Complainant

Respondent

Anonymised Parties

A warehouse operative

A logistics solutions company

Representatives

Krystian Boino Hoban Boino Solicitors

Conor O'Gorman IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016910-001

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016910-002

17/01/2018

The Complainant was employed as a warehouse operative from 12th May 2007 until 6th July 2017. He was paid a gross wage of €700 per 39hour week.

This complaint was received by the Workplace Relations Commission on 17th January 2018. The complaint as submitted comes in two parts:

CA – 00016910 – 001 – complaint submitted under section 6 of the Payment of Wages Act, 1991.

CA – 00016910 – 002 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

1.       The complainant had been employed by the respondent since 16th of May 2007 in the Warehouse in Dublin. The complainant ‘s contract was terminated following blatant obstruction and non-compliance with Company Occupational Health Policy and Procedures and failed to follow repeated reasonable requests from HR.

2.       In 2015 the Complainant was issued with a Final Written Warning following and investigation into alleged misconduct, namely abuse of absence from work procedures after patterns of absence were identified whereby the complainant regularly went absent from work during the month of August and was absent for five out of six Christmas / New Year periods.

3.       On the 4th of June 2016 the then HR Manager, wrote to the complainant following a Welfare Meeting and granted him time off for June on the advice of the Company Doctor to attend medical appointments in Poland. During this meeting it was put to the complainant that any further absence in August or September may compromise his contract of employment given his previous patterns of absence.

4.       On his return to work the complainant was subject to the disciplinary process for alleged Gross Misconduct - dishonesty relating to the timings of recent authorised absence from work. The outcome of this process resulted in the complainant initially being precluded from availing of any authorised absence for a period of 12 months that was overturned on appeal. In his appeal outcome letter the General Manager stated “While I am empathetic to the fact that your wife and young child do not live in Ireland, it is your choice to live and work here and the Company expects that you are able to fulfil your contract of employment and provide reliable service on an on-going basis” .

5.       On the 6th of December 2016 the complainant e-mailed a member of the Human Resources Team (HR) and requested that she schedule an appointment with the Company Doctor as soon as possible citing the reason as an “agreement” between himself and the Company Doctor should he have any health problems.

6.       HR responded by letter on the same day outlining that the HR department was not aware of any health issues that required the complainant to be reviewed by occupational health at that time. HR advised the complainant that the Company Doctor practised privately and asked the complainant to contact the doctor directly should he require a private appointment. HR reminded the complainant that the Company would continue monitoring his absence levels following previous concerns and that she trusted that the complainant would be able to continue to provide reliable service over the upcoming Christmas period.

7.       The complainant responded by e-mail on the 7th of December outlining that the Company Doctor would not see him privately and that he was directed to the Company. He added that if the Company could not schedule an appointment that he would seek another solution and asked to have his private and work life kept separate.

8.       HR responded by letter dated the 9th of December 2016 confirming that having spoken to the Company Doctor’s office that the complainant was an occupational health patient and therefore could not be seen privately. HR commented again that the HR department was not aware of any current health issues that would need assessing under the occupational health process, however that if one existed to make the HR department aware of the concern as soon as possible. HR outlined again that in light of previous absences over Christmas and New Year that she hoped that the complainant would be able to provide reliable service on an on-going basis.

9.       The complainant did not make the HR department aware of any health issues that he had that would require him to be assessed by the Company doctor.

10.   The complainant subsequently went absent for five days before Christmas citing “blood pressure” when reporting his absence. No medical certificate was provided.

11.   On the 21st of December the HR department contacted the complainant with the view to schedule an appointment for him to attend occupational health. The complainant expressed his reluctance to attend an appointment with the Company Doctor stating that he was too unwell to travel to the Company Doctor.

12.   HR subsequently contacted the complainant and outlined that he was obliged to attend Company Doctor appointments. The complainant gave HR a number of reasons as to why he could not attend the appointment. HR found the conversation and reasons she was being given to be confusing and followed the conversation up with e-mail to her manager Ms AC, then Acting HR Director.

13.   During the conversation the complainant told HR that he was getting stressed just speaking to her and that he had an appointment to attend “therapy” at the same time as the Company Doctor appointment. HR tried to terminate the call due to the complainants claim that she was stressing him but the complainant kept talking over her. HR eventually had no choice but to terminate the call by hanging up and followed up her conversation with him by e-mail outlining the details of the appointment and advising him to attend.

14.   Shortly after the call was terminated a fellow employee submitted a cert and letter from the complainant, which had been written the day before. The cert stated his reason for absence as “Anxiety disorders, panic attacks in the past” and certified the complainant unfit for work until the 10th of January 2017.

15.   The attached letter written by the complainant stated that he had been in a poor state of health and was treated for such at the end of November. He went on to say that due to not being able to secure a Company Doctor appointment the complainant had been “forced” to attend another specialist. The complainant requested that the Company not contact him but to rather speak to his psychiatrist. In this letter the complainant also outlined that he was due days off on the 24th, 25th and 26th of December and had booked flights to return to Poland on these dates.

16.   HR again e-mailed her manager Ms AC and attached a copy of the cert and letter. In her e-mail she outlined her surprise that the complainant was accusing her of stressing him when she had only responded to letters and had not spoken to him for months. In fact the conversation had occurred after the letter was written.

