Complainant

Respondent

Anonymised Parties

An Operative

An Employer

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-00025015-001

15/01/2019

The Complainant commenced employment with the Respondent on or around the 12th December 2005. Initially he was engaged to provide cover over the Christmas period, he was then re-employed on the 24th April 2016. Ultimately the Complainant became a permanent employee.The Complainant was a Postal Operative, and was involved in the delivery of post for all but the last 3 to 4 months of his employment with the Respondent.

Unfortunately, the Complainant endured a number of tragic events in his personal life, which lead to some mental health issues. Tragically, the Complainant’s father and two brothers died by suicide, while another brother, was killed in a tragic accident while working on O’Connell Street. In addition, the Complainant had to deal with two separate marriage break ups. Understandably, and predictably, the events of the Complainants personal life had a significant negative effect on his personal life.   The Respondent was fully aware of these issues and was kept informed of same at all times.

The Complainant also suffered from back pain, a fact which was made known to the Defendant, in addition, the Complainant had some difficulties with alcohol, and again this was made known to the Defendant. The Complaint refers to a selection of absentee records provided by the Defendant demonstrating that the Respondent was aware of said issues attached at Appendix 1.  

As a result of the Complainants difficulties, the Complainant was absent from work due to certified sickness for a significant amount of time. This was addressed with the Complainant on a number of occasions. The Respondent had indicated that the absenteeism would be dealt with by way of disciplinary procedure, however this did not occur.

The Complainant has attended and continues to attend a number of services to assist with his mental health. These include treatment in the XXX Centre, with regard to the Complainants alcohol difficulties, in 2012 and 2014. The Complainant also attends the YYYY Centre for counselling where he is treated. Furthermore, the Complainant has received confirmation from his Doctor, that he is suffering from a personality disorder, the doctor states:

‘above has been attending looking for help with his personality disorder which has been responsible for his actions in the last six months he has been attending a counsellor and is awaiting a psychiatric assessment’

In addition the Complainant has been attending PPP House, Suicide, Self-Harm and Bereavement Services from the 7th November 2018 to date, as well as AL, who assist with alcohol issues. See attached correspondence demonstrating attendance with the above services attached at Appendix The attached documents reveal that the Complainant was taking significant steps to deal with any issues he had, which were causing him difficulties. The Respondent was at all relevant time aware of this fact.

Despite being aware of the personal and medical difficulties which the Complainant was facing, and the steps he was taking to resolve those issues, the Respondent had indicted their intention to progress the Complainants absenteeism to the disciplinary stage on or around the 15th January 2018. This was never done however. It does not appear as though the Complainant was informed that the absenteeism disciplinary was not being pursed, as it appears as though only an internal memo to that effect was sent. Said letter and memo are attached at Appendix 3 of the 15th January 2018.

Unfortunately the Complainant was involved in an incident in The Pavilions, Malahide Rd, Swords, in which some items were taken by the Complainant from three stores. The Complainant was prosecuted in relation to this incident, and the matter was before Swords district Court subsequently. The Judge applied the probation act and directed that the Complainant pay €350 to charity, no formal conviction was applied. The probation act was applied given the Complainants mental health difficulties. The Respondent attended the court hearing, and was aware that the Judge accepted the medical evidence as submitted. See attached account of the court hearing complied by the Respondent’s security staff attached at Appendix 4

On or around the 21st December 2017 was suspended the complainant with pay pending the investigation of the matter.  

The Respondent indicated that the disciplinary process would then commence. The Complainant received a further letter dated the 15th January 2018 which enclosed a record of the meeting of the 21st December 2017. The Complainant was required to sign the record of the meeting and return it to the Respondent which he duly did. It should be noted however, that while the letter states that ‘These matters will be then be addressed with you through the Company disciplinary procedures where your dismissal will be a consideration’, the Respondent did not at any point provide the Complainant with a copy of the ‘company disciplinary procedures’, nor did they direct the Complainant to the location where said procedure could be found. Said letter and memo are also attached at Appendix 4.  

The Complainant received a further letter from Ms NS, dated the 13th February 2018, attached at Appendix 5. The letter outlines the allegations against the Complaint, and raises issues with regard to ‘trust and confidence’ in the Complainant following the impugned incident. There is no reference to absenteeism in the letter. The letter invites a written explanation for the matters at issue, and\or an opportunity to attend an oral hearing. Rather extraordinarily, it appears from the letter that the decision maker in terms of the disciplinary sanction would not have any involvement in the process and would not attend the disciplinary hearing. In that regard the letter states:

‘In relation to the Company’s Disciplinary process we would like to point out that neither I nor Ms SJ will have responsibility for making a decision in relation to the matters at issue. Our role is it initiate, when warranted, disciplinary proceedings and to process such proceedings in accordance with the Company Policy’s, following which one or both of us will prepare a Submission to a Level 3 HR Manager who has responsibility to make a disciplinary sanction, if any. You will then be provided with a right of Appeal should you not agree with the decision of the Level 3 HR manager, as provided for in the Company’s Policy’

It is evident from the above, and from the subsequent conduct of the procedure that it was never the intention of the Respondent to have the decision maker attend the disciplinary hearing. This is a most bizarre and extraordinary situation, and is akin to running a court case in the absence of the Judge. It is submitted that this demonstrates a fundamental flaw in the Respondents disciplinary procedure. Furthermore it should be noted that despite repeated reference to ‘Company Policy’, said policy was not provided to the Complainant.

The Complainant sought an oral hearing regard the matter, which was scheduled for the 8th March 2018. The Complainant attended with his union representative Mr HD. Present at the hearing on behalf of the Respondent were Ms. NS and Ms SJ, both of whom are Employee Relations Executives. A copy of the minutes of this meeting are attached at Appendix 6.

As is evident form the minutes, a request was made for an updated ‘welfare report’ from Mr NS. Mr. NS is described as an Occupational Health Specialist. It is unclear what qualifications he holds, and in particular whether or not he is a medical practitioner. It appears that he works in Occupation Health and Support which is part of the Respondent and not an independent Occupational Health Organisation such as Medmark. It is evident that the Complainant was never sent for an independent medical assessment during the period from October 2017 to the date of his dismissal.

Mr NS sent a one page response to the request for a ‘welfare report’. It is evident from this report that Mr NS did not meet with the Complainant in advance of drafting the report. Under the heading ‘Current Position’ Mr NS states with regard to the Complainants attendance ay Stanhope, that ‘I have no evidence that The Complainant underwent treatment as outlined. We have had a number of telephone conversations since that time’. It is submitted that is it incorrect to state the Mr NS had no evidence that the Complainant had attended Stanhope, as by letter date the 20th March 2014, Ms. HH of the Stanhope Centre wrote to Mr NS confirming treatment he had there from the 25th February 2014 to the 7th March 2014. Moreover, it is evident from the report that no request was made of the Complaint to provide further medical evidence with regard to his condition, nor was there any attempt to contact the Complainants treating doctors and or practitioners for reports on his condition or details of the treatment received.

Some clarification in relating to the report was sought by Ms SJ with regard to the level of contract the Complainant had with Mr NS, and what assistance Mr NS had provided with regard to seeking treatment in St Patricks Hospital. Mr NS’s response simply confirms that the most recent contact was by phone on the 8th March 2018, before the referral for the purposes of the investigation, as well as confirming that the Complainant was informed of the Meridian fund. This confirms that there was no contact with the Complainant, either face to face or by telephone for the purposes of this ‘welfare report’. The report of Mr NS is therefore inaccurate and deficient. The report, referral, emailed correspondence between SJ and Mr NS and the letter from Stanhope are attached at Appendix 7.

Ms NS then compiled an internal memorandum with appendices in relation to the oral hearing, which was forwarded to Ms MB who, despite having no involvement in the matter to date, and not having attended the disciplinary hearing, was tasked with imposing the sanction with regard to the matter. Said memo is attached at Appendix 8, the appendices to the memo are not attached as the complete document was not provided by the Respondent despite a data access request being made on behalf of the Complainant. Ms MB in deciding the sanction to impose, was in effect relying on second hand information to make her decision. Ultimately the decision was recorded in an internal Memorandum from Ms MB to Ms NS. The memo states:

‘While I note the underlying matters to which The Complainant attributes his actions, I do not believe that he had provided sufficient evidence to support his view that those matters were principally responsible for him engaging in the theft of goods from the stores concerned”

This is an extraordinary statement for an individual who was not present at the hearing to make. It is simply not possible for Ms MB to accurately conclude as she did in circumstances where she did not attend the oral hearing. Moreover, despite being aware of the Complainants difficulties, the Respondent did not at any time during the process seek to have the Complainant examined by an independent and suitably qualified medical professional, nor did they seek comment from the Complainants treating doctor and or mental health practitioner.

Ms MB explicitly states that one of the reasons for the Complainants dismissal was that ‘he had declined to offer any reason for his other court appearance’. This is an entirely invalid reason to dismiss the Complainant, and demonstrates further the flawed reasoning and process employed by the Respondent.

