Complainant

Respondent

Anonymised Parties

A Worker

Manufacturing Plant

Representatives

Geraldine Conaghan MacBride Conaghan Solicitors

Rory Traynor Peninsula

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-00020593-001

13/07/2018

Facts

1. The Claimant was employed by the Respondent as a machinery operative from 2006 until 19 June

2018.

2. The Respondent is a net manufacturer.

3. On 21 July 2014 the Claimant sustained a soft tissue injury to his lower back while at work.

4. On 22 July 2014 the Claimant presented a sickness certificate which cited sciatica as the reason for

the Claimant’s absence. The Claimant was absent for two weeks. The factory was closed for a

subsequent two weeks.

5. On 15 August 2014 the Claimant returned to his normal duties.

6. On 25 March 2015 the Claimant presented a sickness certificate which cited a back injury. The

Claimant was absent for two weeks.

7. The Claimant did not return to work.

8. On 27 April 2017 the Claimant attended the Respondent’s premises seeking to return to work. The

Claimant was instructed to obtain medical evidence of his fitness to return to work.

9. On 9 May 2017 the Claimant presented a letter dated 3 May 2017 which stated “This man injured his

back and is recovering. He is fit for light manual work avoiding bending [or] lifting from 9 May

2017.”

10. Later in May 2017 the Respondent requested the Claimant’s permission to contact the Claimant’s

doctor.

11. On 9 June 2017 the Respondent wrote to the Claimant’s doctor seeking information regarding the

Claimant’s condition.

12. On 19 July 2017 the Claimant’s doctor wrote to the Respondent stating “due to the severity of the

original injury it is recommended he avoid heavy lifting and bending to prevent recurrence.”

13. On 25 July 2017 the Respondent wrote to the Claimant informing him:

a. The Claimant’s medical practitioners have advised that the Claimant should not bend, lift or

stoop;

b. The Respondent was seeking a suitable role for the Claimant which would not require such

activities;

c. There was no such position currently available.

14. Following correspondence with the Claimant’s representatives the Respondent required the Claimant

attend Dr TMcG   in order to have a Fitness to Work assessment

performed.

15. On 17 October 2017 the Claimant attended Dr TMcG. In the doctor’s report it is stated, inter

alia, “He could also undertake manual handling as long as this is restricted below 10 kgs. and lifting

between mid-thigh to chest level only.”

16. On 4 December 2017 the Claimant met with the Respondent to discuss the content of the report of

The doctor , potential adjustments which could be made in the workplace or alternative

employment for the Claimant within the Respondent’s workplace.

17. On 11 December 2017 the Claimant met with the Respondent to discuss matters raised at the

meeting held on 4 December 2017.

18. On 31 January 2018 the Claimant attended Mr R.L , Occupational Therapist and

Vocational Evaluator. This report concludes “The medical opinion available to me is clear that he

needs to avoid any heavy manual work that would compromise his back.”

19. On 4 April 2018 the Claimant attended Dr T.McG to obtain a further opinion. In addition to

observations made in Dr TMcG s report of 17 October 2017, he states “I have no doubt he would

have difficulty with twisting or turning, particularly if this needed to be done repetitively or at pace.

In addition, reaching or stretching is also likely to be difficult, for example if this was required to load

and unload machines.” The report concludes, “I believe it is unlikely this man’s condition will resolve

completely into the foreseeable future, for example the next 12 months or so.”

20. On 1 June 2018 the Respondent invited the Claimant to attend a meeting to discuss the Claimants

continued absence from work, medical reports, adjustments which might be made to the workplace

and alternative employment with the Respondent.

21. On 8 June 2018 the Claimant attended the Respondent to discuss the above matters.

22. On 19 June 2018 the Respondent wrote to the Claimant informing him that having considered the

medical evidence, the statements of the Claimant, the possibility of adjustments being made to the

Claimant’s role and the possibility of redeployment, the Respondent had no alternative but to

terminate the Claimant’s employment on the grounds of capability. The Claimant was informed that

he would be paid 6 weeks’ pay in lieu of notice and any other monies owed. The Claimant was

informed that his P45 would accompany this payment.

23. The Claimant was informed “You have the right of appeal against my decision and should you wish

to do so you should write to C, director within 5 days giving the full reasons as to

the grounds for your appeal.”

