Complainant

Respondent

Anonymised Parties

Farm Manager

Farmer

Representatives

Rory Kennedy BL instructed by Powderly Solicitors

Self

Act

Complaint Reference No.

Date of Receipt

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

CA-00022470-001

07/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022470-002

07/10/2018

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

CA-00022470-003

07/10/2018

The Complainant commenced employment with the Respondent on 1st January 1993 as a general operative and became Farm Manager thereafter. The Complainant performed numerous jobs for the Respondent including transporting materials, driving vehicles and operating machinery.

The Complainant was paid a weekly wage of €560.20 for a 46 hour week.

The Complainant has submitted complaints under the Payment of Wages Act, the Terms of Employment (Information) Act and the Unfair Dismissals Act.

CA-00022470-001   Payment of Wages

The Complainant submits that he has not been paid by the Respondent since 4th July 2018.

CA-00022470-002 Terms and Conditions

The Complainant contends that he was never provided with a written employment contract or a copy of his terms and conditions of employment.

CA-00022470-003   Unfair Dismissal

The Complainant submits:

The Respondent company was engaged in the business of agriculture and storage and has a large farm with buildings. It is submitted that the Respondent no longer farms the property and has rented out to third parties the storage sheds.

During the long course of his employment the Complainant worked diligently for the Respondent and there were no previous issues between the parties.

The Complainant was diagnosed with MS in 2004. The Respondent employer was made aware immediately of the diagnosis. The Complainant's work has never been affected by his condition. He has never missed work because of his condition apart from 3 days approximately 7 years ago. Even with his 6 monthly appointments, the Complainant would either swap days or take a holiday.

The Complainant is capable of maintaining his workload and no accusation or complaint has ever been made as to the capability of the Complainant.

On 22nd June 2018, the Respondent sent the Complainant home from work as he said that there was no insurance for him and until the Complainant provided a letter from his neurologist confirming he was fit to drive, he was not to come back to work. The Complainant went in to work again on 25th June 2018 and was again told to leave. There had never been an issue with insurance before and the Complainant possessed a full driving licence which he renewed every 3 years.

In the meeting between the Respondent and the Complainant on 22nd June 2018 the Respondent made the decision to dismiss the Complainant, informing him that he could no longer work at the company and must go home.   The Respondent proffered the reason that there was an insurance “issue” due the Complainant’s medical condition, and he was therefore terminating his employment. It was evident from the almost immediate communication of the decision and the manner in which the meeting was conducted, that the Respondent had made the decision to terminate the Complainant’s employment in haste and without any recourse to fair procedures or giving the Complainant an opportunity to be heard or attaching any weight to the Complainant’s views.

The Respondent then stopped paying the Complainant his regular wage and despite some small payments being made, the Complainant has not been paid since 4th July 2018.

On 4th of August 2018, the Respondent called to the Complainants home and said to the Complainant that he should either go part-time or on disability to reduce his stress levels. He also said to the Complainant that most people at his stage of MS would have "fallen off the edge of the table by now". He said that “if the Complainant took disability now, he would have a better quality of life and that if they met across the table in 10 years’ time that hopefully the Complainant would have no aids or a wheelchair”.

On 14th August 2018, the Complainant attended his place of work and furnished the Respondent with letters from both the Irish Wheelchair Association and his Neurologist confirming he was fit to drive but the Respondent still refused to pay the outstanding monies or furnish the relevant P60s.

On 15th August 2018, the Complainants’ solicitor wrote to the Respondent seeking immediate reinstatement on the books and P60s for 2016 and 2017, and sight of the relevant correspondence from the insurance company.

The Respondent did not initially respond and eventually a letter was received from the Respondent on 30th August 2018 with a copy of a letter from his insurance company seeking a medical report. However, the letter also confirmed that the renewal date on the policy was 25th January 2019. The letter is dated after 25th June 2018.

The Complainant is aware that the lands previously farmed by the Respondent and his sheds for grains are now rented out. The Respondent has not sown any grain in 2017 or 2018. The Complainant feels that the Respondent wanted to get rid of him by whatever means necessary in order to avoid paying him redundancy.