The Complainant was informed of the reason for his dismissal be letter dated the 24th April 2018, also attached at appendix 8, again the letter points out that the ‘the file was passed to me for consideration’. The letter also states as one of the reasons for the dismissal to be as follows:

‘In addition the Company is aware that you were due to attend a further Court appearance in Tallaght District court on the 8th January 2018, apparently on an unrelated matter, but you have declined to offer any reason for that appearance’

Again, the Respondent is relying on an unrelated court appearance as a reason to dismiss the Complainant. It is submitted that the Respondent cannot impose a sanction based on a matter of which it is not aware. The court appearance in January 2018 was unrelated to the current disciplinary process. If the Respondent wished to discipline the Complainant for failing to disclose the reason for the January 2018 court Appearance, it was required to explicitly state that failure to disclose this information could result in disciplinary sanction, up to and including dismissal. This was not done at any time by the Respondent. This is a further reason why the process conducted by the Respondent was fundamentally flawed, and why the sanction arising therefrom is unlawful, and cannot stand. The Complaint was offered a right of appeal, which he exercised.

Appeal

The Complainant exercised his right of appeal. An appeal hearing was scheduled for the 15th May 2018. Present at the appeal on behalf of the Complainant were the Complainant, Mr HD and Mr ED, of the CWU. On behalf of the Respondent, Mr MG, Head of Employee Relations and Ms ND, Employee Relations Executive were present. Mr MG was the decision maker with regard to the appeal. A record of the hearing was produced by the Respondent and is attached at Appendix 9.

A decision was not forthcoming with regard to the appeal until the 26th September 2018, in excess of four months after the appeal hearing. In the interim, the Complainant remained in employment. There has been no explanation for this delay in issuing a decision with regard to the appeal.

The decision with regard to the appeal was that as an alternative to dismissal, the Complainant be demoted to the role of cleaner. The outcome letter states that the previous decision to dismiss was correct, it is submitted however that the previous decision was fundamentally flawed for the reasons outlined above, the decision therefore cannot be correct, as it was not based on accurate and complete information. While it is accepted that such behaviour could in normal circumstances attract the sanction of dismissal, the current circumstances were quite unusual are were not adequately explored by the Respondent, in that at no point did they seek an adequate independent medical assessment of the Complainant, either at first instance or at appeal stage. As the Complainant was not provided with a copy of the disciplinary procedure, it was not possible to establish if the Respondent’s own policies permitted the course of action taken in the circumstances.

From in or around the 8th October 2018 the Complainant was demoted to the position of cleaner. This was outlined in the letter to the Complainant dated the 26th September 2018, attached at Appendix 9, which states:

   ‘I will review your performance in this role on the 8th January 2019 and subject to confirmation from corporate HR that your conduct and       performance has been exemplary I will confirm that the decision to            dismiss you has been revoked and replaced by a demotion    incorporating a Final Warning of Dismissal. This will remain on your          file for a period of two years (from a current date

The Complainant was distressed at being demoted to cleaner on what was effectively a trial basis. This was subject to review on the 8th January 2019. The Complainant was required to display exemplary ‘conduct and performance’ in order to avoid dismissal. He attended a meeting on the 5th October 2018 with Mr EP, HR Manager, and Ms ND with regard to his cleaning role. The Complainants union representatives were also present. Minutes of meeting are attached at appendix 9. During the meeting it was again stated the Complainant asked if it would be possible to return to Postal Operative grade at some point in the future. The Complainant was informed that this would not be considered. In effect, and chance of promotion was being denied to the Complainant from the outset.

The Complainant was upset at being demoted, and was concerned for his physical wellbeing as he had suffered back pain in the past. The physical nature of the new position caused concern for the Complainant given his previous problems with his back.

Due to the mental health difficulties outlined above the Complainant was absent from work commencing on the 5th November 2018. He attended with Mr NS, the Occupational Support Specialist on the 22nd November 2018. Mr NS sent a memo to Mr EP regarding that meeting on the 27th November 2018. The content of this memo is extraordinary, it states as follows:

‘During our recent meeting The Complainant said he is attending a HSE, Mental Health Service in the Dublin 17 and he was also scheduled to have a meeting with PPP House yesterday. He added he is to undergo a mental health assessment with HSE in Dublin 17 on the 13th December. The Complainant did not offer any evidence of these appointments during our meeting. He says he feels deeply demeaned to have been demoted to cleaner. He said he worked with mail all through his previous career with the Respondent and he expressed a desire to relocate to the post room in the GPO. He gave no indication of a likely resumption date. The Complainant attributes all of the issues which have resulted in his recent difficulties as being the result of his mental condition. Based on our meeting I cannot be confident of his giving regular and effective service as a Cleaner with the Respondent.

