Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Charity

Representatives

Business Legal

Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00027165-001

15/03/2019

The complainant commenced employment with the respondent in April 1987. In 2016 she was the subject of disciplinary proceedings which resulted in a sanction.

She became unfit for work and in due course her employment was terminated on grounds of incapacity on October 25th, 2018.

She was paid €36,000 per annum (approximately) for an average thirty-six hour week.

The respondent accepts that the employment was terminated on notice on December 21st, 2018.

This followed a notice to the complainant on October 25th, 2018 drawing attention to her failure to provide a medical report from her doctor that would indicate ‘a concrete timeframe’ for her return to work.

On that basis the letter continued.

In the circumstances I can only conclude that you do not anticipate that you will be fit to return to work within a reasonable timeframe (notwithstanding that [doctor’s name] has certified you as medically capable of returning to work) and accordingly I regret to inform you that due to your on-going incapacity your employment with the [respondent] will terminate on the expiry of eight weeks (unpaid notice) on 21 December 2018.

In December 2016 the respondent carried out an independent investigation under its child protection policies following an allegation against the complainant. The allegation was that a child had been pulled by the arm.

She was suspended for the duration of the investigation.

The investigation concluded on February 16th, 2017; the allegation against her was upheld and it was decided that she should be given a final written warning and that she should no longer work as a childcare worker. She was to be re-deployed within the organisation. This decision followed consultation with Túsla and was communicated to her on March 10th, 2017.

She was advised of her right to appeal on March 22nd.

The appeal was heard on April 11th by an external consultant, but the appeal did not succeed.

However, the complainant went on sick leave on May 11th, 2017.

Efforts were made by the respondent to arrange her return to work and evidence was submitted of extensive engagement to this end.

A meeting was held with the complainant on June 16th, 2017 at which the respondent’s decision was explained to the complainant. She was told she would be provided with re-training for an alternate role.

Following this there was further correspondence on June 21st, advising her that she was being referred for an independent medical assessment, and this confirmed her fitness to return to work to perform administrative duties.

The respondent wrote on July 12th proposing a meeting on July 17th, but the complainant said she could not attend because she was on sick leave. The respondent wrote again on that date, noting that the view of the independent medical assessment conflicted with that of her own GP and proposed a further independent assessment.

She was advised of the arrangement for this on July 26th, 2017.

On August 3rd, 2017 the respondent was contacted by the complainant’s representative and the respondent replied confirming that the complainant remained an employee.

The second medical assessment took place on October 31st and it again confirmed the complainant’s fitness for work.

There were renewed attempts by the respondent on December 4th and 13th and on January 22nd to engage the complainant but without success. Her reason was that she was on sick leave.

There was further correspondence from the complainant on how the respondent had handled the matter and the respondent wrote again on May 16th, 2018 reminding the complainant that in February she had said that her medical team would be reviewing her condition and that the respondent would be advised of the outcome, but three months later nothing had been heard from her.

The respondent proceeded to put her on notice that if nothing was heard by the end of May it would;

‘conclusively assume that you do not anticipate that you will be medically fit to return to work within a reasonable timeframe and on that basis I will terminate your contract of employment with [the respondent].

Following correspondence with the complainant’s representative the deadline to submit a medical report and a time frame for her return to work was extended to August 31st.

Nothing was heard from the complainant and the letter terminating her employment issued on October 25th, 2018.

The investigation into the December 2016 incident against the complainant was substantially flawed, was not truly independent and this was continued in to the subsequent disciplinary process.

The complainant disputes the gravity of the incident and says that she only gestured to the child in question.

In particular, the complainant was given no opportunity to challenge the findings of the investigation.

Her complaints about the investigation were set out in the correspondence from her representative in a ten-page letter in August 2017. Likewise, the complainant was denied the opportunity to cross examine witnesses which is a fundamental aspect of fair procedure.

The respondent insisted that the complainant could only be represented by a trade union representative or a colleague. Even then, the respondent made it clear that, in the case of a union official being the representative they would simply be an accompanying person and not a representative or advocate in any meaningful sense.

The complainant relies on the authority set out in Lyons v Longford Westmeath ETB, High Court, 2017 and Borges v The Fitness to Practise Committee [2004] 1 I.R. 103

However, the facts of this case bring it within the criteria entitling a person to legal representation.

But fundamentally, the respondent conflated the processes of a preliminary investigation, which ought to be a fact-finding process only, and the disciplinary hearing, where stricter procedural rules apply.

There were other breaches of both the audi alteram partem and nemo judex principles in the management of the case.

In the latter regard, the decision makers (including the external consultants) were not sufficiently independent to avoid the taint of ‘a real possibility of bias’ which is all that is required according to the UK EAT in Watson v University of Strathclyde UKEATS/0021/10/BI.

Then, having imposed a sanction of a written warning the complainant was invited to appeal but only in respect of the sanction itself. It was not an appeal against the decision to apply a sanction.

In the event the sanction was varied to assigning her to administrative duties.

This had a profound effect on the complainant and she became severely distressed by the outcome. She submitted a grievance which was supported by her GP and this was not addressed, with the respondent insisting that she return to work.

However, the certification of her fitness to return to work was not unconditional, and her grievances against the respondent were noted in the medical certification as a factor.