17.   Ms AC on receiving the e-mails contacted the complainant herself. During the conversation that ensued the complainant admitted that he would not be in attendance at the Company Doctor as he was flying to Poland that evening despite his earlier claims that he was too unwell to travel to the Company Doctor; that he had a “therapy” appointment at the same time as the Occupational Health appointment; and stating in writing that he was only flying to Poland on the 24th of December for three days. Ms AC advised the complainant that his patterns of absence and sick pay were under scrutiny and that his behaviour could be classed as Gross Misconduct.

18.   Following the complainants admission that he was travelling home HR received an e-mail from the complainant asserting that he did not feel well enough to go to the Company Doctor. He confirmed that he was going to Poland at the recommendation of a psychiatrist to spend time with his family. The complainant asked that the Company not contact him by phone or in writing.

19.   On the 23rd of December HR wrote to the complainant advising that his sick pay would be suspended for failure to attend a scheduled Occupational Health appointment as per procedure.

20.   On the 10th of January 2017 at 20:59 the complainant e-mailed HR advising that he was certified sick until the 18th of February and that the cert would be delivered to the HR office the following day. He advised that he would be available to meet the Company Doctor on the 11th and 12th of January i.e. on one of the next two days before flying back out to Poland. The complainant resent the e-mail on the 11th of January. Prior to this e-mail the Company were unaware that the complainant had returned to Ireland.

21.   As the e-mail was sent after office hours on the 10th of January there was not sufficient time to secure an appointment with either of the Company Doctor the Company uses as both run busy clinics.

22.   The medical cert the complainant advised would be delivered to the HR office was not received and as such HR wrote to the complainant on the 17th of January requesting the complaint contact HR on receipt of her letter.

23.   On the 19th of January another Warehouse Operative, cane into the HR office with a picture of the HR letter on his phone. He told HR that he had received the letter and immediately corrected himself saying “no my friend received letter today.” He advised HR that he had given HR the complainant’s medical cert. The cert had been received on the 16th and date stamped as such however it had not been logged in the complainants absence file.

24.   It should be noted that correspondence between the HR department and the complainant was sent both via post and e-mail to ensure that the complainant received HR’s letters either in Ireland or in Poland as HR was unaware of the complainant’s exact location.

25.   The complainant responded to HR’s letter by e-mail on the day it was sent (20th January). The complainant outlined stress caused by the Company and told HR the Company had never helped him and that he would not explain his health as it was his view that he had no such obligation. He told HR that if the Company had any questions that they should contact his medical practice and speak to his GP directly.

26.   HR responded by letter dated the 25th January outlining the fact that under the collectively agreed Absence Control Procedure (ACP) the Company had a right to refer employees to the Company Doctor where any medical issues impact on attendance. HR pointed to the fact that the complainant accusation that the Company never helped him was inaccurate, that in fact there were numerous documents on the complainant file to demonstrate otherwise. HR advised the complainant that she was not in a position to simply contact his GP for an update on his condition that medical information needed to be obtained through the occupational health process. Finally, that the complainant did have an obligation to inform the Company of his reasons for absence and to attend occupational health appointments. HR requested that the complainant contact the HR department with reasonable and specific dates that would suit him to attend occupational health.

27.   Following no contact HR wrote to the complainant on the 10th of February outlining that he was in breach of the occupational health process. She again outlined his contractual obligation to engage with occupational health and explained that failure to do so may leave the Company with no other option but to assume that it was the complainant intention to terminate his contract of employment. HR asked the complainant to contact the HR department by Friday the 17th of February, so an occupational health appointment could be scheduled.

28.   The complainant responded by return e-mail on the 11th of February advising that he would be available the following week. He requested that he see a doctor “competent at his health condition”

29.   On the 14th of February further correspondence via e-mail occurred between the complainant and HR. The complainant outlined that his condition was deteriorating and requested that the Company not contact him by phone or in person. He went on to assert that he had been bullied by telephone by an employee of the Company (the last telephone conversation being the conversation with the acting Director of HR in December). HR simply responded that the earliest appointment available with either Company Doctor was the 20th of February and requested that the complainant advise of his availability to attend.

30.   The complainant responded after office hours on the 14th of February by e-mail requesting an earlier appointment. As the normal HR rep had left for annual leave on the 14th of February Ms RB, HR Generalist, contacted both the occupational health clinics and was able to secure an appointment following a cancellation for Friday the 17th of February. Ms RB advised the complainant of how lucky HR was to secure such a short notice appointment and requested he confirm attendance.

31.   On the 15th of February at 11:51 the complainant e-mailed Ms RB and advised that he had a psychotherapy appointment on Friday and then was flying back to Poland. He went on to state that he had medical appointments on the 16th of February between 14:00 and 18:00 and would only now be available for the remainder of the current day and before his appointments the following day.

32.   Ms RB responded within 15 minutes outlining again that Company Doctor appointments at short notice were hard to come by and asked that the complainant attempt to reschedule his psychotherapy appointment to accommodate the Company scheduled appointment (No response was received so Ms RB followed up the following day by e-mail requesting that the complainant confirm his attendance at the appointment ASAP. She reminded the complainant of his obligations to attend occupational health appointments.

33.   The complainant responded by return e-mail on the 16th of February stating that he was beginning psychotherapy and was travelling back to Poland on the 17th. He alleged that the Company was stressing him. The complainant did not request that the appointment be cancelled or seek a rescheduled appointment.

34.   E-mail was received from the occupational health clinic the following day to advise that the complainant had not attended the appointment.

35.  On the 22nd of February following further correspondence wherein the complainant informed the Company that he would be in Ireland from the 6th to the 10th of March an appointment was scheduled and attendance finally confirmed for the 6th of March 2017.