The above demonstrates an extremely concerning attitude towards the Complainant. Mr NS records the fact that the Complainant is to be medically assessed on the 13th December 2018, he also lists a number of services which the Complainant is attending. It does not appear as if any request was made of the Complainant to provide confirmation of attendance at these appointment, although confirmation had been provided of same in the past, see Appendix 1 above. Furthermore, as the Complainant was to be medically assessed on the 13th December 2018, he would not yet know when he was likely to be in a position to return to work. In any event it is for the Complainants treating doctors to comment on the date the Complainant is likely return to work date and not the Complainant himself. No request was made of the Complainant to provide correspondence from his treating doctor with regard to his likely return to work date, nor was the Complainant sent for independent medical assessment to ascertain when he would be in a position to return to work.

The report of Mr NS concludes in a manner which is in effect beyond his remit, where he states that ‘I cannot be confident of his giving regular and effective service as a Cleaner with …..’. This statement is not based on any verified medical evidence whatsoever, indeed Mr NS was aware that the Complainant was due to be medically assessed a on the 13th December, at which point a far more accurate assessment could have been made. He nevertheless made the above deeply flawed assessment. Therefore the comment with regard to regular service is flawed. Moreover, Mr NS has never observed the Complainants performance as a cleaner and cannot therefore validly comment or the effectiveness of otherwise of the cleaning services provided by the Complainant. Furthermore, Mr NS is not independent of the Respondent.

The Complainant, while absent on certified sick leave, received a letter from Mr EP dated the 3rd December 2018. This letter and the report of Mr NS referred to above, and medical certification regarding the absence are attached at Appendix 10. This letter informs the Complainant that a further disciplinary procedure is being commenced against him based on his certified absence. The Complainant received no further communication regarding the disciplinary procedure which said letter purported to invoke.

The Complainant, while still absent on sick leave, received a letter dated the 8th January 2019 see attached at Appendix 11. This letter informed the Complainant that was dismissed from his employment. The reason for the dismissal, as set out in the letter, is the referral of the Complainants absenteeism to the disciplinary process. Again, this is a most bizarre decision, which is devoid of any element of procedural fairness and natural justice. The decision to dismiss the Complainant was as a result of a referral to the disciplinary procedure for absenteeism, in circumstances where this process had not concluded and where there was no finding pursuant to that disciplinary procedure. Furthermore, the Complainant had no opportunity to take part in the review process, and was denied the opportunity to make representations on his behalf or indeed to be presented with any matters of concern which the Respondent may have had.

It is noteworthy that there is no reference whatsoever in the dismissal letter of the 8th January 2019 to any issue with the Complainants work performance. It does not state that the Complainants ‘conduct and performance’ was not exemplary, in fact the Complainants conduct and performance is not mentioned in the letter. It is also noteworthy that Mr. MG quotes word for word from the memo of Mr NS where he states ‘I have no confidence that you will be able to give regular and effective service in …..’. The Complainant was dismissed due to absenteeism in the absence of the procedures the Respondent has in place for dealing with such matters. The Complainant was therefore effectively dismissed without recourse to any disciplinary procedure whatsoever.

The dismissal of the Complainant in the circumstances was both substantively and procedurally unfair, was purported to be based on his illness\disability and was in breach contract, natural and constitutional justice and fair procedures.

UNFAIR DISMISSAL

The dismissal of the Complainant was conducted as set out above. It is submitted that the dismissal of the Complainant was both substantively and procedurally unfair.

Section 6(1) of The Unfair Dismissals Act 1977 states as follows:

Subject to the provision 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 was substantial grounds justifying the dismissal

The burden of establishing the dismissal was fair in such matters rests on the Respondent. It is submitted that no valid grounds justifying the dismissal of the Complainant arose in the current circumstances. The Complainant was informed that his absenteeism was referred to the disciplinary procedure, however that procedure did not conclude prior to the Complainants dismissal. The decision to dismiss the Complainant was entirely unfair. Having considered the test set out in Hennessy v. Read & Write Shop LTD UD 192/1978, namely that:

   ‘In deciding whether or not the dismissal of the claimant was    unfair we apply a test of reasonableness to:

1.       The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2.       The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed’

It is submitted that the Respondent acted entirely unreasonably in carrying out the enquiry prior to the decision to dismiss the Complainant given the knowledge which the Respondent had with regard to the Complainants condition, and furthermore, the conclusion arrived at by the Respondent, namely to dismiss the Complainant while the disciplinary procedure was ongoing was entirely unreasonable and is unsustainable in all the circumstances. The above case is attached at Appendix 12.

In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, Flood J stated, with regard to unfair dismissal that there were ‘certain premises which must be established to support the decision to terminate employment for misconduct’, he then listed these as follows:

1.       The complaint must be a bona fide complaint unrelated to any other agenda of the complainant

2.       Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.       The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment

4.       The decision of the deciding authority should be based on the balance of probabilities following from the factual evidence and in light of the explanation offered.

