Complainant

Respondent

Anonymised Parties

A General Operative

A Chocolate Manufacturer

Representatives

E.M. O'Hanrahan Solicitors

Rennick Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031798-001

24/10/2019

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

CA-00031798-002

24/10/2019

The complainant submits that he was unfairly dismissed by the respondent on the 17th of September 2019.   He has submitted complaints to the Workplace Relations Commission on 24 October 2019, under the Minimum Notice and Terms of Employment Act 1973 and the Unfair Dismissals Act 1977.  I proceeded to a hearing of these matters on 17th of February 2020.

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

CA-00031798-002

24/10/2019

The complainant submits that

He was employed by the respondent as a general operative for 11 years and was dismissed from his employment on the 17th of September 2019,

He appealed the decision to dismiss but his appeal was unsuccessful.

The respondent submits that

The Complainant was employed by the Respondent as a General Operative,

He went on holiday in August 2019 during which he went home to Poland and was due to return to work in Ireland on the 22nd of August 2019, which he failed to do,

The complainant was called to a disciplinary hearing on the 17th of September 2019 after he failed to follow management instructions by unilaterally extending his holidays without authorisation and ignoring company policy in relation to the submission of relevant medical certificates,

The complainant did not attend the disciplinary hearing and a decision was taken to dismiss him,

The complainant appealed this decision and an appeal hearing was held on the 2nd of October 2019, but was unsuccessful in his appeal.

Section 6(1) of the Unfair Dismissals Act 1977 provides 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 all the circumstances, there were substantial grounds justifying the dismissal.”

In such cases the burden of proof rests with the Respondent to establish the substantial grounds justifying the dismissal of the Complainant.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes 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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides       “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or 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 justifying the dismissal”

The complainant in the present case advised the hearing that he was subjected to an unfair dismissal by the respondent when he was dismissed from his employment after informing the respondent that he was medically certified as unfit to work while on holiday in Poland in August 2019.  The complainant stated that the reason given for his dismissal was failure to comply with company policy in respect of his sick absence when he submitted a medical certificate while on holidays in Poland asserting that he was unable to return to work on his expected return date. The complainant alleges that the sick cert related to an injury which he had sustained at work on the day he went on Annual Leave and for which he attended the company doctor prior to his departure.

The respondent advised the hearing that the complaint had gone on scheduled holidays on 7th of August 2019 and had been due back to work on the 22nd of August 2019. On the morning of the 6th August 2019, prior to going on his holidays the Complainant reported that he had pulled a muscle in his right arm whilst working in the packing room. The Complainant was referred to the Company Doctor and was referred for x-ray. The x-ray did not show any fracture.   The Doctor did not certify the Complainant as being unfit to work.   The respondent told the hearing that the complainant himself returned to the office that day after the doctor’s visit and advised the respondent that he was fine.

The Complainant proceeded with his holidays as planned and went home to Poland on the 7th of August 2019.   The respondent advised the hearing that the complainant while on holiday in Poland had emailed the respondent on the 9th of August 2019 enclosing a Polish medical certificate.     The respondent stated that they had replied to the complainant by email dated the 13th of August advising him that the company requirements for medical certificates as per the Company Handbook required a medical certificate from an Irish based medical practitioner. The respondent advised the complainant that in the absence of such certification he was expected back at work on the 22nd of August 2019.

The respondent as justification for the requirement of a cert from an Irish based doctor sated that it had introduced this policy in 2017 as a result of a pattern having arisen whereby workers when on holidays had very high rates of illness.   The respondent stated that 80% of its staff were foreign nationals who went home on holidays and many of its workers had displayed a tendency to extend their holidays by submitting sick certs at the end of these holidays.    The respondent advised the hearing that the complainant himself had also become unwell while on holiday in Poland the previous year in June 2018.   The respondent as evidence of this provided a letter issued to the complainant on 20th of June 2018 when the complainant while on annual leave and had advised the respondent that he was unwell and had been certified as sick by a doctor in Poland. The letter issued to the complainant by the respondent on 20th of June 2018 outlined the requirement to provide a medical cert from an Irish based practitioner. The respondent on that occasion advised the complainant that he would be paid three days sick leave and that he would be required to attend an Irish registered doctor when he returned or that the respondent could refer him to the company doctor.