36.   The complainant attended for review with the Occupational Health Specialist (OHS) on the 6th of March and a report was issued to the Company. The OHS put his absence down to an acute stress reaction and possible underlying anxiety. The OHS advised that he engage with his employer to address any workplace issues. The OHS recommended that he would be fit to return to work and to engage with the Company form the 24th of April 2017. The OHS gave the complainant a doctor-to-doctor correspondence form to take to his treating psychiatrist. She noted that should he not return to work on the 24th of April she would recommend independent psychiatric assessment.

37.   On the 22nd of March the complainant e-mailed HR advising her that he thought he should get paid sick pay.

38.   On receipt of the Medical report and the complainant’s e-mail HR contacted the OHS on the 23rd of March to establish if a Welfare Meeting could be scheduled or if it should happen after the 24th of April. It should be noted that it is practice to follow up an occupational health appointment with a Welfare Meeting to discuss the report and put in place any necessary supports / next steps. The OHS responded by e-mail on the 30th of March advising HR that she had deliberately given him a long period to meet his specialist and to start medication. She advised not to engage with the complainant until the 24th of April when she felt that there would be no reason for him to remain on sick leave or not engage with HR.

39.   On the 1st of April HR received correspondence from the complainant alleging that he was intimidated and summoned to the Company Doctor. He confirmed that he had refused to attend and then was invited several times further and had now attended the scheduled appointment. The complainant outlined how he felt that he did not breach procedure and expected to get paid sick pay owed.

40.   At this time HR was made aware that the complainant had attended a meeting with the Company and his legal team in relation to a different matter. As part of this process a medical report was submitted which outlined different concerns as those raised by the complainant to HR impacting on his general health.

41.   HR wrote to the complainant on the 3rd of April in response to his now two requests for sick pay and outlined the concerns raised in relation to the medical reports and his attendance at a meeting with the Company when he certified unfit to engage with the Company. She advised him that the matter of sick pay would only be considered once the complainant was reviewed again in light of new medical information and asked the complainant to contact her after the 24th of April.

42.   On the 6th of April 2017 the OHS advised that doctor-to-doctor communication had been received for the complainants’ treating doctor confirming an anxiety disorder as the reason for absence. The OHS again recommended that the Complainant should be fit for work and to engage with the employer from the 24th of April .

43.   On the 10th of April the complainant e-mailed HR outlining his dissatisfaction with her previous correspondence and advising her that he would “need to apply to the labour court”. HR did not respond.

44.   On the 1st of May 2017 HR wrote to the complainant advising that his cert had expired and that she noted that he had had not reported a return to work and requested that he telephone the HR department as they were unaware of his situation.

45.   The complainant responded by e-mailed letter the same day outlining that his health was constantly changing and that he was certified unfit until the 1st of July 2017.

46.   HR followed up her previous letter on the 18th of May requesting that the complainant contact the HR department either in person or by phone before Wednesday the 25th of May so a suitable date for a further review with the OHS could be arranged. HR outlined how the complexities of the complainant’s absence could not continue to be managed by e-mail.

47.   The complainant did not attempt to contact the HR department to arrange a suitable date and time as specifically requested but rather responded by e-mail on the 19th of May advising that he would be available for an occupational health visit on one day the 1st of June and then would return to Poland.

48.   HR wrote to the complainant on the 13th of June advising that as he had failed to contact the department as requested to discuss a suitable date and time for an occupational health appointment and as per her previous mail the Company were no longer in a position to continue to manage the complexities of his absence by e-mail and would refrain from doing so going further. HR outlined what was deemed to be refusal of a reasonable request and advised that she had no choice but to request a review appointment without the complainant’s engagement. A review appointment was set for the 19th of June. HR reminded the complainant that he was obliged to engage with the occupational health process and that failure to do so may result in the Company assuming that it was his intention to terminate his contract of employment. It was also put to the complainant that the Company is not obliged to schedule appointments around his travel arrangements and that while they had attempted to be reasonable in that regard they could not be expected to do so without suitable engagement from the complainant. HR asked the complainant to contact the HR department by telephone to confirm attendance at the appointment.

49.   The complainant responded by e-mail again despite numerous requests to contact the HR department by phone or in person to discuss the requirement to attend for a review appointment. In this e-mail he outlined a further single afternoon when he would be in Ireland and available for review.

50.   HR responded by letter on the 14th of June outlining that she had been clear in her previous correspondence and that the appointment would not be rescheduled again as she felt that a reasonable attempt to engage on a suitable date and time had been made by the Company and that the complainant had frustrated the process at every opportunity. HR detailed how the Company are not obliged to schedule appointments around an employee’s travel arrangements.

51.   The complainant responded by e-mail on the 17th of June outlining that he could not afford to fly to Ireland for the appointment and requested that the Company purchase a plane ticket for him.

52.   HR responded on the same day that she felt that she had been clear in her previous correspondence and informed the complainant that the Company could not be expected to leave his position open if he was unwilling to comply with the occupational health process or uphold contractual obligations.

53.   The complainant responded that he had an exemption from a specialist who thinks him incapable of work and alleged that HR was intimidating him. HR did not respond.

54.   On the 22nd of June the OHS office informed HR that the complainant had failed to attend the scheduled occupational health appointment.

