Complainant

Respondent

Anonymised Parties

A Postal Operative

A Postal Services Company

Representatives

Rita Kilroy BL instructed by Kevin M Bourke, Solicitors

Cathal McGreal BL

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-00018123-001

23/03/2018

The Complainant commenced employment with the Respondent, a postal delivery service, on 23 February 2005, in the role of a Postal Operative.

On 12 February 2014, in the course of carrying out his duties, the Respondent’s vehicle was involved in a serious accident. The Complainant received serious injuries in the accident, which resulted in extended absence from work.

On 30 July 2015, the Respondent’s Occupational Health Service assessed the Complainant as being fit to return to work on sedentary duties only. On 19 January 2017, the Respondent’s Chief Medical Officer (CMO) certified the Complainant as fit to return to work to normal duties.

On 22 March 2017, the Respondent requested the Complainant to return to work on 27 March 2017. The Complainant did not return to work as requested, on the basis that the CMO had not considered certain medical evidence when certifying him as fit to return to work the previous January. Having reviewed the additional information referred to, in this regard, by the Complainant, the CMO advised, on 10 May 2017, that there was nothing new in this information and he reconfirmed his earlier certification that the Complainant was fit to return to work.

Based on his continued absence from work, the Complainant was removed from the Respondent’s Sick Pay Scheme on 15 June 2017 and the matter was referred to Group Human Resources management thereafter.

On 17 August 2017, the Complainant received a letter from the Respondent setting out the disciplinary position and offering oral hearings, should the Complainant wish to avail of same. By way of letter dated 26th of September 2017, the Complainant was informed that he had been dismissed from his employment with the Respondent. By way of letter dated 9 November 2017, the Complainant’s legal representative submitted a written appeal against the dismissal decision. On 11 January 2018, the Complainant was advised that his appeal had been unsuccessful and his dismissal was confirmed as being 19 January 2018.

On 23 March 2018, the Complainant submitted a complaint under the Unfair Dismissal of Act, 1977, to the Workplace Relations Commission. That complaint is the subject of this adjudication, for the purposes of which oral hearings took place on 9 April 2019, 16 May 2019 and 15 November 2019 respectively.

In his complaint to the WRC, the Complainant submitted that he was involved in an accident on 12 February 2014 which left him severely injured. The Complainant submitted that he brought High Court personal injuries proceedings against his employer and a named third party.

According to the Complainant’s submission, he has not been medically fit to return to his previous employment since the accident in February 2014. He further submitted that, as the matter is relatively complex, it is best explained by reference to inter party correspondence, which he would furnish at the oral hearing.

However, the Complainant submitted, in summary, that he believes the reasons given for his dismissal are erroneous and unfair. According to the Complainant, it appears that he was dismissed because he was considered not to have engaged with the disciplinary process because he failed to provide any response in relation to the Respondent’s concerns regarding his driving on 12 February 2014. According to the Complainant submission, it was suggested in the appeal’s findings that he was the “primary cause of the incident and that he failed to return to work in circumstances where he was assessed as medically fit to do so.

The Complainant contends that the disciplinary process was inappropriate and unfair. He further submitted that the suggestion that he did not engage with the Respondent is incorrect in light of the interaction that took place between him and his employer. The Complainant also denied the contention that he did not respond to the Respondent’s concerns in relation to his driving on the date of the incident in question. According to the Complainant, he believed the incident on 12 February 2014 occurred as a result of the negligence and breach of duty, including statutory duty and/or nuisance in respect of the Respondent and/or a named third-party, or as a result of breach of contract by the Respondent.

The Complainant concluded his complaint by stating that he did not accept the findings in respect of his medical condition and believes that the medical assessment process was incomplete, unfair and wrong in its findings.

Outline of Respondent’s position:

The Respondent’s legal representative stated, at the outset, that it was difficult to provide a summary of the Respondent’s case in circumstances where the Complainant had not set out his case in his complaint form. According to the Respondent’s representatives, the narrative part of the Complainant’s complaint contained a series of denials and an allegation of negligence on the part of the Respondent which caused him injuries. However, it was submitted that the latter matter was part of separate proceedings and were not relevant to this complaint.

According to their representative, while the Respondent would say that the dismissal was not just about medical issues but about engagement with them, the claim amounts to a dispute concerning medical diagnosis and prognosis. According to the Respondent, they had substantial grounds on which to dismiss the Complainant. However, it was further submitted, on behalf of the Respondent, that while not all of the grounds are medical in nature, if the Complainant wishes to contest medical issues then the Respondent is entitled to know the Complainant’s case in this regard and be given any reports on which he intends to rely.