24. On 22 June 2018 the Respondent furnished the Claimant with a cheque in the value of €4,706.28 and

his P45.

25. On 3 July 2018 the Claimant’s representatives wrote to the Respondent seeming to allege that the

furnishing of the Claimant’s P45 in advance of the expiry of the 5 days for the Claimant to appeal

amounted to a procedural unfairness.

26. On 6 July 2018 the Respondent wrote to the Claimant’s representative extending the time for the

Claimant to lodge an appeal of the decision of the Respondent. The time was extended to 12 July

2018.

27. No appeal of the decision of the Respondent to dismiss the Claimant was lodged by the Claimant or

the Claimant’s representatives.

28. The within claim was commenced on 12 July 2018.

29. The most recent in relation to the Claimant’s condition is dated 1 November 2018. The Functional

Assessment indicates:

He has restricted capacity to lift and carry other than light items and for short duration. HE has

restricted capacity to push and pull, i.e. exert sustained force as is required in pushing and pulling,

levers, boxed, pallets, wheelbarrow, hover, lawnmower, etc. as for machine operative, general

operative, labourer, block layer, van delivery, cash and carry assistant, etc.

He has a sitting tolerance of 30 minute and a standing tolerance of 5-10 minutes. He can walk on

flat even ground, at his own pace. He has increased lower back pain on right uneven ground…

He has restricted capacity to repetitively stoop, bend and kneel.

30. This report shows no meaningful improvement in the Claimant’s condition since the date of

dismissal.

Submissions

31. The Claimant’s failure to utilise the appeals procedure is fatal to the claim of Unfair Dismissal.

32. In Melinda Pungor v. MBCC Foods (Ireland) Ltd UD/548/2015 it was held that the Claimant’s failure to

appeal her dismissal was fatal to her claim for unfair dismissal. The Labour Court stated:

The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to

enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence

that might justify her decision not to exhaust the internal process.

33. In Aryzta Bakeries v. Vilnis Cacs UD/17/106 it was held:

…there is an obligation on the Claimant to exhaust available internal procedures and that the

Claimant failed to do so.

34. It is anticipated that the Claimant will allege the fact that the Respondent served the Claimant with

notice pay and a P45 prior to the expiry of the time for appeal is sufficient to justify the failure to

exhaust the appeals process.

35. The Claimant was informed at the time of his dismissal that he would be receiving his P45 along with

his notice pay and all other outstanding pay in accordance with the pay roll system. The Claimant, by

same communication, was informed of the time in which he could bring his appeal. A P45 is a tax

document and not a confirmation of dismissal. The Respondent extended the time for the bringing

of an appeal when communication was received from the Claimant’s representative which showed

the Claimant to be in error with respect to the significance of the P45.

36. The significance of the P45 document should be viewed in light of the immanent abolition of the

P45 as a tax document as it no longer serves a useful purpose.

37. The Respondent offered the Claimant the full panoply of rights as required in law. There were

multiple inquiries into the welfare of the Claimant and multiple medical opinions sought. There

Respondent inquired into the possibility of altering the Claimant’s work, redeploying the Claimant

and making adjustments to the workplace. None of these options were reasonable, given the

Claimant’s limited qualifications and competence.

38. It is anticipated that the Claimant will argue that as the Claimant’s injury, which resulted in his

inability to continue to work, came about as a result of a tort committed upon the Claimant by the

Respondent. Such matters, including loss of earnings, are properly to be considered by the Civil

Courts and are not relevant to the fairness or otherwise of the Claimant’s dismissal.

Losses

39. The Respondent wrote to the Claimant’s representative on 19 November 2018 requesting a schedule

of loss.

40. These submissions on loss are based on information available as of 21 November 2018.

41. The Claimant states that the Claimant was unavailable for work for a period of up to 21 days in July

2018.

42. The Claimant has provided a JobPath Activity Log which discloses the Claimant applied for two

roles as a Truck Driver on 24 October 2018 and one job as a driver on 26 October 2018.

43. The Claimant has failed to mitigate his loss by failing to make any or any meaningful efforts to

acquire alternative employment in the 4 months following dismissal.