55.   On the 23rd of June HR wrote to the complainant and advised him that the Company would give him one final opportunity to attend an occupational health appointment scheduled for the 3rd of July 2017. HR in her letter outlined the following: “Any further non-compliance with the occupational health process including failure to attend scheduled Company Doctor appointments will result in the Company deeming your behaviour to be a deliberate frustration of contract and we will have no other option but to terminate your contract of employment” In her letter HR also invited the complainant to contact the HR department should he wish to discuss any of the above and gave three contact numbers.

56.   The complainant responded by e-mail requesting that the Company pay for his fight or schedule and appointment on three specific individual days over the new five weeks. The complainant wrote to HR again on the 28th of June advising that his cert had been extended until the 2nd of September and requesting that the Company send him to another specialist who was available on the days he was in the Country.

57.   The OHS’s office confirmed non-attendance at the scheduled appointment on the 4th of July 2017.

58.   HR wrote to the Complainant on the 6th of July advising that he had failed to attend his final occupational health appointment with occupational health. HR informed the complainant that no detailed medical evidence had been provided to support his on-going absence from any specialist who had been treating him and that he had failed to engage with the Company in a meaningful manner and appeared to have deliberately frustrated the occupational health process. HR stated that the Company had been clear and that no other option remained but to terminate the complainant’s contract of employment.

59.   The complainant responded by e-mail on the 8th of July stating “We will see you in the labour court. You will receive an appeal soon from your decision”

60.   An undated letter of appeal subsequently arrived in the HR office.

61.   The General Manager held the appeal hearing on the 20th of July 2017. He issued his outcome by detailed letter dated the 14th of August 2017. In his outcome he noted the following –

·         The complainant had been residing in Poland since his reported absence in December 2016.

·         He attended one occupational health meeting in seven months of absence despite repeated attempts to schedule appointments.

·         No detailed reports were ever provided by the complainant to the Company from any of his treating doctors / specialists.

·         The only other medical report that was known to the Company was one that was submitted as part of a PI claim in relation to a previous injury. Of note in this report is that it highlights a substantial discrepancy to the OHS’s report – “You informed Dr G in March 2017 that you had been feeling stressed for over 6 months and that work issues caused this stress. You informed Dr M in January 2017 (two months earlier) that you had been on treatments for hypertension for 18 months and were “under some stress as he has been having some fertility investigations with your wife for the past seven years.”

·         The claim of work-related stress was not substantiated by medical evidence.

·         The complainant was reluctant to answer questions during the appeal hearing in relation to his illness and would not comment on allegations he had made in his letter of appeal relating to working conditions on site.

The General Manager’s finding was that the complainant had put clear obstacles in the way when asked to engage with occupational health. It was further outlined that the inconsistency and lack of clear medical documentation was highly irregular and concerning. In addition, the complainant’s reluctance to assert facts in relation to his absence during the appeal hearing led him to believe that there had been a deliberate attempt to exasperate the matter on his part.

62.   The General Manager concluded that most worryingly, at no point during the appeal hearing did the complainant indicate to him that he wanted his job back rather the complainant went to great lengths to highlight his dissatisfaction with the Company and working conditions. The General Manager upheld the decision to dismiss the complainant.

Respondent Arguments

63.   The fact of dismissal is in dispute, the complainant's contract of employment was terminated by the complainant's own actions. As the fact of dismissal is in dispute it is for the complainant to prove the prima facia of his case and us to respond. We are greatly hampered in responding at this time, as the complainant has not set out his case.

64.   Without prejudice we shall set out the grounds on which his employment was terminated due to frustration.

65.   The complainant was absent from work for 8 continuous months during which he refused to attend appointments with occupational health. During this period of absence the complainant was not resident in state. The respondent did their best to accommodate the complainant being outside the country including accepting doctors’ certificates from Poland.

66.   The only onus upon the complainant was to attend occupational health and welfare meetings; he steadfastly refused to do so. The respondent company employs numerous foreign nationals including numerous Polish individuals. As an employer we regularly accommodate employees returning to their native countries to avail of medical treatment. The only requirement on staff that are abroad on sick leave is to attend occupational health and welfare meetings.

67.   The complainant was aware of the proper process; i.e. to inform HR of when he was visiting the country, so appointments could be made with occupational health and welfare meetings scheduled. He did this once, it was only following the termination of his contract that he saw fit to attend a meeting. At a minimum this can only be considered the most unreasonable of behaviour.

68.   The respondent in this case was left with no alternative; the complainant’s owns actions caused the termination.

69.   Without prejudice to the above we submit that should the adjudicator find for any reason that the claim is well founded, we submit that the complainant has contributed so greatly by his own action that no compensation is appropriate.

70.   Regarding the claim under the Payment of Wages act the complainant is seeking payment of sick pay. Notwithstanding the fact that there is no contractual entitlement to sick pay the complainant failed to comply with the terms of the sick pay scheme and was not entitled to sick pay.

Conclusion

The termination of the complainant’s employment was brought on by his own actions. The respondent acted reasonably at all times in the face of the intransigence of the complainant.

We ask the Adjudicator to find in our favour and hold that these claims are not well founded.

1.       The Complainant was employed by the Respondent Company since the 10th of July 2006 in the permanent position of Warehouse Operative.

2.       Complainant had an accident at work on 26th June 2015 and after return to work following over 10 weeks of sick leave he noticed that change of attitude towards him. Complainant became quite stressed in workplace and that combined with his medical condition (high blood pressure, arrhythmia) resulted in two separate emergency visits to hospital in Dublin. One of which was directly from workplace.

3.       As a result of the above Complainant was quite worried about his health and he also commenced additional treatment in Poland where it was easier to communicate with doctors and specialist help without long wait.

