Complainant

Respondent

Anonymised Parties

An Employee

A Hotel

Representatives

John Brennan Ibec West

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-00018256-001

02/04/2018

The Complainant commenced employment, with the Respondent, a hotel, on 23 September 2003, as a Doorman. The Complainant became a Concierge in 2011. Ownership of the Respondent’s hotel changed to the current owners in 2014.

In November 2014, the Complainant submitted a medical certificate citing work-related stress. An Occupational Health assessment in January 2015 found the Complainant to be unfit for work for 6 to 8 weeks. A further Occupational Health assessment took place in July 2015 which advised that the Complainant was unfit to work or to engage in any form of industrial relations process regarding his issues of concern in the workplace.

In September 2015, the Complainant requested a formal meeting with the Respondent HR Department to discuss his grievance, regarding alleged prolonged mistreatment and harassment as an employee. A meeting for this purpose took place on 7 October 2015. The Complainant was invited to attend a further meeting to discuss his grievance, on 15 October 2015. However, at the Complainant’s request this meeting took place by phone on 14 October 2015.

The outcome of the Respondent’s investigation into the Complainant’s grievance issued on 22 October 2015. According to the Grievance Report, the Complainant’s complaints were not upheld. The findings also referred to the delay in reporting allegations, some of which were more than two years old and made against employees who were no longer working for the Respondent.

The Complainant, who refused to accept the outcome, was advised that he had seven working days to appeal the decision to the Respondent’s General Manager. On 29 October 2015, the Respondent received a letter from the Complainant’s solicitor seeking an extension of seven days in the appeal deadline. Following further requests from the Complainant and his solicitor, an extension of 11 working days was granted by the Respondent. However, the Complainant did not appeal the outcome of the investigation.

On 22 February 2016, the Respondent wrote to the Complainant with regard to outstanding rent due in relation to his use of staff accommodation. The letter gave the Complainant 28 days’ notice to move out of the accommodation and remove his personal belongings. The Complainant moved out of the accommodation on 26 April 2016 at which time there was outstanding rent due in the sum of €2,700.

The Respondent wrote to the Complainant on 26 July 2016 inviting him to attend an Occupational Health appointment in order to ascertain his current health situation and assess the potential for a return to work. The appointment took place on 12 August 2016 and the Occupational Health Consultant advised the Respondent that, while the Complainant was not on any medication or attending any additional medical/allied health practitioner, other than monthly visits to his GP, he was still unfit for work, with work-related issues remaining a barrier to his successful return to work.

The Complainant submitted a Letter of Grievance, alleging that he was being bullied, to the Respondent’s General Manager on 21 November 2016. The General Manager conducted an investigation into grievance, which included a meeting with the Complainant on 7 December 2016, and issued his Report on 10 January 2017. This Report contained findings on each of the Complainant’s 48 individual items of complaint/grievance. The Complainant appealed the outcome of the General Managers investigation. A senior executive from the Respondent’s UK office was appointed to hear the Complainant’s appeal. On the date scheduled for the appeal meeting the Complainant failed to attend.

The Complainant attended an Occupational Health assessment on 15 June 2017. A further assessment took place on 3 August 2017, following which, the Occupational Health Consultant advised the Respondent that a return to work, by the Complainant, would not be successful at that time and that the position was unlikely to change in the medium-term, i.e. 3 to 6 months at least.

The Respondent’s Director of Operations (DO) wrote to the Complainant on 18, 21 and 24 August 2017. The DO met with the Complainant on 13 September 2017 with regard to his position and the possible return to work. At this meeting, the DO requested the Complainant to respond within seven days with suggestions which would facilitate a return to work.

In a letter dated 4 October 2017, the Respondent’s Director of Operations wrote to the Complainant and advised that, as he had been absent from work since November 2014 and given the findings of the Occupational Health Assessments, the Respondent was not in position to keep his post open indefinitely and were, therefore, unable to maintain his employment. The Complainant’s employment terminated with immediate effect.

