor indeed complained of such bullying. We respectfully submit that no bullying did indeed take place and so if he has been unable to return to work it is we respectfully submit due to psychosis first diagnosed by the HSE Psychiatrist Services at the Mary Mercer Health Centre in or about 2013. He makes reference in this complaint to being referred to the HSE psychiatric service by the Respondent but that we can assure you is not the case.

The Complainant more recently wrote to the WRC by letter of 17 May 2018 enclosing a large amount of documentation. In ease of you and this hearing, he refers to various difficulties caused to him in his work, but we repeat that at no time did he raise a formal grievance in respect of such difficulties. With the greatest of respect, it is difficult to understand the intent or purport of his letter which alone runs to nine pages in length. He has enclosed with that letter at least four medical certificates all of which were affixed with the stamp of his longstanding GP. For each of the certificates: that of 7 October 2013 certifies him as suffering from stress; that of 17 November 2014 again certifies him as suffering from stress/anxiety; that of 7 May 2015 again confirms that he was suffering from stress/anxiety, as does that of 4 June 2015. The evidence of the Respondent would be that at no time were these medical certificates furnished by the Complainant; we can only reasonably surmise that he furnished those to the HSE in support of his claim for a State invalidity pension. One other enclosure is a letter in the form of medical certificate from the psychiatrist at Mary Mercer’s Health Centre dated 1 September 2015 in which the following is noted

“The above named is a patient at my psychiatric clinic. They (sic) attend on a regular basis and are suffering from a psychiatric illness and are at present unfit for work”.

The Complainant appeared to have undergone what has been diagnosed as a psychotic episode in or about September 2013 when he made a report that he had come under attack from lasers at his then place of work for the Respondent. It would appear on the face of documentation furnished on his behalf that he has continued to be certified as medically unfit for work and has at all times been treated by the HSE Psychiatric Service at Mary Mercer Health Centre. The report of Doctor T. is indeed entirely relevant. Between 2013 and February 2018 he failed to present himself to the Respondent for work which is fundamental to the employment relationship and a decision was therefore made by the Respondent to terminate his employment. The first reference he makes to having been allegedly bullied and/or harassed at work was when he filed his claim with PIAB in 2015; he seeks to amplify certain aspects of that complaint in his letter to the WRC in May 2018 but we say that the overwhelming medical evidence submitted by him in support of his claim is that he has suffered from a psychiatric injury, including psychosis, since being diagnosed in 2013. This unfortunate medical condition cannot be laid at the door of the Respondent and so we submit that it was reasonable in all the circumstances for the Respondent to arrive at the decision to terminate the contract of employment in February 2018. In closing we must also submit that the Complainant has not incurred any financial loss attributable to the dismissal. By his own evidence he has not at any time been fit to return to any gainful employment, and he has furnished no evidence of seeking such alternative employment.

The complainant was transferred to the respondent entity under the TUPE regulations on the 1st of February 2013. There was no issue with the complainant’s employment until September 2013. The respondent became very concerned about the complainants behaviour whilst in the workplace and their occupational health doctor referred him to a consultant psychiatrist for review. The complainant was diagnosed as suffering from psychosis in November 2013 and has remained under the care of the psychiatric services in a Dublin hospital since then. The complainant submits that he lodged medical certificates every week up until February 2014 however, no medical certificates where is submitted during the hearing. In that regard, I prefer the respondents evidence that they were not in receipt of any medical certificates in relation to the complainant ongoing mental health.

The complainant was first put on notice that his employment was in jeopardy in April 2016. At that juncture he was asked to engage with the respondent. He failed to do so. The respondent wrote to the complainant again on the 12th of October 2016 asking him to engage with them. Again, he   failed to do so. I accept the respondent’s evidence that at that juncture they were holding the position open for the complainant. They merely needed to know his status or is likely return to work date. When the respondent finally terminated the complainant employment in February 2018, the complainant did not take issue with the termination but merely emailed the respondent asking them to send any sums due and owing to him by cheque. The complainant stated that he did send another email to the complainant setting out his dissatisfaction that they had finally “got rid of him” however that email was not submitted during the hearing.

The complainant remains unfit to return to work. He is in receipt of an invalidity pension. He remains under the care of a consultant psychiatrist what is hopeful that at some point in the future he will be fit to return to work.

There is an obligation on a complainant, who is on long term sick leave, to keep the respondent informed, to submit regular sick certificates and to notify the respondent of a likely return to work date, if one is available. The complainant did none of the above and left the respondent in the dark.

In those circumstances I find that the responded acted reasonably in terminating the complainants contract of employment.

The complaint fails.

The complaint fails.