4.       In or around May 2016 Polish medical specialist recommended a two-week close heart performance monitoring program and Complainant asked the Respondent for two weeks unpaid leave (not sick leave) in order to attend same. Complainant knew it was in Poland and Complainant did not want to avail of sick leave company policy so there was no cost to the Respondent Company in relation to that treatment.

5.       Respondent company did not rely on Complainant medical certificate recommending aforementioned treatment and decided to send him to company doctor. Company doctor confirmed that treatment, but it was again a stressful experience to the Respondent that- from his understanding and point of view he was not believed, and Respondent company did not trust him despite quite serious investigations which he was about to undergo.

6.       Complainant was shocked and distressed when on his return from the unpaid leave/treatment from Poland in June 2016 Respondent Company invited him to investigation into alleged gross misconduct- dishonesty relating to the timing of Complainant authorised absence in order to attend the aforementioned heart monitoring in Poland. Despite the fact that Complainant did not claim he was sick- he simply asked for unpaid leave to attend that monitoring in Poland, the Respondent company took a bizarre approach that same was orchestrated by the Complainant to attend Euro football matches.

7.       Such a serious allegation against Complainant was not helping his medical condition but he took all the possible steps to appeal that disciplinary process of the Respondent Company as he felt the Company was not fair to him and the allegation was disgraceful. As a result of Complainant explanations firstly the Respondent company decided not to issue a disciplinary sanction in letter 10/08/2016 and secondly on appeal outcome dated 28th September 2016 the Respondent company decided to overturn the decision precluding Complainant from access to additional leave for a period of 12 months.

8.       Complainant rights and his integrity was defended as a result but this stressful process cost Complainant a lot in health terms. Defending 2-week heart monitoring took complainant 3 months of full disciplinary process up to appeal.

9.       The disciplinary process took a toll on Complainant health and he was still constantly stressed when attending work on nearly daily basis. As mentioned it all started with him taking a case for accident at work. In late November/ early December 2016 Complaint email the Respondent on 6th December asking for appointment with the company doctor- who previously assessed him in May.

10.   The Respondent company replied in a letter of 6th December yet again indicating that Complainant is closely monitored. The letter advices: “as you have been advised, the company has had concerns regarding your absence levels, patterns of absence and your use of sick pay scheme” This is something that the Company continues to monitor closely particularly at peak times of year and in light of the fact that your wife and young baby who reside outside the State”

11.   Complainant responded on 7th December asking not to involve his family. He explained he wanted to avail of company doctor visit bearing in mind what he was subject to in June of 2016.

12.   Respondent company replied on 9th December 2016 and suddenly advised that email is not an appropriate mode of communication with HR. Respondent again indicated that the Respondent had concerns regarding Complainant absence.

13.   Complainant followed the requested route of communication and sent a letter on 21st December 2016 advising that he was referred to psychiatrist. Complainant indicated that he is well aware it is Christmas period, but he asked to respect his personal problems. He also asked “once again for your understanding of my absence at work. Each additional stressful situation is bad for my health”. He also advised and authorised the Respondent Company to contact his psychiatrist with any questions or concerns.

14.   Most importantly Complainant provided medical certificate issued by psychiatrist which covers period from 20/12/2016 to 10/01/2017 and reads: anxiety disorders, panic attacks in the past. In response dated 21st December Respondent started their letter: “I feel it necessary to write to you with regard to your levels of absenteeism within the monitoring period… The letter further reads: you are approaching the level of occasions that will trigger an interview to review your overall levels of attendance. After such a strong starting approach, they reminded of the Employee Assistance Program in last paragraph of the letter.

15.   Complainant followed with another email on 22nd December advising inter alia that “the company has stressed me and scares (I am talking about the phones from the company)”Respondent provides immediate response on 23rd December indicating that Complainant failed to attend medical appointment scheduled for the previous day- 22nd December- so a medical appointment arranged immediately, within 24 hours.

16.   Complainant contacted the Respondent again on 10th January 2017 advising that his sick certificate was extended to 18th February 2017. He advised again that the Respondent is authorised to contact his doctor regarding Complainant health. Complainant also advised that he is available for a company doctor on 11th and 12th January 2017 and advised he will travel back to Poland after that date, so he is not alone considering his health condition. He sent the same email affording his availability to attend company doctor on early morning 11th January. Respondent ignored that emails despite being well able to arrange medical visits within 24 hours as occurred in December 2016. When they later responded- on 25th January they advised company doctors had very busy practises. Respondent also formed a view it is not possible for them to obtain information from the psychiatrist in Poland and that Complainant must provide reasonable dates when he will be available to attend company doctor- something that the company was not observing when arranging medical appointment within less than 24 hours on 22nd December 2016.

17.   In email dated 20th January 2017 Complainant reiterated that the Respondent can contact his psychiatrist and indicated there is no obligation to personally deliver medical certificates- something that Respondent seemed to expect from Complainant.

18.   Respondent asked again for reasonable dates on 10th February 2017. Complainant responded immediately on 11th February 2017 saying he is available next week. Complainant reiterated that on 14th February 2017 08:29.

19.   Complainant wrote again to Respondent on 14th February 2017 at 15:34 and advised he is available till 16th February 2017 and again between 5th and 10th March 2017.