By way of email to the Respondent’s General Manager, dated 11 October 2017, the Complainant advised that he was appealing the decision to terminate his employment. In this correspondence, the Complainant also referred to the fact that he had submitted a complaint to the Workplace Relations Commission on 7 September 2017 seeking an “unbiased adjudication at the WRC.

By way of letter dated 17 October 2017, the Complainant was informed that his appeal would be heard on 25 October 2017. In a further letter, dated 24 October, the Respondent’s General Manager, advised that the meeting the following day was to provide him (the Complainant) with an opportunity to outline his grounds for appeal. The Complainant did not attend the appeal meeting.

The Complainant submitted his complaint of unfair dismissal to the Workplace Relations Commission on 2 April 2018. That complaint, which is the subject of this adjudication, was investigated in full at Oral Hearings heard on 7 March 2019 and 27 May 2019.

In his complaint form to the WRC, the Complainant submitted a series of allegations and incidents, which he claimed were relevant to and underpinned his dismissal. Among the issues raised by the Complainant in this regard, were the following:

·       His work life was being managed by department line management to become increasingly difficult for him, particularly around the time of his career progression in 2011, when he became Concierge.

·       As he sought to address matters informally, the array of difficulties continued.

·       Beginning in Spring 2014, a more coordinated and constructed sequence of events led to an increase in the frequency and escalation of the bullying against him.

·       Verbally targeted and singled out by management and openly verbally abused by staff, Including indirect verbal threat to his well-being.

·       Personalised company email account tampered with and files deleted.

·       Management obstructed him in the grievance process and outcomes, in which certain members of management self-adjudicated his grievance and, therefore, denied him impartiality in the process.

·       Requests for impartial adjudication refused.

As a result of all of the above, the Complainant submitted that he suffered from work-related post-traumatic stress disorder. It was further submitted that management misled details of medical certificates and were non-responsive to health and safety calls from him which appeared in the company doctor’s medical report.   According to the Complainant, his employer denied him an impartial hearing of his grievances and their lack of care in this regard led to his constructed isolation as an employee. As a result, the Complainant submitted that this led to him being unfairly dismissed, by a newly recruited manager, who was still on probation at the time of his (the Complainant’s) dismissal.

At the first Oral Hearing, the Complainant introduced a significant volume of supporting evidence including documentation and correspondence pertaining to the allegations/incidents detailed above going back to 2014 and beyond. Given the volume of evidence submitted, it was necessary to reschedule a second hearing date so that all material could be appropriately dealt with.

At the commencement of the second Oral Hearing, the Complainant presented a further detailed submission in support of his complaint and, in particular, in response to the Respondent’s submission which had been placed on record during the first hearing.

In this submission, the Complainant claimed that he had been obstructed and bullied by the Respondent, who delayed and denied fair process. In support of his contention in this regard, the Complainant provided a detailed chronology of events, commencing in 2013.

In addition, the Complainant contended that the Respondent’s Director of Operations (DO), who conducted the dismissal process, which led to his dismissal, was an inappropriate person for such a role. According to the Complainant, the appointment of the DO, a newly recruited employee, who was still on probation, raised a serious question marks over the appropriateness and fairness of the dismissal process.

Finally, the Complainant highlighted issues with the management of the sick leave/medical process, including his assessment by Occupational Health consultants, which he feels demonstrated a lack of appropriateness and fairness, in the context of the role his sickness absence played in his dismissal.

In conclusion, the Complainant submitted that the Respondent took a very heavy-handed approach to his situation and treated him unfairly, by dismissing him.

The Respondent provided a detailed chronology and background to the complaint, commencing with the Complainant’s sick leave in November 2014 and concluding with the dismissal process which culminated in his dismissal on 4 October 2018. The Respondent also submitted documentary evidence in support of their submissions in this regard.

In addition, the Respondent submitted that the termination of the Complainant’s employment was wholly on the grounds of incapacity to perform the work for which he was employed. According to the Respondent, there is no dispute that the Complainant was incapable of performing his work from November 2014 up to and beyond the date of his dismissal, in late 2017.