The Complainant has brought a claim pursuant to the Unfair Dismissals Act, 1977, and it is the Complainant’s case that he was denied fair procedures and that the dismissal was unfair, having regard to the relevant legislation and applicable principles. The Complainant was not put on notice that he might be dismissed and was not afforded the opportunity to express his views in relation to his termination.

It is further the Complainant’s submission that in reality, his position has in fact been made redundant and he is entitled to compensation in respect of the loss of the redundancy payments he would otherwise have been entitled to. The position remains vacant and it is submitted the position no longer exists.

The Complainant has attempted to find alternative work since his dismissal but finds that his condition is off putting to all potential employers. The Complainant has therefore been unable to secure alternative work since his dismissal.

The Complainant cited the following precedents in support of his case: Garvey v Ireland [1981] IR 75 at 97, Bolger v Showerings (Ireland) Ltd [1990] ELR 184, Kearney v Tesco (UD86/2010) and Delaney v Central Bank of Ireland [2011] IEHC 212.

CA-00022470-001   Payment of Wages

The Respondent submits that he has not dismissed the Complainant and have asked him to return to do non-driving work but he has not returned. The Respondent has continued to pay all the Complainant’s taxes e.g. PAYE, PRSI and USC to date.

CA-00022470-002 Terms and Conditions

The Respondent concedes that the Complainant was not issued with a copy of his Terms and Conditions during his employment with the Respondent.

CA-00022470-003   Unfair Dismissal

The Respondent submits that:

In 2004 it came to his attention that the Complainant had been diagnosed with MS and the symptoms were tingling sensations in the tips of his fingers and reduced feelings in his hands. At that time the Respondent had discussed the implications of his diagnosis with the Complainant as driving agricultural machinery is a touch button and screen touch business. e.g. combine harvesters and sprayers, etc. are controlled by electronic panels and finger sensitivity is a critical issue.

He sought advice from a medical person as to the future fitness to work of the Complainant from a health and safety aspect. The advice he received was to reduce stress to absolute minimum levels and to reduce working hours to alleviate tiredness.   The parties agreed that the Complainant would no longer have any managerial responsibilities and would reduce his hours during busy harvesting seasons. This increased the Respondent’s workload and new staff had to be employed to help out.

He had ongoing discussions with the Complainant regarding his state of health primarily around the areas of health and safety and quality of life.

The Complainant showed great determination and stamina to stay working. The Complainant was very safety conscious and well aware of his abilities and disabilities and the parties worked around them as much as possible. Latterly the Respondent did the physical work and the Complainant did the driving as much as possible

The parties agreed that they would make every effort to enable the Complainant to continue working for as long as possible. The Respondent agreed to let the Complainant work at his own pace and not harry or hurry him and this worked well and his condition remained static for some time.

The Complainant deteriorated over the years and very occasionally had a fall as one of his legs was weaker than the other. He was limping continuously when tired and this became a worry for the Respondent as tractors have heavy clutches and brakes needing strong reactions and pressure. The Complainant struggled to work full days and eventually on 22nd September 2017 the Complainant discussed going part time after Christmas as the workload and physical demands were hard to maintain. Having worked with the Complainant, the Respondent felt it was the right decision from a quality of life point of view and health and safety perspective. The parties discussed social welfare, disability aids, etc. to see what was suitable for the Complainant to maintain a work life balance coupled with financial security.

On foot of the Complainant’s disclosure on the 22nd September 2017, the Respondent needed to plan his future in agriculture and as staff was were impossible to recruit with the resurgence in the building and development trade, he decided to reduce his farm size down from 1100 acres to 450 acres which was manageable on his own with part-time help.

On returning to work in January 2018, when the Respondent discussed the Complainant’s request for part-time work with him, the Complainant replied that he could not afford to go part-time as he needed the money. The Respondent had made managerial decisions based on his belief that the Complainant wished to reduce his working hours.

The Respondent went on a family holiday in March 2018 and on his return discovered that the Complainant had cut his hand on the chainsaw while doing routine maintenance. The Complainant did not notify him of the accident. The Complainant was given 5 days of sick leave.

The Respondent notified his insurance company of the incident.

The insurance company were aware of the Complainant’s condition and they agreed to insure him on the Respondent’s policy as long as the Respondent was happy that he was safe.