20.   Respondent company doctor reviewed Complainant on 6th March 2017, the OHS noted that Complainant told her he is feeling very anxious and stressed for over 6 months. The OHS noted that he outlined issues in workplace which caused him to feel stressed, that he hopes he will be fit to return to work soon. The OHS further noted: THE Complainant appears genuinely upset and distressed;he appears quite anxious and there is evidence of an anxiety disorder and he presents with an acute stress reaction; please ensure he has contact details of the employee assistance programme. Finally, the report reads: If he does not return to work by the agreed deadline I recommend referring him for independent psychiatric assessment.

21.   In Respondent letter of 3rd April 2017, they are quiet in relation to any employee assistance programme. Report outlines acute stress reaction, anxiety disorder, genuine upset and distress but the Respondent did not miss a chance to yet again attack Complainant when he enquired about sick leave payment. Complainant replied on 10th April outlining his difficult financial situation and that he was left with no support.

22.   Further medical certificates were provided covering period from 2nd April - 30th April 2017 and 1st May to 1st July 2017. Certificates refer to anxiety disorder and panic attacks.

23.   Respondent in correspondence 18th May 2017 demanded contact in person or by phone Complainant responded next day- on 19th May 2017 explaining that every meeting is very stressful to him. Complainant also explained that he agreed with the OHS he will return to work after 24th April if his condition is good which despite his hopes was not the case and psychiatrist extended his sick cert till 1st July 2017. Complainant also advised when he will be in Dublin: 31st may and 1st June 2017.

24.   Despite that email no company doctor visit was scheduled for 31st May or 1st June (11 days’ notice provided to Respondent). Also, Respondent at that time was aware of psychiatrist diagnosis: anxiety disorder and panic attacks and kept corresponding with Complainant although on previous occasion and identical diagnosis from company doctor the Respondent withheld any contact. Respondent bizarrely concluded that his medical condition remains unsubstantiated by way of detailed medical documentation despite medical certificates submitted from specialist psychiatrist, and despite offer made on several occasions that Respondent was authorised to contact specialist psychiatrist.

25.   Respondent proceeded to schedule follow up appointment with OHS on 19th June despite a clear advice in the OHS report that Complainant should have been reviewed by independent psychiatrist. Complainant replied on same day advising he does not have money to arrange travel and advised when he has further visit and booked flights: 28th June 2017.

26.   Respondent replied on 14th June 2017 and this time advising that Respondent is not obliged to roster appointments around Complainant travel arrangements despite asking for the last six months when Complainant will be available and clearly knowing he was outside the State. Respondent further advised that OHS needs to conduct follow up review with is firmly contrary to the report advising independent psychiatric assessment.

27.   Complainant reiterated his position regarding dates for visit in email dated 17th June 2017 but indicated that he can travel for 19th June of Respondent will pay for his tickets. Complainant indicated he cannot afford to fly to Ireland.

28.   Further correspondence was exchanged on 23rd June 2017 where Respondent rescheduled visit with OHS ignoring the dates when Complainant was available and knowing his financial situation. Complainant asked for financial assistance to buy tickets if visit cannot be arranged for the dates he advised.

29.   On 28th June 2017 Complainant advised that his sick note was extended to 2nd September 2017 and indicated two dates: 24th July and 31st July 2017 as possible dates for medical examination.

30.   Respondent however did not reschedule appointment for the available dates and terminated employment on 6th July 2017 for deliberate frustration of contract.

31.   Complainant appealed the dismissal, but the dismissal was upheld on 14th August 2017

32.   Complainant remained on sick leave till 16th January 2018 when he was certified as fit to work.

Legal Submissions

CA-00016910-002 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

33.   Complainant submits that the decision to dismiss him from his employment was unfair and unjustified. The termination of his employment was contrary to both the Unfair Dismissals Act and also their own company polices.

Alleged ‘Deliberate Frustration of Contract’

34.   The company cites frustration of the occupational health process as the reason for his dismissal. In their letter dated the 6th of July 2017 they state the reason for dismissal as follows;

‘You have claimed that you are too unwell to attend work or indeed engage with the Company in a meaningful manner. You appear to be deliberately attempting to frustrate the occupational health process which is deemed to be a deliberate frustration of contract’

35.  It is submitted that contract of employment will be terminated by frustration where performance of the contract becomes impossible to perform due to an unforeseen event outside the control of either party. In such situations therefore, the contract is terminated by operation of law.

36.  It is submitted that this reason for dismissal is: non-existing, illogical and not provided for in any company documentation provided to Complainant.

37.  If the contract of employment had been frustrated then it would cease to exist and the employer would not need to terminate the employment. Therefore, there was no frustration here. Frustration occurs due to unforeseen even outside the control so as such it cannot be deliberate and cannot be attributed- as per Respondent correspondence- to Complainant.

38.   Considering the specifics of this case Complainant can only make an additional comment in relation to long-term illness of employee as a well-known commonly reason of a frustrating event. Such plea may succeed if it has become impossible to continue with the contract of employment. That is however not a reason for which Respondent ended the employment of the Complainant. They did not rely on his long-term illness (which in any event was not long-term considering Complainant general operative role and illness lasting only about 6 months) as having such an effect (frustrating) on the contract.

39.   It is therefore submitted that no frustration of contract occurred in this case and Complainant was unfairly dismissed without any proper disciplinary procedure.

Unfair dismissal

40.   It is submitted that the Complainant was unfairly dismissed and thus contrary to Unfair Dismissals Act 1977.

41.   Section 6(1) of the Act provides that: “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 onus of proof is on the employer to justify the dismissal on substantial grounds and to follow reasonable and fair procedure.