5.       The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity of the effect of dismissal on the employee

Flood J continued to state ‘put very simply, principles of natural justice must be unequivocally applied’. A copy if this case is attached at Appendix 13. The Respondent was not complied with either of the tests set out above in its dismissal of the Complainant. It has failed to meet even the most basic requirements of procedural fairness as required by the tests set out above. In particular it is submitted that points 1, 3, 4 and 5 above was not complied adhered to by the Respondent.

In Kilsaran Concrete v Vet UDD 11/2016 the Labour Court held that ‘certain fundamental requirements’ relating to fair procedures must be adhered to, the Labour Court stated that these fundamental requirements included requirements:

1.       To make the employee who is subject of the investigation aware of all allegations against him or her at the outset of the process;

2.       That an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

3.       In the event that an allegation against is upheld, that any disciplinary sanction imposed is proportionate to the complaint that has been sustained

In that case, a copy of which is attracted at Appendix 14 the dismissal was found to be unfair as the investigation dealt with allegations which were not formally put in writing to the Complainant at the outset or during the process. The Respondent in that case also digressed from their own procedures during the internal appeal procedure. In the current circumstances the Respondent did not provide copy of the procedure invoked to the Complainant, not did they put all allegations to the Complainant in writing, namely, that failing to disclose the purpose of the January 2018 court appearance would be considered as a disciplinary matter. Furthermore, the decision maker did not attend the disciplinary hearing at first instance and could not therefore adequately adjudicate on the matters at issue. Moreover, the Respondent had commenced a disciplinary procedure for absenteeism, this was not concluded, despite this, the commencement of the procedure prompted the dismissal of the Complainant on the 8th January 2019 without any right of reply. Dismissal on the basis of the commencement of a disciplinary process is fundamentally unfair and disproportionate. The Complainant was not afford a right of reply in relation to the ‘review’ carried out in the 8th January 2019. The Respondent has therefore failed spectacularly in its duty to conduct the investigation\disciplinary procedures in accordance with the tests set out above and in accordance with the code of practice as set put below.  

The dismissal letter of the 8th January 2019, and the letter informing the Complainant of the commencement of the disciplinary procedure with regard to absenteeism both implicitly refer to and relate to the Complainants competence and or capability to carry out his role given his mental health difficulties. Without prejudice to the requirement to have in place adequate procedures, and to apply those procedures correctly. In Bolger v Showerings (Ireland) [1990] E.L.R 184 Lander J held as follows:

‘In this case it was ill-health of the Plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

(1)          It was ill-health which was the reasons for the dismissal

(2)          That this was the substantial reason

(3)          That the employee received fair notice that the question of dismissal for incapacity was being considered; and

(4)          That the employee was afforded the opportunity of being heard

In the current circumstances it is submitted that the reason for the dismissal was not ill-health, but the dismissal was in effect masked in ill health in order to dismiss the Complainant. Furthermore, the Complainant was not afforded the opportunity of being heard. A copy of this case             is attached at Appendix 15. It is further submitted that the Complainant failed to reasonably accommodate the Complainant with regard to his illness\disability.

Where competence is at issue, there is a requirement on the Respondent to make the employee aware of the area in which they are not doing the job adequately and to be afforded an opportunity to improve. See O’Brien v Professional Contract Cleaners   UD 184/1990 [1991] E.L.R 143, attached at Appendix 16. The Complainant was not informed of any issues with regard to his work performance.

The Respondent is required to have in place adequate procedures for dealing with incidents in the workplace pursuant to SI 146/2000 The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, a copy of which is attached at Appendix 17. This statutory instrument, states, inter alia, the following:

1.       This Code of Practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. While the Code outlines the principles of fair procedures for employers and employees generally, it is of particular relevance to situations of individual representation.

2.       While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

It further states:

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•   That employee grievances are fairly examined and processed;

•   That details of any allegations or complaints are put to the employee concerned;

•   That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances

In the present circumstances, the Complainant was not made aware of all the allegations, either in writing or otherwise, indeed the dismissal letter itself fails to specify the exact conduct which gave rise to the Complaints dismissal. There was no notification of a hearing with regard to the review meeting of the 8th January 2019, nor did any hearing take place, the Complainant was simply summarily dismissed on the basis of purported recommendation in an inadequate welfare report. It follows therefore that the Complainant did not enjoy the benefit of Representation as no hearing took place with regard to the review on the 8th January 2019. The Complainant was not afforded any opportunity to respond to the allegations leading to his dismissal, in fact he was not even made aware of the exact nature of all the allegations. He was not made aware that failing to disclose the purpose of the 8th January court date could lead to or contribute to his dismissal.

The appeal letter of the 26th September displays a prejudicial attitude towards the Complainant in seeking to impose a probationary like condition to the complaints continued employment while stating that there would be an excessively long final written warning in place, that being for a period of two years.  