The complainant at the hearing asserted that the respondents policy of requiring a sick cert to be issued by a GP based in Ireland was discriminatory. The respondent argued that the policy is not discriminatory as it applies equally to all employees irrespective of their nationality and that an Irish employee who got sick on holidays abroad would still be required to return to the jurisdiction to obtain a sick certificate from an Irish based doctor.   The respondent also stated that a medical certificate from a Polish doctor based in Ireland is equally acceptable.   No complaint has been lodged by the complainant in respect of the assertion that the respondents sick leave policy is discriminatory.  

The respondent advised the hearing that following the email of 13th of August 2019 to the complainant they received a phone call from the complainant on the 20th of August again advising that he would not be returning to work on the 22nd of August.   The respondent advised the hearing that the complainant during this conversation advised that his injury was caused by the accident at work on the 6th of August and he stated that he could take as much time off as he wanted.

The complainant submitted an English translation of the Polish medical certificate on the 21st of August 2019.   The respondent again replied to him reiterating its position in respect of certification by an Irish based practitioner and advised the complainant that in the absence of same he was expected to return to work on 22nd of August 2019.

The respondent stated that the complainant had then told them that he had already changed his return flight and was not returning until the 6th of September 2019. The respondent requested the complainant to return to work on the 26th of August which he did not do. The respondent then requested the complainant to attend a meeting on the 30th of August and following which they would refer him for medical assessment to the company doctor. The complainant replied stating that he was unable to attend the meeting as he was receiving ongoing treatment.   The respondent advised the complainant that he was on unauthorised absence from work and that this could lead to disciplinary action against him, up to and including dismissal.  

A further letter issued from the respondent on the 2nd of September advising the complainant that the respondent would commence AWOL proceedings given that he was on unauthorised absence from work and had failed to attend a meeting when requested or to provide requested documentation.   The complainant had previously indicated in his translated medical certificate that he was certified as unfit to work until the 6th of September 2019.   The complainant failed to return to work on the 6th of September or to provide any medical certification in this regard.   A further letter issued from the respondent to the complainant on the 13th of September inviting the complainant to a disciplinary meeting on the 17th of September in respect of the complainants unauthorised absence.   The Complainant advised by return email on 16 September 2019 that he could not come to the meeting as he was continuing his treatment.   No medical certification was provided in support of this.   The respondent advised the hearing that the complainant during correspondence and phone calls had never claimed to be unable to travel or return to the jurisdiction to be assessed by an Irish based doctor or the company doctor.

The respondent advised the hearing that the complainant did not attend the disciplinary meeting on the 17th of September and a decision was made to dismiss him, for failure to follow clear management instructions regarding obtaining relevant documentation in support of his absence and failure to comply with company procedures in this regard. In addition, the respondent stated that the complainant had failed to attend scheduled meetings or to make himself available to attend such meetings.

The decision to dismiss was notified to the complainant by letter dated 20th of September 2019 and he was notified of the opportunity to appeal this decision.   The complainant appealed the decision by letter dated 25th of September and an appeal hearing took place on the 2nd of October 2019.    The complainant attended the appeal hearing and was accompanied by a witness.     The respondent advised the hearing that the complainant at the appeal hearing admitted that he was aware of the sick leave policy and the requirement to obtain a cert from an Irish based doctor but stated that he did not agree with the policy.     The complainant also acknowledged that he had received the respondents requests that he attend meetings and that he failed to comply with these requests.

The respondent advised the hearing that the complainant at his appeal hearing on 2nd of October presented a medical certificate dated 20th of September to 23rd of September from an Irish based doctor which states that he was fit to return to work on the 23rd of September. This cert indicates that the complainant was in Ireland on the 20th of September and had attended an Irish based doctor on that date but failed to provide the respondent with any evidence of this doctors visit until 2nd of October 2019.     This calls into question the reasonableness of the complainants actions.     The outcome of the appeal was to uphold the decision to dismiss.

The respondents case is that the complainant was in continuous breach of Company Policy as he had failed to obey instructions in respect of his breaking of company rules and policy and had disregarded the advices/warnings that had been given to him in the extensive correspondence from the respondent and he chose to remain in continuous breach of same by remaining on unauthorised absence from work. The complainant failed to return to work for a period in excess of 5 weeks after his scheduled return to work date.   The respondent submits that the complainant was afforded due process and fair procedures and under the circumstances the Respondent’s decision to dismiss him was justifiable and fair.