Absence from work procedure & Company Sick Pay Procedure

42.   It is submitted that complainant signalled his poor state of health to the Respondent Company in early December 2016 seeking appointment with company doctor (EXHIBIT 10). That was not accommodated, and Complainant ended up on anxiety disorder/panic attacks sick leave from 20th December 2016. Complainant submitted continuous sick certificates from psychiatrist according to company policy

43.   Complainant also made himself available to be reviewed by the company appointed doctor and also gave authorisation to the Respondent Company to contact his psychiatrist directly if they required any information. Respondent never made any contact with Complainant doctors. That was in compliance with the procedure allowing Respondent to refer employee to “physician nominated by the Company”

44.  Respondent was well aware that Complainant was outside the State and initially had no issue with asking Complainant to provide dates when he will be available for medical examination. Complainant was provided those dates on several occasions. Respondent availed on them and arranged examination with OHS on 6th March 2017. Subsequently however, Respondent communicated they have no obligation to adhere to Complainant availability for examination in State, failed to schedule appointment despite being notified reasonably and well in advance and proceeded to terminated Complainant employment for alleged “frustration of contract” per letter of termination.

45.   Complainant asked, when Respondent refused to schedule appointments on the dates he was available, to help and cover the transport costs in order to allow him to attend. Such option is clearly provided in the policy: “Appropriate transport costs will be paid”. In fact, the Complainants only reason for not paying himself for transport was lack of funds caused by Respondent refusal to provide him with sick pay.

46.   It is finally submitted that failure to comply with the policy of abuse of same will result in disciplinary action- as per the Respondents employee handbook.   It further says it may warrant suspension from the scheme as a potential sanction. Complainant was not subject (if he was, as alleged, in breach of the policy) to any disciplinary action but rather instantly dismissed without any procedure and for alleged “frustration of contract”.

47.  It is submitted Respondent was well aware that alleged abuse of sick leave policy leads to disciplinary action, as Complainant was subject to such procedure between June and September 2016 and finally, on appeal, cleared of any wrongdoing by the Respondent.

Case Law

48.   The Complainant submits that the decision in Irish Rail v Fergal Bryan (UD/18/90) is instructive. In this case, the Complainant was deemed to have been unfairly dismissed when his employer terminated his employment on the basis that he had abandoned his post for failing to attend medical appointments with the company’s CMO. The Labour Court accepted the Complainants assertion 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’.

49.   This case reiterated the decision in Samuel J Frizelle v New Ross CreditUnion [1997] IEHC 137 where it was stated that in making a decision to dismiss an employee the ‘principles of natural justice must be unequivocally applied’ and there are certain minimum requirements which must be met. These include the requirement that there be a bona fide complaint against the employee, the employee must be interviewed and given a chance to give evidence, any decision should be based on balance of probabilities flowing from evidence and any termination of employment must be proportional taking account of all the relevant circumstances.

50.   It is submitted that these basic considerations were lacking in the Complainants case.

Conclusion

The situation resulting in Complainant dismissal can be summarised as follows:

51.  The Plaintiff was in a poor mental state and the company was aware of this from at least 20th December 2016. Due to his poor mental state resulting from work related stress he found communication with his employer very distressing and expressed this in writing on several occasions in emails to HR on 21st December 2016, 22nd December 2016, 20th January 2017, 14th February 2017, 19th May 2017, 28th June 2017.

52.  These requests were ignored by the Respondent company who continued to bombard him with correspondence despite his repeated requests for any queries in relation to his condition be directed to his Psychiatrist who could easily have dealt with any concerns the company had in relation to the state of his health.

53.  The Complainant expressed that he found correspondence with them was exacerbating his mental health condition and that he felt bullied and distressed by these interactions. The nature of his complaint made communication and compliance difficult as he found correspondence with the company very distressing.

54.  Complainant submitted medical certificates from psychiatrist for all the period up to his dismissal and was in constant contact with the Respondent.

55.  Complainant attended OHS company doctor who confirmed Complainant mental health problems and his unfitness to work at least till 24th April 2017. OHS recommended independent psychiatrist opinion if Complainant remains unfit to work after that date.

56.  Respondent ignored OHS recommendation and suddenly changed their approach in relation to scheduling appointment dates despite previously asking when Complainant is available and accommodating him (an all that in circumstances of clear knowledge he is outside Ireland and being notified he has financial difficulty to buy additional tickets outside proposed dates which were for his visits and treatment). Complainant notified on 28th June 2017 he will be in Ireland on 24th July and 31st July but Respondent proceeded to schedule medical appointment dates earlier and knowing Complainant is not available and dismissed him on 6th July 2017

57.  Complainant was dismissed for a reason which does not exist and considering all the facts of the case, was dismissed without any disciplinary procedure, dismissed following ignorance of Respondent’s own medical advisor and in clear breach by Respondent of their own sick pay/absence procedures after 11 years of service.

Mitigation of Loss

58.   Complainant from 17th January 2018 was actively seeking employment in Ireland and after 3 months decided to try in Poland where he transferred his unemployment benefit (separate booklet available)

59.   Complainant secured full time employment on 1st September 2018 with weekly earnings of approx. €208.33 (3,500 Polish zloty monthly)

60.   Loss of earnings from date Complainant was fit to work to date:

17/01/2018- 31/08/2018- 34 weeks x €700= €23,800

01/09/2018 to 10/01/2019- shortfall of €491.67 weekly- 21weeks x 491.67= €10,325

Total to date: €34,125.07

61.   It is also submitted that voluntary redundancies took place at Respondents in early 2018 and Complainant would have been an entitled employee to apply for same. The offer was of 4 weeks redundancy per full year of service.