The Respondent was becoming concerned from a health and safety perspective and he asked the Complainant for reassurances for his protection and also for the Complainant’s protection.

The Irish Wheelchair Association furnished a fitness to drive a car certificate but to date he has not received any reassurances from the Complainant’s neurologist that the Complainant is fit to drive heavy agricultural machinery. The Respondent would not let the Complainant drive until he was happy that he was in a fit medical condition to do so.

CA-00022470-002 Terms and Conditions

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …”

Based on the totality of the evidence adduced, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded

CA-00022470-003   Unfair Dismissal

Section 6(1) of the Unfair Dismissals Act 1977 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 Unfair Dismissals Act places on onus on an employer to act reasonably when making a decision whether to terminate the employment of an employee.

In the herein case the Respondent has submitted that the Complainant has not been dismissed and that the Respondent has in fact asked him to do non-driving work.

The first matter for me to decide, therefore, is if the Complainant was in fact dismissed from his job.

As the Employment Appeals Tribunal put it in Devaney v DNT Distribution Company Ltd (UD 412/1993):

“Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

I am of the view, that in order to answer this question, I must examine the chronology of the events which led to this referral to the WRC in order to determine if a dismissal did take place.

I note the Respondent’s submission the Complainant approached him on 22nd September 2017 to discuss going part-time after Christmas. This is strongly disputed by the Complainant.   The Respondent asserts that the Complainant’s approach caused him to evaluate his future plans and he decided to reduce the size of his farm to a size that he could manage on his own with some part-time help. I have difficulty believing that the Respondent would have made a decision of such magnitude based on a single conversation with the Complainant.

The Respondent’s version of events conflicts with the Complaint’s submission – which was not disputed by the Respondent – that the Respondent had not sown any grain in 2017.

The fact that the Respondent had not sown a crop in 2017 leads me to believe that the Respondent had made a decision about downsizing prior to September 2017 and that the Respondent’s decision to downsize was not prompted by any action on the part of the Complainant.

The Respondent maintained that he became concerned about the Complainant’s fitness for work on his return from holidays in March 2018 when he discovered that the Complainant had cut his hand on a chainsaw.   At the adjudication hearing the Complainant said that the Respondent had also injured himself with a chainsaw around the same time as the Complainant had done so. This was not disputed by the Respondent. It is noteworthy that the Respondent’s accident did not lead him to question his own fitness for work.  

The Respondent contends that, as a result of the Complainant’s injury, he contacted his insurance company who, according to his evidence, agreed to continue to insure the Complainant provided that the Respondent was satisfied that it was safe to do so. The Respondent did not provide any documentary evidence to substantiate his submission.

Frankly, I find the Respondent’s assertion difficult to reconcile with a letter from his insurance company dated 28th August 2018 which was submitted in evidence. In that letter, the insurance company wrote as follows:

“You have recently advised that your employee has a medical condition which may affect his ability to drive and operate a vehicle. In order for us to clarify matters we will require a medical report in respect of the Complainant at your expense to confirm his suitability for driving. We will require this report within 10 days of the date of this letter.”

I fail to understand how the advice from the Respondent’s insurance company changed so significantly between June and August 2018. According to the Respondent, in June the insurance company was happy for him to assess the level of risk associated with the Complainant’s continuing employment whereas in August the insurance company sought a medical report in respect of the Complainant to confirm his suitability for driving.

The Complainant maintained that the Respondent called to his house on 4th August 2018 and said that the Complainant should either go part-time or on disability. Furthermore, he maintained that the Respondent said that if he took disability he would have a better quality of life and that if they met in 10 years’ time, that hopefully the Complainant would have no aids or a wheelchair.

The Respondent disputed this version of events and said that he visited the Complainant to offer him a return to work to do non-driving work.

On the balance of probabilities, I prefer the Complainant’s narrative especially since the Respondent informed the hearing that, in light of the Complainant’s condition, they had agreed previously that the Complainant would do most of the driving and the Respondent would do most of the manual work. It is difficult, therefore, to understand how the Complainant could now be considered to be suitable for a non-driving role.