In considering this matter, I note that the medical certificate submitted by the complainant which did not comply with the respondents policy of being from a practitioner based in Ireland ended on the 6th of September 2019 and no further medical certification either from a doctor based in Poland or Ireland was submitted by the complainant after that date until he attended the appeal hearing on the 2nd of October and on that date presented a medical cert dated the 20th of September stating that he was fit to return to work on the 23rd of September.  

Notwithstanding the assertion that the medical certificate submitted to cover the period up to 6th of September 2019 did not comply with the respondents company policy, it appears that the respondent received no medical certificate whatsoever to cover the complainants period of absence from 6th of September to 2nd of October. This is despite the fact that the parties were engaging in ongoing correspondence during this period included in which was a notification from the respondent to the complainant that his attendance was required at a disciplinary hearing which was taking place on 17th of September 2019.

I also note that the complainant had previously indicated to the respondent that he was returning form Poland on the 6th of September having advised the respondent in August that he had changed his flight and would not be back to work on the 22nd of August 2019.  However, I note that the complainant did not present any evidence at the hearing to support an assertion that he had intended to return to work on the 22nd of August and had only changed his flight after attending a doctor who certified him as unfit for work.

I am also mindful of the evidence adduced in respect of a similar incident in June 2018 when the complainant had also sought to extend his holidays vis a vis sick cert issued by doctor based in Poland, at which time the respondent had previously advised him that the medical cert did not comply with its company policy.

It appears from the evidence adduced that the complainant disagreed with the respondents policy in respect of the requirement to produce a cert from an Irish based practitioner, but it seems clear that the complainant was nonetheless aware of this policy especially given that it was brought to his attention the previous year when he had also become sick while on holidays in Poland.   The complainant at the hearing argued that the respondents policy of requiring a sick cert to be issued by a GP based in Ireland was discriminatory. The respondent argued that the policy is not discriminatory and applies equally to all employees irrespective of their nationality and that an Irish employee who got sick on holidays abroad would still be required to present a certificate from an Irish based doctor.  The respondent also stated that a certificate from a Polish doctor practising in Ireland would be equally acceptable. No complaint has been lodged by the complainant in respect of the assertion that the respondents sick leave policy is discriminatory.  

Notwithstanding the above, even I were to accept the complainants assertion that he had complied with the sick leave policy by providing a medical certificate stating that he was unable to work up to the 6th of September 2019, (albeit non-compliant with the policy)   I note that the complainant remained absent from work after the 6th of September without providing any medical evidence in support of this absence and following which he failed to attend a disciplinary meeting on the 17th of September 2019 about which he had received notice.   In addition, I note that the complainant had previously stated that he would be returning from Poland on the 6th of September.

Furthermore, the respondent advised the hearing that the complainant at his appeal hearing on 2nd of October presented a medical certificate dated 20th of September to 23rd of September from an Irish based doctor which indicates that he was in Ireland on the 20th of September and had attended an Irish based doctor on that date but failed to provide the respondent with any evidence of this doctors visit until 2nd of October 2019.     This calls into question the reasonableness of the complainants actions.

The respondent in this case did engage with the complainant and did follow its own disciplinary procedure before making the decision to dismiss.   I note that the complainant was given advance notice of the disciplinary hearing and was given the opportunity to attend the hearing and defend himself. The complainant provided no medical evidence to suggest that he was unfit or unable to attend the disciplinary hearing of the 17th of September 2019 or no evidence to suggest that he was still out of the country on that date.

In fact, the complainant at the hearing contradicted himself by stating initially that he had remained in Poland to receive physio for his injury as it was much cheaper there, he had also advised the respondent on the 19th of September that he was still receiving treatment, but his medical certificate dated the 20th of September shows that he attended an Irish based doctor on the 20th of September.

In addition, I note that the complainant at the hearing did not present any evidence to support an assertion that he had intended to return to work on the 22nd of August and had only changed his flight after attending a doctor who certified his as unfit for work on that date.

I also note that the respondent submits that it had previously found itself in a similar situation with the complainant the previous year in June 2018 when the complainant had also sought to extend his holidays vis a vis a sick cert issued by a doctor in Poland.

In all of the circumstances of the facts of this case I deem that it is my function as the Adjudicator to decide whether the employer’s decision to dismiss the complainant falls within the band of reasonableness of a reasonable employer or not. In this regard, I note the UK Court of Appeal of British Leyland UK Limited v Swift [1981] IRLR 91, where, Lord Denning stated:

“The correct test is: was it reasonable for the employers to dismiss the complainant? If no reasonable employer would have dismissed her, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed her, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.