44. The Claimant obtained a report of D Assessment Training and Employment Consultancy

dated 1 November 2018. This report states as follows:

He is presently intending to pursue his Driver Certificate of Professional Competence for his C

licence, which is mandatory to work as a professional driver.

45. The report also states:

It is questionable if he will have enough English to pass [the theory] section [of the DCPC].

46. The report goes on:

He would be restricted in what area he can work in, i.e. he would be unsuited to any position that

would require him to load or unload deliveries. His poor sitting tolerance and current difficulties

with driving any distance would probably further hinder his ability to secure employment in this

area.

Conclusion

47. The Claimant was not unfairly dismissed.

48. The Claimant failed to utilise the internal processes available to him by which he could have

challenged the fairness or otherwise of the processes.

49. The Respondent fully discharged their duties by seeking to accommodate the Claimant.

50. The Claimant entirely failed in his duty to mitigate his losses.

51. The Claimant’s claim should be dismissed.

In his direct evidence the respondent Mr.McL said that he and his wife run a small family business producing nets.He set out a chronology of the events following the claimant’s approach to return to work after a prolonged period of sick leave.The respondent asserted that part time work was not an option because they needed people there all the time.He asserted that the medical report stated that the claimant was not allowed to bed , stoop , lift or twist ; that you were on your legs all day long and there was no specific job in the company with no lifting.He said apart from the secretarial job in the office, everything else involved lifting and bending.The company had looked at adjustments and that even if they provided waist level trolley’s , workers would still have to stoop and bend.When asked about his correspondence to the claimant advising him of the right to appeal to the same decision maker that decided to dismiss the claimant , Mr.CMcl said ‘ we would look into it like ….we would have asked our HR advisers to do the appeal’.

Under cross examination, Mr.McL said that his wife wrote the letter of dismissal of the 19.06.2018.He accept the claimant was not issued with a handbook or written terms and conditions of employment .The claimant was off sick when they did the first Manual Handling Course but they repeated the course in 2014 and the claimant was on it.Mr.McL stated that the claimant’s working hours were a ‘ 2 way street’ and that the claimant had sought to work additional hours.He stated that he was not familiar with a handbook on a word for word basis and that he was not fully aware of the disciplinary probedure.He would get on to his HR advisers and they would tell him who would do the appeal.The respondent said that all workers earned 11Euros per hour on night shift and 4 Polish workers had been employed by the company since 2014.He asserted that he was unaware of the report from Dr.S until the Court Case.Mr.McL said that DrTMcG said the claimant could not bend or twist and that there was no job suitable for the claimant.When asked about training records , the respondent stated that the men would talk to each other.

Facts

1. The Claimant is a married man with two dependent children. Claimant commenced work

with Respondent as a machinery operative on the 6th of September 2006. He was not given

his terms of employment or details of disciplinary procedure on how to appeal an unfair

dismissal case. The job involved heavy lifting of materials to various heights. No manual

handling or safety training was afforded to claimant. Claimant was paid the minimum wage

which increased prior to termination to €9.75 for daytime shifts and €11.25 approx. for nighttime

shifts. Claimant generally worked additional hours and could average 50-70 per week

hours in busy times. He was not paid overtime. We attach payslips illustrating hours worked.

2. On the 27th of November 2012, Claimant was injured at work when he dropped heavy

materials as he lifted them, which fell on his foot sustaining a crush injury which required

referral to hospital. The Respondent did pay the claimant while was off. Respondent did not

respond by providing safety handling training to avoid further accidents or devise a safe

system of work.

3. On the 24th of July 2014, when claimant was covering the nightshift on his own and lifting a

25kg bag he felt a crack in his lower back, and felt immediate pain and dropped to the ground

and contacted his boss who took him to G.P. The G.P. referred claimant to Letterkenny

General Hospital stating claimant was complaining of left sciatica pain x 3 days and last night

some urinal incontinence, reduced sensation in left buttock/thigh, central disc protrusion.

While sciatica is used to describe the nature of the pain it was later confirmed it involved a

disc impingement.

4. The Claimant did return to work after the factory re-opened and the employer Respondent

did accommodate him with lighter duties. However, because claimant was operating

dangerous machinery and taking pain killers the employer Respondent sent him home on a

few occasions. The claimant could not continue work without painkillers and submitted sick

notes. The claimant believed his job remained open for him, and the Respondent did not pay

him sick pay, albeit he submitted the certificates.