The Respondent further submitted that the Complainant blames them for causing him an injury, which he says he received in the course of his employment on 12 February 2014. According to the Respondent, the Complainant has taken High Court proceedings on foot of that injury and claims that his injury was not resolved. In addition, the Respondent submits that, in keeping with this position, the Complainant disagreed with the medical prognosis presented to the Respondent, which indicated that he should have been fit to return to work. It is also submitted that the Complainant disagrees specifically with the Respondent’s Chief Medical Officer (CMO), who acted on information from the Complainant’s own doctors.

According to the Respondent’s submission, the Complainant was ultimately dismissed for failing or refusing to engage with the Respondent when they called upon him to attend for work. In addition, the Respondent submits that the Complainant failed or refused to engage on the issue of the cause of his accident.

Reason/context for Dismissal:

According to the Respondent’s submission, the majority of the period relevant to this claim is concerned with extensive attempts by the Respondent to engage with the Complainant concerning his failure to attend for work and/or at meetings with the HR Management and Occupational Health Support (OHS). In support of their submission in this regard, the Respondent submitted significant and detailed documentary evidence.

The Respondent submitted that the dismissal arose in the context of generous attempts to engage with the Complainant through HR and Occupational Health Support (OHS) and the CMO. According to the Respondent, an employer is entitled to expect direct engagement with HR. However, the Respondent submitted that despite their efforts in this regard, the Complainant failed or refused to engage with them.

The Respondent also submitted that the Complainant disagreed with the Respondent’s Chief Medical Officer with regard to his symptoms and his prognosis for return to work.

Legal Argument:

It is submitted on behalf of the Respondent, that this was a dismissal for failure to fulfil contractual terms. According to the Respondent the dismissal took place in a context of sick absence, were the Respondent was left frustrated in its efforts to engage with the Complainant. As a result, the Respondent submitted that it was a difficult case to categorise or with which to find any precedential comparison.

Notwithstanding this, the Respondent submitted that making available the provisions of Occupational Support and a company doctor is sufficient compliance of any standard that the law requires. According to the submissions on their behalf, the Respondent did its best (more than is contractually required) to address fitness to return to work concerns through its OHS and the CMO. According to the Respondent’s submissions, it is not required to do more than make reasonable adjustments in contemplation of its obligations under Section 16 of the Employment Equality Acts.

According to the Respondent’s submission, the decision to dismiss in this case comes not only within a range of reasonable responses but demonstrates a level of patience, fairness and facilitation that is not necessarily expected or required of an employer. In support of the submission in this regard, the Respondent’s representative cited the case of Governor of Bank of Ireland v Reilly [2015 ELR 229]. It was submitted that an employer is entitled to come to a reasonable conclusion that employees unacceptable absences constitute reasonable grounds for dismissal as this would, ultimately, constitute an incapacity to fulfil the contract in a reasonable fashion.

With regard to the issue of long-term absence, the Respondent made specific reference to a Scottish Court of Session ruling in the case of BS v Dundee City Council [2014 IRLR 131], which was on appeal from the UK Employment Tribunal. According to the Respondent, this case sets out the three themes that have emerged from case law, as follows:

Firstly, with regard to the theme that the employer must ask the question how long it can wait for the worker to recover, it submitted that, in the within case, the Respondent took the view that the Complainant had recovered, however, the latter disagreed. According to the Respondent they refrained from dismissal for an extended period of time whilst providing paid sick leave.

Secondly, with regard to the theme that the worker’s own views are relevant, the Respondent submitted that this can indicate both positively and negatively towards dismissal and, where the worker does not know when he will be fit again, it is likely to operate against him. According to the Respondent, in the within case, the Complainant took the view that he would never be fit to work.

Finally, with regard to the final theme that the employer should inform itself on the medical position, the Respondent emphasised the Court’s finding that the law “does not require the employer to pursue detailed medical examination”. In submission on this point, the Respondent stated that an employer is not contractually or statutorily required to be a primary carer and/or medical facility.

According to the Respondent’s submission, they did their best, which was more than is contractually required of them, to address fitness to work concerns through its Occupational Health Support and the CMO. It was further submitted that the Respondent does not undertake, as part of the contract of employment, to undertake assessments of a specialist nature nor is it required to do so.