In her judgement in the Circuit Court case of Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Ms Justice Lindane referred to the British Leyland case and remarked as follows: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

I note that the complainant in this case was due back to work on the 22nd of August 2019 and notwithstanding the respondents policy of requiring a medical cert from a medical practitioner based in Ireland the respondent in this case was faced with an employee who remained absent from work without any medical certification whatsoever from 6th of September up to and including the date of his disciplinary hearing which took place on the 17th of September 2019.     I also note that the complainant refused to obey instructions issued by the respondent to attend meetings when requested to do so and that he failed to attend the disciplinary hearing or to provide any evidence in support of his claim that he could not attend that hearing.

Having given careful consideration to all of the circumstances of this case, I find that the decision to dismiss the complainant was within the range of reasonable responses of a reasonable employer and I am satisfied that the complainant in this case was not unfairly dismissed by the Respondent.

Having said that and while I am satisfied that the respondents decision to dismiss the complainant does fall with the band of reasonable responses given the conduct of the complainant, I am not however satisfied that that the complainants behaviour/conduct falls into the category of gross misconduct such as to deny him his entitlement to notice or payment in lieu of notice.

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category’.

The distinction between a dismissal for gross misconduct and a dismissal for conduct/misconduct which is found to be within the band of reasonable responses of a reasonable employer is necessary in the present circumstances where the complainant was dismissed without notice and has made a separate claim in that regard which is dealt with under CA-00031798-001.    

In accordance with my finding above that the decision to dismiss the complainant was within the band of reasonable responses of a reasonable employer, I am satisfied that the complainant in this case was not unfairly dismissed by the Respondent.   Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is not well founded.

I am satisfied that the complainant in this case was not unfairly dismissed by the Respondent.    Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031798-001

24/10/2019

The Complainant submits that

he was unfairly dismissed on 17th of September 2019 and he did not receive his minimum notice entitlements.

The Respondent submits that

The complainant was called to a disciplinary hearing on the 17th of September 2019 after he failed to follow management instructions by unilaterally extending his holidays without authorisation and ignoring company policy in relation to the submission of relevant medical certificates,

The complainant did not attend the disciplinary hearing and a decision was taken to dismiss him, the complainant appealed this decision and an appeal hearing was held on the 2nd of October 2019 but was unsuccessful in his appeal,

the Complainant was subjected to a summary dismissal on grounds of gross misconduct and he has no entitlement to notice in such circumstances.

I note that the Complainant’s contract of employment was terminated as a result of his failure to obey instructions and intentional breaking of company rules and policy in respect of his unauthorised absence from work.     This is covered in my decision in relation to CA-00031798-002 in which I concluded that the complainants dismissal was not unfair.

I note also that Sec 4 of the Minimum Notice & Terms of Employment Act, 1973 states, “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. Therefore, that the Complainant in this case had an entitlement to minimum notice based on that section unless it is precluded by Sec 8.   Section 8 of the Act states, “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.  

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category’.

The complainant in this case lodged a separate claim in respect of his dismissal (see decision in relation to CA-00031798-002) and in which I made a finding the complainants dismissal was not unfair and that the decision to dismiss falls within the band of reasonable responses of a reasonable employer.  

The distinction between a dismissal for gross misconduct and a dismissal for conduct/misconduct which is found to be within the band of reasonable responses of a reasonable employer is necessary in circumstances where the complainant was dismissed without notice.   The respondent submits that this was a summary dismissal for gross misconduct and so there is no entitlement to notice.   While I have found in CA-00031798-002 that the respondents decision to dismiss the complainant does fall with the band of reasonable responses given the conduct of the complainant, I am not however satisfied that that the complainants behaviour/conduct falls into the category of gross misconduct such as to deny him his entitlement to notice or payment in lieu of notice.

Accordingly, having regard to all of the circumstances of this case I find that the Complainant’s claim for Minimum Notice is well-founded.   Given that the complainant was employed by the respondent for 11 years I find that the complaint was entitled to six weeks gross pay in lieu of notice on the termination of his employment.  On that basis, I order the Respondent to pay the complainant the equivalent of six weeks’ pay in respect of notice.

I find that the Complainant’s claim for Minimum Notice is well-founded and I order the Respondent to pay the complainant the equivalent of six week’s pay in respect of notice.