In support of their submission in this regard, the Respondent cited Section 6 (4) (a) of the Unfair Dismissal of Acts, as amended. They also supported the contentions in this regard by citing the cases of Dunnes Stores Ltd v Elaine O’Brien [UDD17141] and Bolger v Showerings (Ireland) Ltd [1990 ELR184]. In particular, the Respondent referred to the four tests, as set out in the Bolger case, which an employer is required to demonstrate, in order to prove that a dismissal is fair. According to the Respondent, all four elements are present in the within case.

The Respondent further submitted that the Complainant’s dismissal was due to lack of capability, based on medical evidence. According to the Respondent, the Complainant was informed throughout the process and by letter, following a lengthy review process, that his employment may be terminated on the grounds of incapability. The Respondent submitted that the Complainant was given every opportunity to provide representation on his behalf throughout the process. It was further submitted that the Complainant was provided with the right of appeal, which he failed to avail of, despite being provided with extended deadlines in this regard.

In conclusion, the Respondent submitted that this was not an unfair dismissal but was a termination of a contract of employment as a result of long-term absence, without any sign of a reasonable chance of recovery and return to work at the time of the dismissal.

Having carefully considered the submissions made by and on behalf of both the Complainant and the Respondent and, in particular, having reviewed, in detail, the evidence presented by the Complainant, it is clear that significant difficulties had evolved in the working relationship between the parties over the latter five/six years of the Complainant’s employment.

It is also clear, from the evidence, that the Complainant’s dissatisfaction and grievances with his employer are long-standing and deep-seated. In support of his within complaint, the Complainant set out a detailed history and sequence of events commencing in 2010/11 and culminating in November 2014 when he went on sick leave, from which he never returned to work.

The Complainant’s dissatisfaction and frustration with what he deems as his ongoing mistreatment by the Respondent and their failure to deal appropriately with his grievance is very evident. However, the adjudication of his current complaint does not provide a platform for reopening those past grievances for reassessment.

While it is clear that the Complainant is not satisfied with the outcomes, the evidence shows that his grievances were given considerable attention and consideration, by the Respondent, over a long period of time.   This consideration and attention is exemplified, in particularly, in a letter of response, dated 10 January 2017, from the Respondent’s General Manager, in which each of the Complainant’s 48 grievances were individually addressed and outcomes provided. The evidence further shows that the Complainant was offered the opportunity of appealing these outcomes, which he exercised, but was unsuccessful in his appeal.

Therefore, taking all of the above into consideration, I am satisfied that the matter before me solely relates to the Complainant’s dismissal in October 2017.

The Complainant was dismissed, on 4 October 2017, on the basis that he was no longer capable of performing the work for which he had been employed. Based on the Complainant’s absence from the workplace since November 2014 and, in a context where Occupational Health assessments did not provide any indication as to when he might be in a position to return to work, the Respondent concluded that they were unable to maintain his employment.

Consequently, the assessment of the Complainant's complaint must focus on the reasonableness or otherwise of the Respondent’s decision, as set out in their letter to the Complainant dated 4 October 2017.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this 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 which he was employed by the employer to do….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in all the circumstances. It is well established in case law, that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

Given that the Complainant’s dismissal stemmed from his absence from work, I carefully reviewed the period between his going on sick leave in November 2014 and his dismissal in October 2017, in order to determine the reasonableness or otherwise of the Respondent’s action in terminating the Complainant’s contract of employment.

The Complainant commenced his sick leave on 4 November 2014. On 16 January 2015, the Respondent had the Complainant assessed by an Occupational Health Consultant, who reported that he was unfit for work for at least 6/8 weeks.   In addition, the OH Consultant reported that she suggested to the Complainant he consider meeting with the Respondent’s HR Manager, with a view to discussing “his issues of concern in relation to his workplace”.

A further Occupational Health took place on 10 July 2015 and, on this occasion, reported that the Complainant was unfit for work and unfit to engage in any formal industrial relations process.