Conclusion:

In summary, the Respondent submitted that it has never been suggested that there was an ulterior motive for the dismissal of the Complainant. It was further submitted by the Respondent that the dismissal was fair, given that the Complainant was (1) given fair notice that 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.

It is clear from the documentary evidence adduced that the Complainant was dismissed on the basis that (a) his actions in relation to the workplace accident of 12 February 2014 and (b) his failure to return to work in circumstances where he had been assessed fit to do so, left the Respondent with no other option other than to terminate his contract of employment.

Therefore, on the basis of the above, the assessment of the Complainant's complaint of unfair dismissal must be considered against the background of the events which commenced with a workplace accident in February 2014 and concluded with the events surrounding the Complainant’s failure to return to work in March 2017, when certified fit to resume by the Respondent’s Chief Medical Office (CMO).

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,…..(b) the conduct of the employee….”

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 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. Rather, 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 that fair process and procedures were applied when conducting the disciplinary process.

Workplace Accident – 12 February 2014:

With regard to the within case, the evidence shows that the circumstances leading to the Complainant’s eventual dismissal from the Respondent’s employment, commenced with a workplace accident on 12 February 2014. This accident became the subject of an investigation by the Independent Railway Accident Investigation Unit. The report of this investigation, which published on 30 April 2015, found, inter alia, that: “the immediate cause of the accident was that the [Respondent’s] van, did not stop, as required, at the Level Crossing and drove into the path of the oncoming train”. Arising from the accident and the subsequent Investigation Report, the Complainant appeared before a sitting of the local District Court on 2 July 2015, charged with dangerous driving.

Having carefully considered all of the evidence adduced in this regard, I am satisfied that, based on the findings in the RAIU Report and, notwithstanding that the charges of dangerous driving were dismissed, by the District Court judge, on the grounds that the accident did not occur in a public place, it was reasonable for the Respondent to seek to investigate the matter internally. In addition, I am satisfied it was also reasonable for the Respondent to have had an expectation that the Complainant would be cooperative in this regard.

It appears from the evidence that an initial investigation took place in the immediate aftermath of the accident, the outcome of which is contained in a document, dated 21 February 2014, entitled “Report on Potential Employer’s Liability Claim”. It is clear from the evidence, that the Complainant was not interviewed by the author(s) of this Report, however, it does contain evidence from a third party who visited him in hospital. This evidence suggests that the Complainant stated, in relation to the accident, that he did not know what had happened, other than, “suddenly the train was just there”. With regard to the issue of legal liability, this Report concluded, that: “the principal cause of the accident seems to be the failure of [the Complainant] to stop and look before he proceeded onto the crossing”.

The evidence also shows that the Complainant completed a “Report of an Accident”, which was undated. However, the document suggests that a statement made to the Gardaí was attached to the report. A copy of a “Cautioned Statement” which the Complainant provided to the Gardaí on 18 April 2014 was presented in evidence. Based on the balance of probability, I am satisfied that this document is most likely that which was also attached to the Complainant’s Accident Report. In his Statement to the Gardaí, the Complainant stated, inter alia, that he did not remember driving towards the crossing, but remembers seeing the train as it was about to hit his vehicle, after which he blacked out.

According to the evidence, the Complainant had a meeting on 13 August 2015 with his local management, which included the Human Resources manager, Mr A. Notes of this meeting, which were taken by Mr A, and were provided in evidence, state that the Complainant provided details in relation to the context in which the accident occurred, e.g. timings relating to deliveries etc.   With regard to the actual accident, the Notes state that the Complainant “was unable to recollect what happened immediately prior to the collision and consequently could not explain the cause of the accident other than the weather conditions and what he saw as the failure of the train driver to sound a warning as (sic) the appropriate point on the track”.

The next reference to the accident is contained in a Note of a meeting which took place on 16 March 2017 and which was again attended by the Complainant, the Operations Manager and the HR Manager, Mr A. This note states that: “Mr A then stated that as it was still not clear how the accident occurred, the Company will be making further enquiries and would revert to [the Complainant] at a later date following his return to work. In the meantime, the Company would arrange a return to work based on non-driving duties.”

Another meeting in this regard took place on 3 May 2017, which was again attended by the same individuals as the two previous meetings. A Note of this meeting, which is signed by Mr A, indicates that further discussion took place in relation to the accident of February 2014. The Note suggests that Mr A indicated to the Complainant that the Respondent was finalising reports on the accident and, in this regard, referred to statements made by the Complainant to the Gardaí and the Respondent’s Insurance Services. The evidence indicates that the Complainant confirmed the accuracy of the information in these statements, albeit that significant time had elapsed since they were provided.