5. The claimant attempted to return to work and his Doctor certified him fit for work (but

lighter duties) and his sick pay was withdrawn. The Claimant was left in the position that he

did not qualify for sick pay (his injuries were insufficient for an invalidity pension) and he was

unable to claim job seekers as he had not been terminated by the Employer. At this time

Claimant sought clarification from his Employer/Respondent.

6. The Respondent required Claimant to attend two Occupational Health Assessments without

covering the costs at a time when he knew Claimant was in dire financial circumstances

having lost his “sick pay” entitlements, but claimant attended. The Occupational Health

Assessments pointed out that he was fit for work and that his inability to do heavy work

would qualify as a disability (under Northern Irish Law) that obliged the employer to

accommodate his restrictions.

7. The Claimants expert Doctor, Mr. F T. S. on the 4th of May 2018 found a good

prognosis but advised he exercise caution at manual work “It appears he has not significant

physical ailment now in relation to 21.07.14”.

8. Claimant had two meetings on the 4th and 11th of December 2017 with Respondent where he

demonstrated his willingness to work even part-time, his polish co-worker was willing to

assist in heavy lifting, and identified alternative lighter duties he could do to maintain his

employment. The Respondent did not make any decision. Nor did he advise Claimant of the

right to Appeal any decision he would make.

9. On the 19th of June 2018 the Respondent wrote to Claimant terminating his employment,

advising him of the right to appeal, by writing to Mr.CMcL, director within 5 days

giving the full reasons for the grounds of his appeal. The Respondent was aware that the

Claimant was unable to read English and could not comply with such a deadline.

10. On the 22nd June 2018, 3 days later, the P45 issued terminating employment dated 19th June

2018.

11. Claimants representative wrote to Respondent on the 3rd July 2018 acknowledging that the

P45 had been issued and asked for a breakdown, pointing out that the termination was

unfair in terminating the Claimant due to an injury inflicted on him by Respondent failing to

provide Claimant a safe place or system of work and procedurally unfair. It was suggested

that an ex-gratia payment of €10,000 in respect of 12 years employment be made, as the

claimant was in desperate financial straits.

12. While the Employer responded extending the time, this was insufficient as there was no

appeal procedure provided, and the time to appeal had already expired.

Submissions

13. There were no terms of employment, disciplinary appeal procedures, Health and Safety, or

any of the basis employee safeguard available to this Claimant.

14. There was no Appeal procedure or details of Appeals process provided to claimant. The

employer cannot rely on Claimant’s failure to utilise “the appeal procedure” which was not in

place. Writing to Mr. McL asking him to change his mind does not amount to an

appeals procedure. There was no “internal disciplinary process”. Mr. McL ignored his

own Occupational Health Reports that Claimant was fit for work, had a meeting which

resulted in a letter of termination and a P45 being issued on the same day, so the reference

to an appeals process was a sham.

15. The P45 is the official document terminating employment and having issued this on the same

day as Notice is fatal to Respondents Claim that there was available to the claimant a fair,

appeals procedure. Writing to the person who terminated him is not a fair “internal

procedure”. When it was pointed out it was unfair, the response extending the time to

appeal after it had expired cannot be justified. There simply was no appeal process, and any

letter was futile as it would be determined by the Respondent who had already terminated

him.

16. The Respondent did not offer the claimant the full panoply of rights. The claimant was

obliged to work in an unsafe system of work, without training, was obliged to work on

average 50-70 hours per week to reach a suitable salary to provide for his family, and was

never given terms of employment, or any procedures, nor were there such procedures in

place.

17. The Claimant is not suited for much alternative employment. He had no opportunity to gain

skills while working for the employer, working often on his own, never offered any training,

doing purely manual labour, which when he hurt himself at work he had no other

opportunity.

Conclusion

18. The Claimant was unfairly dismissed as the employer failed to make any reasonable

accommodation to provide him duties that would accommodate the injury he received at

work due to the employer failing to provide a safe system of work to Claimant.

19. The Claimant was unfairly dismissed procedurally as there was no “internal process”

available to him, and being asked to write within 5 days to the personal who terminated him

does not amount to a fair process.

20. The Respondent made no attempt to accommodate the Claimants injury and there were

duties the claimant was still able to do with accommodation.