In September 2015, the Complainant sought a meeting with Human Resources in order to discuss his grievances. Following a number of interactions with the Complainant during October 2015, the Human Resources Manager issued a report of her investigation of his grievances on 22 October 2015. In her Investigation Report, the HR Manager addressed in excess of 30 complaints/grievances made by the Complainant against various colleagues and members of management.

According to the Report, it was not possible to draw definitive conclusions on the vast majority of the complaints/grievances due to, inter alia, lack of evidence, employees against whom complaints were made were no longer working for the Respondent, the fact that some of the grievances dated back over a number of years and had not been reported by the Complainant at the time they occurred, thereby making it very difficult to properly investigate such grievances. With regard to the Complainant’s allegation of bullying, the Investigation found that repeated inappropriate behaviour had not been demonstrated.

In her conclusion to the report, the HR Manager indicated that the Respondent was looking forward to working with the Complainant on a possible return to work once his health had improved sufficiently to allow him to return. The evidence suggests that the Complainant was dissatisfied with the outcome and indicated his intention to appeal same. It is noted, from the evidence, that the Complainant had legal representation at this point in time. Despite the Respondent granting a number of extensions of the appeal deadline, when requested to do so by the Complainant and/or solicitor, the Complainant did not follow through with his appeal.

As he had not returned to work over the following three months, the Complainant was asked to attend for an Occupational Health assessment on 5 February 2016. In the report arising from this appointment, the Consultant reported that while the Complainant was unfit to return to work, he was fit to engage with the employer in relation to workplace matters.

On the basis that the Complainant had still not returned to work, the Respondent wrote to him again on 26 July 2016 inviting him to a further Occupational Health assessment, which took place on 12 August 2016. The report following this assessment was received by the Respondent on 24 October 2016. In the context of considering the Respondent’s reasonableness in relation to their handling of the Complainant’s absence from work, I find this Occupational Health report to be of particular significance. The report states, inter alia, that:

·       The Complainant reported stress type symptoms which tend to escalate in tandem with communication with his workplace and contemplation of his work-related situation.

·       That apart from monthly visits to his GP, the Complainant is not on any medication or attending any additional medical/allied health practitioner.

·       The Complainant is currently unfit for work and that it was difficult to predict accurately his prognosis for a return to work given the nature of the ongoing difficulties at work.

However, in the context of the Respondent’s management of the overall situation regarding the Complainant’s absence from work, I believe that the OH Consultant’s assessment that, while the Complainant’s overall well-being had improved, the work-related issues remained a barrier to his successful return to work, to be of considerable significance. Any objective interpretation of this assessment would lead a reasonable employer to conclude that the issues preventing the employee’s return to work related more to employee relations matters then to underlying health issues.

Consequently, when the Complainant submitted a letter of grievance on 21 November 2016, it would have been reasonable for the Respondent to conclude that appropriate and comprehensive attention to these grievances would, more than likely, pave the way for the Complainant’s eventual return to work. Having carefully reviewed all of the evidence adduced, in this regard, I am satisfied that the Respondent dealt with the Complainant’s grievances in a considered and balanced manner. Reference has already been made above to the detailed report, which issued on 10 January 2017, into the investigation of the 48 grievances submitted by the Complainant. The evidence further shows that the Complainant availed of the opportunity to appeal the outcome of the grievance investigation process, but his appeal was unsuccessful.

It is clear from the evidence that the Respondent’s detailed and comprehensive steps to address the Complainant’s grievances did not result in the latter’s return to work. Consequently, in that context and against a background where the Occupational Health report of 12 August 2016 had identified the Complainant’s grievances as the main barrier to his return to work, I find it is not unreasonable that, as the evidence suggests, the Respondent began to consider the tenability of the Complainant’s ongoing employment status.

A further Occupational Health assessment, conducted on behalf of the Respondent, on 3 August 2017, reported that the Complainant was “unfit for work for the foreseeable future”. However, the report goes on to state that the Complainant “retains a profound sense of grievance” in relation to issues in his workplace. The evidence shows that, following this report, the Respondent’s next action was to write to the Complainant, on 18 and 24 August 2017, advising him that as his position was under review, they wished to establish if he would be able to return to work in the near future. A meeting, set up for this purpose, took place on 13 September 2017 and was chaired by the Respondent’s Director of Operations.