The evidence also suggests that Mr A expressed the Respondent’s concern that there had been a near fatal incident, which had resulted in extensive damage and from a Health and Safety point of view the Respondent needed to investigate what happened, to ensure that this could not happen again. The Note suggests that Mr A then proceeded to discuss the matter of the dangerous driving charge made against the Complainant. The evidence suggested Mr A read from a newspaper article, published at the time of the court case, which suggested that the judge made a comment to the effect that “the manner of the driving was dangerous”. The Note suggests that, in response to a question from Mr A, as to whether or not he considered the reporting of the judge’s comments to be accurate, the Complainant confirmed that it was what was said but added that “there was no one there to see what happened and the judge was just expressing her opinion”. In response to further questioning from Mr A, the Complainant agreed that it was fair to say that the judge had said he was at fault.

The evidence shows the Complainant did not return to work, as a result of which his case was escalated to the Respondent’s Group HR Department to be dealt with as a disciplinary matter. This process led to the issuing of a letter, on 17 August 2017, from the Respondent’s Employee Relations Executive (Ms B). According to this letter, the Respondent was considering taking disciplinary action against the complainant on the basis of, inter alia, “dangerous driving while carrying out your duty on 12 February 2014, causing extensive damage to a train and to the Company Vehicle”.

Following the Complainant’s failure to engage in this regard, as requested in Ms B’s letter, the process proceeded to the point where, on 26 September 2017, the Respondent’s HR Manager - Retail Operations, (Ms C) wrote to the Complainant advising that he was to be dismissed from his employment as a result of, inter alia, his “failure to provide any response in relation to the Company’s concerns regarding your driving on the date of the incident”.

The Complainant appealed Ms C’s dismissal decision. In his appeal report, dated 11 January 2018, the Respondent’s Head of Employee Relations (Mr D) found, in relation to the accident, that: “the company was right to have serious concerns in relation to [the Complainant’s] actions in the context of the accident of 12 February 2014 and I have no doubt that the accident was caused primarily by his failure to observe the “Rules of the Road” in relation to level crossings”.

In relation to the February 2014 accident, there is clearly an inconsistency in relation to the charges as set out in Ms C’s letter of dismissal with those as contained in Ms B’s of 17 August 27 and Mr D’s appeal outcome letter of 11 January 2018. While Ms C refers to the Complainant’s failure to provide any response in relation to his driving, on the date of the incident, I find little in the evidence adduced, as set out above, to support a view that the Complainant did not, or refused, to engage in the Respondent’s internal consideration of or investigation into the accident of 12 February 2014. In this regard, I am satisfied that the Complainant provided as much information to the Respondent in this regard as was in his possession or which he could recall of the incident, particularly given the passage of time.

However, based on Mr D’s appeal findings, I am satisfied that the Complainant’s actions, with regard to the 2014 accident, which contributed to his dismissal related to his driving on the day in question rather than any failure to engage with the Respondent in their investigation of same. With regard to the Complainant’s actions/driving on the morning of the accident, I am satisfied that the Respondent has significant grounds to be concerned and to consider the matter to be of sufficient gravity to warrant the application of disciplinary procedures. However, those actions were not considered in isolation but in combination with the Complainant’s approach to and actions in relation to his return to work, which I will now proceed to consider.

Absence/Return to Work:

The evidence adduced, shows that the Complainant never returned to work following the accident on 12 February 2014. The Respondent’s position is that the Complainant’s failure to return to work, particularly in 2017, after he had been certified as fit to do so, was the primary reason leading to his dismissal.

The evidence presented clearly attests the seriousness of the accident on 12 February 2014 and the injuries received by the Complainant as a result. The evidence adduced further established that the Respondent operates an Attendance Support and Management Process (ASMP), which is designed to provide employees with appropriate support, in general in relation to attendance but, in particular, during periods where they may be experiencing significant medical issues which impact upon their attendance at work.

Having carefully reviewed the ASMP in detail, I am satisfied that it is a comprehensive and balanced approach to managing health-related absence, in particular, as in the within case, where the condition underpinning the absence is serious and is, therefore, long-term in nature. The process is based on a graded escalation approach starting, at the lower end, at Status 5, where the employee is expected to achieve a satisfactory level of attendance in the short-term and escalating, over time, to Status 1, where, if a satisfactory level of attendance is not achieved within the next Review Period, proceedings for dismissal, on the grounds of a persistent unsatisfactory attendance record, would be initiated under the agreed disciplinary procedures.