21. The claimant is unable to get any work due to the workplace injury, because his only skill was

manual labour, because he does not speak English.

22. The Claimant should be given the maximum compensation because of the gross misconduct

of his employer and his total disregard for protecting his employees or providing them any

protection or process to safeguard their employment rights.

It was submitted that the test that had to be applied was that there was no possibility of the claimant being able to return to work.

In his direct evidence the claimant described his job and the nature of the function of working with spools – he stated he was unaware of his terms and conditions of employment ; he never saw a handbook and was told verbally how to operate the machines It was submitted that the test that had to be applied was that there was no possibility of the claimant being able to return to work.The claimant stated that he never received safety or manual handling training- he was doing the same job from 2006 -2014.He said there was lighter work for example there was a full time job of putting on spools which did not require heavy lifting.The claimant stated that he was paid 9.76Euros on day shift and 11.25Euros at night.He stated he had incurred an injury when a spool fell on his foot in 2012 and described the accident on the 24.07.2014 when he was on night shift.He gave an account of the ensuing medical treatment following visits to his GP and the General Hospital.The plant was closed for 2 weeks and he returned to work after that following his holidays – he was still on pain killers and finding work difficult.He went to McMcL , he sent him home and he commenced a period of extended sick leave.He stated that he got better and obtained a doctors letter confirming that he was fit to return but could only do light duties.The employer sent him to a doctor.The claimant stated that lighter duties were available – i.e. putting spools on a machine but he was never offered this work.He went on to assert that braiding work was also available.He confirmed to Dr.DMc that lighter work was available.The claimant was off for 3.5 years.He said the company were hiring workers – 2 were doing the work he used do and 2 were making nets.The claimant recounted his recall of the meeting with the respondent on the 8.06.2018 .The claimant’s boss was in attendance and his son was there to translate.The claimant said that someone else was doing the claimant’s work at this time.The claimant stated that he did not know what an appeal was about and was never given disciplinary procedures. He said his son did not understand the reference to n appealHe took the dismissal letter to his solicitor.The claimant stated that he had looked for other work as a driver and that he was currently on job seekers allowance.

Under cross examination the claimant confirmed that none of the medical reports said he was fit to return to his own job.While he had indicated he could get help from his colleague , it was put to him that this was something that was not necessarily a solution to his predicament – he said that they were always helping each other but not all the time.The claimant did not seek a translator at the meeting with his employer because his son was there.The claimant was referred to a certificate awarded to him for a half day training course on health & safety , the claimant said it was the first time he had seen it.The claimant did not recall the letter from the respondent dated the 6.07.2018 which extended the time for lodging an appeal against the termination of his employment.The claimant confirmed he was represented throughout the process.

Mr.LC gave evidence as a witness on behalf of the claimant and asserted that 3-4 people were taken on to do the same work as the claimant.He stated that he told Mr.McL that he would assist the claimant when he returned after the accident.Mr.LC asserted that he had never seen a handbook.He acknowledged the work challenges set out in the letter of dismissal to the claimant but did not accept that the claimant would be unable to bend below knee level to access the winders on the bottom row.

I have reviewed the evidence presented at the hearings and noted the authorities relied upon by the parties.It is evident from the medical reports submitted into evidence that the claimant’s injury has given rise to diminished capacity to do the work for which he was originally engaged and in such circumstances it is not unreasonable for an employer to explore if such incapacity should lead to the termination of the claimant’s employment. However , I do not accept that the respondent acted reasonably in effecting the claimant’s dismissal in circumstances where I have concluded on the basis of the respondent’s own records of the meetings that took place with the claimant and his son that there was no meaningful engagement on alternatives to dismissal.No compelling evidence was advanced to demonstrate that the respondent took on board the claimant’s suggestions about modifications and/or part time work.No evidence was presented to demonstrate that the respondent followed through on their committments at the 11th.Dec. 2017 meeting to “ look at staff in that area to see if they are in a position to help”. Additionally, I accept the contention that the claimant’s son did not understand the appeal process and that the offer of an appeal to the decision maker who had already effected the dismissal did not amount to a proper appeal process.In light of the foregoing I find that the dismissal was procedurally unfair.I require the respondent to pay the claimant €10,000 compensation.