Furthermore, there was an inordinate delay in conducting the disciplinary procedure. The matter first arose in December 2017, and the appeal outcome was not known until the 26th September 2018.  

The process invoked by the Respondent in dismissing the Complainant was, in all the circumstances, fundamentally flawed, the disciplinary process was entirely absent with regard to absenteeism. The Complainant had no opportunity at all to challenge whatever evidence the Respondent claimed to have against him with regard to the absenteeism or the ‘review’ of the 8th January 2019. The conduct of the Respondent in dismissing the Complainant, was entirely unreasonable and manifestly unfair. The Adjudication Officer is requested to take account of section 6(7) of the unfair Dismissals Act, 1977 as amended in determining this complaint. The Complainant relies on the Liz Allen case with regard to any perceived failure to mitigate his losses.

The Complainant was a Postal Operative and Services Officer with the Respondent. His service commenced on 13 December 2005. He was dismissed by letter dated 8 January 2019 with effect from 11 January 2019.

The Complainant’s complaint form:

A striking feature of this complaint is that it refers to dismissal for “absence while out sick” as a reason for the dismissal but makes no reference to the clear and obvious context for the dismissal and the express reasons given for the dismissal. The complaint makes no mention of the following facts:

a.              that the Complainant had exhausted the Respondent’s Attendance Support Management      Process (ASMP) (for absence levels which gave rise to concern);

b.              that having exhausted the ASMP and having moved on to the disciplinary process which followed that process, that another disciplinary issue overtook it;

c.              that the Complainant was then dismissed arising from the fact that he appeared in the District Court for stealing €2000 worth of items (on 4 separate occasions) in the Respondent’s uniform;

d.              that, whilst the Complainant was dismissed for loss of trust based on the theft issues, this sanction was commuted on appeal to demotion subject to review;

The glaring omission from the complaint form (and the accompanying letter) is that the Complainant was given a chance, subject to review, to prove that he could attend regularly in a demoted role. He accepted this sanction with the benefit of very experienced senior Union representation. The Complainant was then ultimately dismissed based on the fact that he did not successfully complete the review opportunity offered to him as part of the commuted dismissal to a demoted role. The dismissal was based on loss of confidence that the Complainant would give regular and effective service. Having been given ample opportunity to do so, the Complaint failed to indicate a timeframe within which any medical difficulties he may have had might resolve. It was not for the Respondent to intervene or forbear any further. There was no request to do so.

Grounds for dismissal

The reasons for dismissal in this case are set out in the letter of Mr MG to the Complainant dated 8 January 2019 (Appendix 1). This letter was based on a referral by HR Manager, Mr EP, to Employee Relations dated 3 December 2018 which was also the subject of a letter to the Complainant himself setting out the obvious issues and failures at that time (Appendix 2(a) and 2(b)). It will be seen from these documents that the Complainant had already been the subject of a disciplinary procedure resulting from poor attendance in January 2018. This was placed on hold due to a disciplinary issue of a different character resulting in his re-assignment as a Service Officer. He attended a meeting with Mr EP on 5 October 2018 to set out the ground rules for this re-assigned role which he took up on 10 October 2018. The minutes of this meeting make clear that the Complainant was given every chance and opportunity and agreed to the commuted sanction and to the fact that this was very much ‘under review’ (Appendix 3 – record of meeting with the complainant 5 October 2018). The opportunity to take up the Services Officer role originates with the appeal decision of Mr. MG set out in a letter to the Complainant dated 26 September 2018 (Appendix 4).

Absence preceding dismissal on 11 January 2019

The Complainant had been absent, prior to his dismissal, since 5 November 2018. He had been seen by the Occupational Support Service (OSS) on 22 November 2018. Unfortunately, despite having been given the opportunity to do so, the Complainant did not provide the Respondent with any indication of when he would be likely to resume. It is not for the Respondent to probe further or press the matter. These are matters that cannot be drawn out of an employee. No employer can be expected to left guessing. And this, in the surrounding context, was a particular difficulty and one which the Respondent could not reasonably be expected to overlook or accommodate any further. It must be remembered that his attendance was under disciplinary scrutiny prior to his dismissal for other reasons and prior to that dismissal being commuted to demotion to Service Officer for a period under review.

The OSS meeting with the Complainant of 22 November 2018 is not to be taken in isolation. Mr. NS had had several dealings with the Complainant and refers to this in a memo to Mr EP dated 27 November 2018 (Appendix 5). A variety of indications were given by the Complainant at that meeting regarding stabilising treatments and engagements but nothing was provided to substantiate these. Mr NS’s assessment was that he could not be confident the Complainant would (ever) give regular and effective service (not that he didn’t wish it or wished other than that the Complainant would return and give regular service). It was a reasonable assessment that was subject to a review, also reasonable, undertaken by Mr MG in the content of the process in place for review of which the Complainant was made perfectly aware.