The Respondent presented comprehensive documentary evidence which showed that the ASMP was initiated, in relation to the Complainant, in May 2014, just two months after his accident.   The process, which was conducted by the HR Manager, Mr A, involved six review meetings up to 18 March 2016, by which date the Complainant’s status had been escalated to Status 1.   However, the evidence shows that rather than initiating the disciplinary process at this point in time, the Complainant was referred to the Chief Medical Officer (CMO) for assessment as to whether he would meet the requirements for ill-health retirement.

On 19 January 2017, Mr A received a report from the CMO which set out, inter alia, the following in relation to the Complainant’s situation: (a) that the report from his specialist provided that there were “no significant risk for a return to work” and (b) while he is somewhat reluctant to return to work”,…… it has been suggested to him that this would be the appropriate next step”.   In addition, the report confirmed that the Complainant had sufficient fitness to return to his usual duty on the basis of the removal, from his duties, of any requirement to handle particularly heavily items. The report also identified some options in relation to alternative duties which the Complainant would also be fit to carry out.

The Complainant raised issues in relation to the CMO’s report of 19 January 2017, on the basis that it did not include an assessment of recent MRI report, which he had undergone. As the CMO had no record of a recent MRI report file, the Complainant was requested to provide a copy of the report he was referring to. However, when the report in question was submitted by the Complainant it was dated September 2015. In a further letter to Mr A, dated 10 May 2017, the CMO confirmed that they had received the report in question from the Complainant in November 2015 and it had been included in the assessment on which the CMO’s report of 19 January 2017 was based. On that basis, the CMO, by way of an additional report dated 10 May 2017, confirmed to Mr A that the position as set out in his January 2017 report, that the Complainant was fit to return to work, was unchanged.

The CMO provided comprehensive oral evidence at the Hearing in support of his professional opinion, as set out in his report of 19 January 2017, that the Complainant was fit to return to work, perhaps initially with some modification to duties. In addition, the CMO presented evidence by way of a report dated 9 November 2016 from the Consultant Orthopaedic Surgeon, who had treated the Complainant for the injuries sustained in the 2014 accident.

In his evidence, the Complainant suggested that the Consultant Orthopaedic Surgeon’s assessment was not a true reflection of the situation with regard to his injuries, as to have accurately reported the situation (i.e. that he was not fit to return to work) would have required the Consultant to be critical of his own work, which, according to the Complainant was something he was never going to do. Having carefully reviewed the evidence adduced in this regard, I find there to be no basis for the Complainant’s contention in this regard. In fact, I find that the evidence contained in the Consultant’s report clearly supported and provided further professional validity to the view expressed by the CMO in his January 2017 report that there was no significant risk to the Complainant returning to work.

In my view, the key issue in relation to dismissal on the grounds of inability/failure to attend work on medical grounds, is the information which is available to the employer at the time the decision to dismiss is taken. Having carefully considered all the evidence adduced in relation to the Complainant’s medical situation at the time of dismissal, I am satisfied that the Respondent based their decision on clear, timely and professional medical opinion as contained in the CMO’s reports dated 19 January 2017 and 10 May 2017.

In addition, it is noted that the only medical evidence being relied on by the Complainant, when he challenged the CMO’s report of 19 January 2017, was an MRI Report, from September 2015, which the CMO had already taken into consideration when issuing his report. Clearly, any other medical reports which the Complainant may have had or been aware of at the time, but which he never submitted or referred to at either the medical assessment stage or at any point during the disciplinary process, cannot be considered, in retrospect, to be relevant in the context of the decision to dismiss, which was confirmed in Mr D’s appeal report of 11 January 2018 and was based on the CMO’s medical assessment of January 2017, which in turn was influenced by a recent report from the consultant who had been the Complainant’s treating consultant from the time of his accident.

During the hearing, significant submission was made by and on behalf of the Complainant in support of the contention that the CMO’s reports, on which the Respondent based the decision to dismiss, were incomplete and ignored the contrary views expressed by the Complainant’s own medical advisers, in particular his GP. Having carefully considered all of the evidence adduced in this regard, including a report from the Complainant’s GP, dated 29 August 2017, I find none which would suggest that the medical reports, on which, the Respondent based the dismissal decision on were anything less than a reasonable and robust basis for such a decision.