At this meeting, the Complainant was requested to put forward suggestions or recommendations, by 21 September 2017, which would facilitate a return to work. The evidence indicates that the Complainant did not provide the requested suggestions/recommendations by the required deadline. Consequently, the Director of Operations wrote to the Complainant on 4 October 2017 advising that, due to his continued absence from work since November 2014, they were no longer able to hold his position open indefinitely and were terminating his employment with immediate effect. The evidence shows that while the Complainant indicated his desire to appeal the dismissal decision, he did not appropriately proceed to do so.

Taking all of the above into consideration, it is clear that the matter for consideration is whether or not it was reasonable for the Respondent to terminate the Complainant’s employment in the circumstances that existed at that time.

By the time the Respondent terminated the Complainant’s employment in October 2017, the latter had been absent from work on extended sick leave since November 2014. In the interim, the Respondent had made two specific, comprehensive attempts to address the Complainant’s long list of grievances, which stretched back over a number of years.

In addition, any reasonable interpretation of the various Occupational Health Assessments, which were carried out in relation to the Complainant’s continued absence from work, would have led the Respondent to the conclusion that the only issues preventing the Complainant’s return to work was, as stated in the most recent OH assessment, that of 3 August 2017, was his “profound sense of grievance”.   I am also of the view that, given the failure of their two previous attempts to address the Complainant’s grievances/complaints, many of which dated back to a period prior to him going on sick leave in November 2014, it was not unreasonable for the Respondent to conclude that the Complainant’s sense of grievance was such that his return to work was very unlikely.

Consequently, it is clear, from the evidence adduced, that, in the absence of any meaningful proposal from the Complainant which might facilitate a return to work, the Respondent concluded that they could no longer keep his position open and moved, therefore, to terminate the Complainant’s employment.

Having carefully considered all the evidence adduced in this case and, in the particular, the circumstances that obtained by the end of 2017, I am satisfied that the Respondent’s decision to terminate the Complainant’s employment was reasonable and was one which a reasonable employer, in a similar situation, might well take.

While the Complainant’s submissions at the Oral Hearings primarily consisted of a restating of his various grievances and issues with his employer, he did raise one procedural matter pertaining to the termination of his employment in October 2017. The Complainant contended that the Director of Operations was an inappropriate or unfit person to conduct the disciplinary process. The Complainant based this contention on the fact that the Director of Operations had been recently recruited by the Respondent and was, at the time he conducted the process which led to the Complainant’s dismissal, still serving the probationary period in his contract of employment.

Having carefully considered all the evidence adduced, in this regard, I do not agree with the Complainant’s contention that the Director of Operations an inappropriate or unfit person to have conducted the disciplinary procedure.

Firstly, I find that, in the context of the history relating to the Complainant’s grievances against various colleagues and members of management, the appointment of the Director of Operations as the person to conduct the disciplinary process was most appropriate and, in fact, enhanced the objectivity of the process. As a newly appointed member of the senior management team, the Director of Operations had no prior involvement with any of the matters pertaining to the Complainant’s employment and which had given rise to the instigation of the disciplinary procedures.

Secondly, I find the fact the Director of Operations was serving out a probationary period in his contract of employment has no bearing on his ability and/or appropriateness to conduct a disciplinary process. The Director of Operations recent recruitment into a senior management position was, no doubt, based on appropriate qualification and/or experience in relevant management positions. This would, in turn, indicate sufficient capability and capacity existed to conduct a disciplinary process of the nature involved in this case. Finally, in this regard, it is noted that the Director of Operations successfully completed his probation and remains in the employment of the Respondent.

Consequently, taking all of the above into consideration, I find that the Respondent’s termination of the Complainant’s employment was reasonable in all of the circumstances pertaining at that time. Therefore, I find that the Complainant’s claim of unfair dismissal is not, in the circumstances, well-founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of unfair dismissal is not well founded and is, therefore, rejected.

Unfair Dismissals Act