According to the Complainant, he went to his place of work on 14th August 2018 and gave the Respondent a letter from the Irish Wheelchair Association confirming that it was safe for him to drive and a letter from his neurologist confirming that he had no difficulty with balance and his cognitive assessment score was normal (copies of the letters were exhibited at the hearing). The Complainant contends that the Respondent informed him that the letters were insufficient.

In Eamonn Blair v Coverall Courier Services Ltd (UD 1263/2013)where the Respondent disputed the medical certificates supplied by the Complainant, the Employment Appeals Tribunal held that:

“It was clear to the Tribunal that the medical evidence provided by the claimant to the respondent established that the claimant was fit to return to work. The respondent could have had the claimant medically examined by their own medical practitioner to verify this fact but failed to do so. It follows that without medical evidence to the contrary they were not entitled to disregard the evidence of the claimant.”

An analogous situation pertains in this case. I find that if the Respondent was not satisfied with the medical opinions supplied by the Complainant, he should have sought his own medical opinion before coming to a conclusion as to the fitness of the Complainant.

By the time the Complainant submitted his claim to the WRC on 7th October 2018, he was aware that the lands previously farmed by the Respondent and his sheds for grain were rented out.

Taking all of the above into account, I am satisfied that it was reasonable for the Complainant to assume that he had been dismissed.

Whilst there was no written contract in place between the parties, I find that there was an oral or implied contract between the parties which obliged the Respondent to pay the Complainant his wages each week.  

I find that when the Respondent arbitrarily ceased paying the Complainant without any warning or consultation, he repudiated the contract. I find that it is a nonsense that the Respondent would continue remitting taxes in respect of the Complainant after he had ceased paying him his wages.

I find that the Complainant was dismissed with effect from 5th July 2018 the day after the Respondent last paid wages to the Complainant.

I must now decide if the Complainant’s dismissal was unfair.

Section 6 (4) (a) of the Unfair Dismissal Act 1997 provides as follows:

“Without prejudice to the generality of subsection (1) the dismissal of an employee shall be deemed, for the purpose of the act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a)    The capability, competence or qualifications of the employee for performing work of the kind required which he was employed by the employer to do”

In the case of Bolger v Showerings (Ireland) Limited [1990 ELR 184] the High Court set out the following key requirements to be met when an employee is being dismissed for incapacity:

·         “i) Ill health must be the reason for the dismissal;

·         ii) This must be a substantial reason;

·         iii) The employee must be notified that dismissal for incapacity is being considered; and

·         iv) The employee must be given a chance to be heard”

In the herein case, I find that none of the above requirements have been met.

The Respondent appears to have formed the opinion that the Complainant was not fit for work due to his health difficulties. He expressed himself not to be happy with the medical certificates attesting to his fitness for work which he received from the Complainant. As I found elsewhere in this Decision, it was open to the Respondent to seek his own medical opinion as to the fitness of the Complainant. The Respondent did not, however, avail of this option and did not take any meaningful steps to assess if there was a substantial reason why the Complainant could not continue in employment.

Furthermore, contrary to the requirement set out in Bolger v Showerings, I find that at no stage was the Complainant notified that dismissal for incapacity was being considered by the Respondent. In the absence of such notification, the possibility of the Complainant being afforded the opportunity to be heard did not arise.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is well founded.

I find that the Complainant was unfairly dismissed from his employment with the Respondent.

In an effort to mitigate his loss, the Complainant has applied for alternative positions. However, his medical condition makes it difficult for him to secure employment.

CA-00022470-001   Payment of Wages

In light of my findings above that the Complainant was dismissed with effect from 5th July 2018, I find that this complaint is not well-founded.

CA-00022470-002 Terms and Conditions

I direct the Respondent to pay to the Complainant compensation in the amount of €2,240 being the equivalent of approximately four weeks’ pay in respect of the contravention.

CA-00022470-003   Unfair Dismissal

For the reasons set out above I uphold this complaint and award the Complainant one year’s salary (approximately) in the amount of €29,000. In making my award I take account of the Complainant’s probable difficulty in securing employment.

CA-00022470-001   Payment of Wages

I find that this complaint is not well-founded.

Disputed dismissal, unfair dismissal, incapacity, terms of employment, payment of wages