Having carefully considered all of the evidence adduced, particularly the oral evidence presented during the Hearings, it appears to me that the Complainant was not genuinely interested in returning to work. It is possible, on the balance of probability, that the Complainant’s position in this regard may have been influenced somewhat by the prospect that the ASMP could potentially have resulted in retirement on the grounds of ill-health and that he was, therefore, disappointed when his personal circumstances did not meet the criteria required for such an outcome. However, as set out above, the basis on which the decision, that he was fit to return to work, was made was robust to the extent that it rendered any attempt to hold out for a reversal as futile.

Additionally, it would appear from the evidence that the Complainant doubted the ability of the Respondent to implement accommodations which would have allowed him to return to work, at least initially, on reduced/adjusted duties. However, the Complainant did not test his theories in this regard and his failure to engage at all in a return to work arrangement, even on a trial basis, significantly undermines his claim of unfair dismissal.

It is to the advantage of an employee, claiming unfair dismissal, if they can demonstrate that they took whatever steps were open to them to protect their employment while still in a position to do so. This is particularly so in circumstances where, as in the within case, the employer is clearly seeking to get the employee back to work. In the within case, had the Complainant engaged in an open and constructive manner with the Respondent in relation to a return to work arrangement, as opposed to refusing to engage with their efforts in this regard, I am of the view that, on the balance of probability, it is unlikely that he would have been dismissed.

Consequently, taking all of the above into consideration, I find that the Respondent had good grounds on which to dismiss the Complainant and thus their decision to do so falls within an acceptable range of sanction as might be considered by any reasonable employer in similar the circumstances.

Fair Process/Procedure:

Having found that the Respondent had good grounds to dismiss, the final element in assessing the Complainant’s claim for unfair dismissal, is to review the process and procedures applied by the Respondent in arriving at their decision in this regard.

The evidence adduced shows that, in June 2017, the Complainant’s case file was sent by his local HR Office to the Respondent’s Group Human Resources Department. Having reviewed the file, an Employee Relations Executive, Ms B, wrote to the Complainant on 17 August 2017, informing him that the Respondent was considering taking disciplinary action against him on the basis of (1) his failure to fulfil the terms of contract of employment by returning to work on 27 March 2017, in circumstances where he had been certified as fit to return by the CMO and (2) dangerous driving while carrying out his duty on 12 February 2014.

Having received no response or explanation from the Complainant within the 10-day timeframe stipulated in Ms B’s letter, the matter was escalated to the HR Manager of the Respondent’s Retail Operations, (Ms C), for further consideration. Ms C wrote to the Complainant on 26 September 2017 informing him of the decision that he was to be dismissed from his employment with the Respondent.

When the Complainant, through his solicitor, appealed the dismissal decision, the appeal was heard by the Respondent’s Head of Employee Relations, Mr D. Having reviewed all the evidence adduced, I am fully satisfied that, when considering the Complainant’s appeal, Mr D carried out a thorough and comprehensive review of all the circumstances pertaining to the dismissal. The outcome of the appeal, which found that the decision to dismiss was correct and reasonable having regard to all the facts pertaining to the case, was clearly set out in a nine-page document issued by Mr D to the Complainant’s solicitor, on 11 January 2018.

Having carefully considered all the evidence adduced, I am satisfied that the disciplinary processes used by the Respondent and the application of same were reasonable, balanced and fair in all the circumstances.

Conclusion:

At the time of his dismissal in January 2018, the Complainant had been absent from work since the accident in February 2014. For the first three years of that period of absence, the Respondent carefully and diligently applied the Attendance Support and Management Process (ASMP). At the conclusion of that process, at which point the Complainant having escalated to Status 1, the medical advice available to the Respondent was that he was fit to return to work. Consequently, the Respondent was clearly within their right, as set down in the ASMP Escalation Process, to commence disciplinary procedures against the Complainant, when he refused to return to work and/or engage with the Respondent in a reasonable manner to consider the appropriateness or feasibility of such a return.

When the disciplinary procedures were eventually initiated, the Complainant was provided with a balanced and fair process. The evidence suggests that the appeal process conducted by Mr D was particularly thorough and comprehensive in nature.

Consequently, taking all of the above into consideration I find that the Complainant’s dismissal was fair in all the circumstances and that his complaint in this regard is not 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 Dismissal