To describe this dismissal as discriminatory is to retrofit what occurred and ignore the patience and forbearance shown by the Respondent.   It ignores also the very plain fact that any issue (insofar as it was ever made clear by the Complainant) concerning his health was obviously not held against the Complainant when he was given a chance to prove himself in the demoted role.

The Complainant is placed on full proof of medical issues

The Respondent will present its case to the Adjudication Officer, as it must, that it had substantial grounds on which to dismiss the Complainant. If the Complainant wishes to contest his dismissal on the basis of medical issues, the Respondent is entitled to know the Complainant’s case and to be given any reports on which the Complainant intends to rely. The Respondent reserves the right to make further and more detailed submissions than those contained in this statement and it may even be necessary to seek to adjourn these proceedings if it is taken short by the presentation of medical reports it has not previously had an opportunity to consider. The Complainant is placed on full proof of any medical evidence he seeks to rely on and, whilst the Respondent welcomes an efficient and practical disposal of the claim, reliance on medical reports or medical opinion requires the presence of the author to clarify and be questioned.

The original dismissal (later commuted to demotion to Services Officer)

On 21 December 2017 the Complainant met with Mr. NC of the Respondent as a result of various court appearances for criminal matters. This resulted in the Complainant’s suspension (Appendix 6(a) - letter to Complainant and 6(b) - notes of meeting 21 Dec 2017).

On 15 January 2018 Mr. NC escalated the matter of the Complainant’s attendance at Swords District Court on 29 November 2017 to a disciplinary matter by internal memorandum to Mr YD of Employee Relations (Appendix 7). Mr NC also escalated the on-going matter of the Complainant’s attendance issues (separate to the above) by letter of the same date (Appendix 8). This is because he had exhausted the Attendance Support Management Process (ASMP).

The disciplinary process was commenced by way of a letter from Ms NS to the Complainant on 13 February 2018 setting out the Respondent’s concerns and giving the Complainant an opportunity to respond (Appendix 9). The disciplinary process of the Respondent which is a Union-agreed process consisted of a meeting on 8 March 2018 (Appendix 10 – notes of meeting) followed by the setting out of the case to answer by Ms NS on 18 April 2018 forwarded to Ms MB, the decision maker (Appendix 11). Notably this document included a welfare report secured from OSS (Appendix 12 – memo dated 13 March 2018 seeking welfare report & Appendix 13 – welfare report dated 20 March 2018). It can be seen from this that the Complainant was not someone who had followed up on – or demonstrated follow-up – on the assistance and sources of structure that were available to him.

Ms MB corresponded with the Complainant’s Union representative on 10 April 2018 confirming the OSS involvement in the process and the assistance that was provided (Appendix 14). The Complainant was dismissed for the reasons set out by Ms MB in a letter dated 24 April 2018 (Appendix 15). The Complainant appealed his dismissal and the appeal was heard by Mark Graham on 15 May 2018 in the course of which medical issues were referenced but ultimately the Complainant said he didn’t know why he committed the thefts and said he had been dealing with his issues by drinking (Appendix 16 – notes of appealing hearing 15 May 2018).

Law

This was a dismissal for failure to satisfy the conditions of a commuted dismissal sanction (demotion) subject to a review. There is a context of sick absence but primarily there is a context in which where the Respondent was left frustrated in its efforts to engage with the Complainant and commute a sanction of dismissal to service in a demoted role that was ‘subject to review’. This makes it a difficult case to categorise or with which to find any precedential comparison.

It is submitted that making available the provision of Occupational Support Services (OSS) is sufficient compliance of any standard that the law requires. In fact, it goes above and beyond any such requirements. The Respondent does its best (more than is contractually required) to address fitness to work concerns through its OSS. It is not required to do more than make reasonable adjustments in contemplation under s.16 of the Employment Equality Acts 1998 to 2015 as interpreted by the Court of Appeal in the Nano-Nagle case.   Reasonable adjustments would only have been required, if sought and if they arose in circumstances where the Complainant was willing (as well as capable) to avail of them. It does not arise spontaneously and cannot be forced upon a worker. Here the difficulty was a want of engagement and transparency on the part of the Complainant, not a want of forbearance and accommodation on the part of the Respondent.

It is trite law that the decision to dismiss must come within a range of reasonable responses. It is submitted that the decision to dismiss in this case comes not only within that range but demonstrates a level of patience, fairness and facilitation that is not required of an employer.