CA-00016910-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991

1.     The Complainant submits that the company’s decision not to pay him during his sick leave was contrary to company policy and the entitlement is part of his contract of employment.

2.     The Complainant was absent from work on certified sick leave from the 20th of December 2016. His Psychiatrist diagnosed him as suffering from an anxiety disorder.

3.     He was subsequently advised in a letter dated the 23rd of December that his sick pay had been suspended as a result of his failure to attend an appointment that was scheduled with the company doctor for the 22nd of December.

4.       The companies Employee Handbook contains a sick pay scheme which is specifically stated as covering all employees once they have worked over twelve months with the company. The company policy states that ‘payment will commence on the fourth day of any absence.

5.       Complainant submits he was entitled to 6 weeks full pay for leave year running from 1st April to 31st March.

6.       The company’s employee handbook states that ‘payment for certified absence due to illness will be made’ and nowhere does it state that this is subject to an initial visit with the company doctor. It is submitted that it is not standard practice to arrange an appointment with a company doctor after a three-day absence and the decision to do so clearly highlights the preconceived judgement that had been made by his employer in relation to this absence.

7.       Complainant medical condition for period up to 24th April 2017 was confirmed by the Respondent Company Doctor.

8.       Complainant did not receive the payment despite fulfilling eligibility criteria and the payment was not processed till his dismissal as the suspension from same was not lifted.

9.       Complainant was not paid sick pay as follows (considering that year for the purposes of that pay runs from 1st April to 31st March following year):

Year 2016- 6 weeks full pay

Year 2017- 6 weeks full pay

Total: 12 weeks

12 x €700 gross= €8,400 – (Social Welfare 12 x€193= €2,316)= €6,084.00

As the Adjudicator in this case my job is not to substitute management’s thinking with my own thinking and conclusions. Decisions in relation to the Complainant were made and my job is to look at how these decisions were made and ask were these the actions of a reasonable employer.

The Employment Appeals Tribunal stated in Looney and Co Limited v Looney [UD 834/1984]:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

Whilst one has to accept that the above referenced case is different to this instant case the approach of the Tribunal/Adjudicator is very much the same.

The Respondent has argued that the fact of dismissal is in dispute, the Complainant’s contract of employment was terminated by the Complainant’s own actions.

At [15.14, page 304] Mary Redmond in her book ‘Dismissal Law in Ireland’(Second edition, Tottel Publishing) describes frustration of contract as follows:

‘The doctrine of frustration is imported from contract law. A contract comes to an end through frustration and ceases to bind the parties if, through no fault of either of them, unprovided for circumstances arise in which a contractual obligation becomes impossible of performance or in which performance of the obligation is rendered a thing radically different from that which was undertaken by the parties to the contract. When frustration is applied to cases of illness an employer must be able to establish that further performance of an employee’s obligations in the future would either be impossible or would be a thing radically different from that undertaken by him’.

This was not a case of frustration of contract, the Complainant was dismissed by the Respondent.

In December 2016 the Complainant requested from Human Resources an appointment to see the company doctor as soon as possible, he also cited an agreement between himself and the company doctor.

The Complainant was absent from work for five days in December 2016 citing blood pressure problems, no medical certificate was furnished by the Complainant.

This was the commencement of a seven-month period during which the Respondent requested the Complainant to attend the company doctor and several appointments were made for him by the Respondent’s Human Resource Department.

I note that the Respondent has an Attendance Control Programme (this incorporates an Employee Assistance Programme) in operation. This programme has three objectives:

·         To reduce absence to 3% for all areas

·         To improve benefits for all employees in genuine circumstances

·         To have a mechanism for managing those who abuse attendance or sick pay.

One of the General Conditions associated with this Attendance Control Programme (ACP) is that the Company reserves the right to send employees to the Company Doctor at all phases where there are medical issues impacting their attendance at work or when the employee is absent from work for more than two (2) weeks.

It should be noted that this Attendance Control Programme is part of a collective agreement made with the SIPTU trade union.

The Respondent quite clearly points out that the Complainant was absent from work for eight continuous months during which he refused to attend appointments with occupational health. During this period of absence, the complainant was not resident in the state. The Respondent did their best to accommodate the complainant being outside the country including accepting medical certificates from Poland.

The following extract is taken from the Respondent submission:

The only onus upon the Complainant was to attend occupational health and welfare meetings; he steadfastly refused to do so. The Respondent company employs numerous foreign nationals. As an employer we regularly accommodate employees returning to their native countries to avail of medical treatment. The only requirement on staff that are abroad on sick leave is to attend occupational health and welfare meetings.

Having considered this matter and reading through the submissions I find it impossible to find that the Respondents actions were anything other than very reasonable. I have no alternative but to find the complaint as presented, under the Unfair Dismissals Act, 1977, is not well founded and therefore fails.

In relation to the claim under the Payment of Wages Act, 1991 the Respondent is saying that the Complainant failed to comply the terms of the sick pay scheme and was not therefore entitled to sick pay. I cannot disagree with the Complainant on this subject and therefore find the complaint under the Payment of Wages Act is not well founded.

CA – 00016910 -001 – Complaint referred under section 6 of the Payment of Wages Act, 1991 – complaint is not well founded and therefore fails.

CA – 00016910 -002 – Complaint referred under section 8 of the Unfair Dismissals Act, 1977 – complaint is not well founded and therefore fails.

Unfair Dismissals Act; Payment of Wages Act; attendance at work.