In Governor of Bank of Ireland v Reilly [2015] ELR 229 the Court said as follows (at para. 38 et seq.):

“[T]he onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland Plc v Lindsay UK Employment Appeal Tribunal Determination UKEAT/0506/09/DM, August 19, 2010.

I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v Purcell [2012] E.L.R. 189, where she commented (at p.4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] I.R.L.R. 91 and the following statement of Lord Denning MR at p. 93:

‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, 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.’

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.”

An employer is entitled to come to a reasonable conclusion that an employee’s unacceptable absences constitute reasonable grounds for dismissal. Ultimately this will constitute an incapacity to fulfil the contract in a reasonable fashion.

In BS v Dundee City Council [2014] IRLR 131 on appeal from an UK EAT decision a Scottish Court (inner sessions) ruled that three themes emerge from the caselaw:

a.            Firstly the employer must ask the question how long can it wait for the worker to recover.

b.            Secondly the worker’s own views are relevant and can indicate both positively and negatively towards dismissal. If the worker says he does not know when he will be fit again, this operates against him.

c.            Lastly the employer should allow the Complainant to present the medical position and can accept the medical advice presented. At paragraph 27 of the report the Court said, “[The law] does not require the employer to pursue detailed medical examination.”(emphasis added)

It is submitted that this last point is no more than common sense, as otherwise employer’s will be required to be both a primary carer and a medical facility. Contractually and statutorily it is neither. The respondent in the Dundee case was a County Council with over 8000 employees and it was not required to undertake a detailed medical examination.

An ulterior motive does not arise. This is clear from the following two facts:

a.               Any issue (insofar as it was ever made clear) concerning the Complainant’s health was certainly not held against him. On the contrary, he was given a chance to prove himself in the demoted role notwithstanding these issues.

b.               Any issue concerning his conduct was not held against him as he was given a second chance to prove himself when his dismissal was commuted to demotion.

Given that the complainant in this case was 1) given fair notice his dismissal was being considered, 2) given every opportunity to be heard on the matter and 3) the reasons for the dismissal were made clear and were substantiated (no ulterior motive) this dismissal was fair.

The complainant states that the respondent’s decision to dismiss him from his employment was procedurally flawed and as a result was unfair. The respondent states that they demonstrated a level of tolerance over and above what would be expected from a reasonable employer and that the decision to dismiss was within the band of reasonableness.  

6.(1) 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.

(4) 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,

In Governor of Bank of Ireland v Reilly [2015] ELR 229 the Court said as follows (at para. 38 et seq.):

“[T]he onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

Judge Linnane in Allied Irish Banks v Purcell [2012] E.L.R. 189, where she commented (at p.4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] I.R.L.R. 91 and the following statement of Lord Denning MR at p. 93:

‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, 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 assessing this matter, it is not for me to ask whether I would have dismissed the complainant in the circumstances or substitute my view for the employer's view but to ask was it reasonably open to the respondent to make the decision it. In doing so I must assess the conduct of both parties at the material time.

The respondent has submitted evidence in relation to the complainant’s high level of absenteeism. They argue that an employer is entitled to come to a reasonable conclusion that an employee’s unacceptable absences constitute reasonable grounds for dismissal. The complainant accepts the evidence but states that due to a multitude of personal issues the level of absenteeism is justified.

In BS v Dundee City Council [2014] IRLR 131 on appeal from an UK EAT decision a Scottish Court (inner sessions) ruled that three themes emerge from the caselaw:

a.            Firstly the employer must ask the question how long can it wait for the worker to recover.

b.            Secondly the worker’s own views are relevant and can indicate both positively and negatively towards dismissal. If the worker says he does not know when he will be fit again, this operates against him.

c.            Lastly the employer should allow the Complainant to present the medical position and can accept the medical advice presented.

I agree with the respondent’s submission that an employer is entitled to a reasonable conclusion that an employee’s unacceptable absences constitute grounds for dismissal. In circumstances where the complainant had exhausted the Attendance Support Management Process, was not forthcoming with information explaining his reasons for being absent and in light of the fact that the respondent was left in the dark in relation to a proposed or even potential return date, it was reasonable for them to come to the decision they did.

I find that that the respondent was more than fair in the way they dealt with the complainant. Every opportunity was given to the complainant to address his issues and he was given a second chance to prove himself, albeit in a demoted role. The decision to demote him was fair, proportionate and reasonable and when he failed to avail of the opportunity given to him, the decision to dismiss him was not only reasonable but was inevitable. I find that the two processes which ran in tantum for period of time were fair, thorough and objective and at no point was the complainant disadvantaged or prejudiced.    I can find no procedural flaw that could render the decision to dismiss unfair.

Having carefully considered the evidence adduced together with the documentation submitted I find that the decision to dismiss the complainant was fair.

The complaint fails.

The complaint fails.