While the respondent has claimed that the termination was on the grounds of capability as provided for in section 6 (4)(a) of the. Unfair Dismissals Act the conduct of the employer is a factor in considering whether the dismissal is on this ground is unfair.

The relevant conduct in this case is the failure of the employer to process the complainant’s grievance.

The respondent’s requirement that the complainant return to work but to the disputed, alternative role, and that any outstanding issues should then be dealt with was unreasonable, especially as it was aware from medical reports that this was the very barrier to her return to work.

The narrative of events as set out above in both parties’ submissions is not in dispute, for the most part.

The complainant’s case, as outlined above can be summarised by saying that she was subjected to a flawed investigation and disciplinary process that resulted in an unwarranted sanction against her.

This resulted in great distress to her and a prolonged absence on sick leave. Her grievance in respect of how the disciplinary process was conducted remained unresolved.

She never did return to work and has relied heavily on the above facts for not doing so, despite being certified otherwise fit to return to work (in general).

In due course, the respondent terminated her employment on the grounds of capability.

An important consideration therefore, is the precise link, if any between the two sets of facts; the disciplinary process and its outcome, on the one hand, and her extended sick leave and the capability ground on the other.

Can a link be made between these two strands that becomes a factor in the fairness of the termination of the complainant’s employment.

The internal process was far from perfect.

The applicability of the full suite of fair procedure requirements at the highest level (such as the right to be legally represented, to cross examine etc) to workplace investigations has been the subject of judicial scrutiny in recent times and the matter has now been settled, in particular by the decision of the Supreme Court in Iarnrod Éireann/Irish Rail v McKelvey [2018] IECA 346 which, after a period of some uncertainty has re-instated the test previously set out in Burns v The Governor of Castlerea Prison [2009] 20 E.L.R. 109.

That test is that here must be exceptional reasons to justify legal representation.

The significance of alleged breaches of the complainant’s rights in that regard would be a good deal more significant if it had a direct connection to the termination of her employment, for example had the sanction of dismissal been applied for the alleged misconduct.

Then, the fairness of the process which led directly to her dismissal would be at the very heart of the consideration of the fairness of the dismissal itself; as indeed it is in a great many, if not most complaints under the Unfair Dismissals Act.

The complainant set out the flaws as perceived by her above. Some of these were not disputed, some were less convincing.

In particular, the respondent showed a regrettable level of confusion about the complainant’s rights following the conclusion of the investigation report and in the course of the disciplinary process.

Correspondence to her from the respondent CEO on March 22nd, 2017 ran as follows.

Dear [complainant],

Thank you for your letter dated 21 March outlining the grounds you wish to appeal under. It is

important that I point out to you that the right to appeal is in relation to the sanction issued only and

does not provide for an opportunity for a re-investigation of the report issued by [the investigator].

To allow this appeal to move ahead I need to clarify if the grounds you have set out are the grounds

for appeal against the sanction. If not then I need you to set these out for me by return.

Please respond to this letter by close of Business on Friday the 24 March. If l receive no further

communication or indeed, you wish to withdraw, your appeal then I will have HR follow up in terms

of implementing the sanction. ‘‘

Of course, while it may be understandable that an employer would not want a ’re-investigation of the report’ a person facing disciplinary action has every right to challenge any evidence which may be considered in deciding on a sanction against them, including interrogating elements of an investigation report.

The status of an investigation in a disciplinary hearing falls into this category; it is no more than evidence and therefore any challenge to it need not be a ‘re-investigation’, but a perfectly normal requirement of fair procedure that a person be permitted to challenge the evidence relevant to any disciplinary sanction. (It is unlikely, in any event that they would wish to challenge the entire investigation in most cases).

The report of an investigator does not, per se, carry any greater weight than any other evidence, and does not enjoy some form of immunity from scrutiny.

The investigation report was not opened at the hearing and the investigator may have been given terms of reference that allowed her to reach conclusions on fault.

That is not unusual, and it is common in investigations under Dignity at Work or bullying policies that an investigator will be invited to draw conclusions as to whether the particular policies were broken, and not simply reach conclusions of fact only.

Two points then arise.

First, more rigorous principles of natural justice will apply to the conduct of such an investigation, not necessarily legal representation or the right to cross examine, although the right to confront and respond to any material on which the investigator might base her conclusions would be an absolute right.

But critically, and as already noted, while the conclusions of an investigation, when properly carried out, may carry weight with a disciplinary decision maker on their merits, the right of any employee facing disciplinary action to challenge the findings, and any disciplinary conclusions to be drawn from them is absolute as a matter of fair procedure.

In any event, it is difficult to see how a person might, in practice, be effectively restricted from arguing the broader merits of a case when challenging the nature of the sanction, as the two are generally interrelated and so the restriction of the complainant’s appeal to the question of sanction was incapable of enforcement as well as quite wrong.

Of course, where an employee is unfamiliar with the process or is without trade union representation, for example she might not challenge such a restriction and serious injustice could result.

Taken in the round, had the complainant’s employment been terminated following such a process her case for unfair dismissal on the basis of these breaches of procedure would have been a different one.

However, that is not the basis on which the complainant’s employment was terminated, despite the great emphasis placed on this aspect of the matter in the complainant’s submission.

While it might be said that a connection could be forged between the chain of events starting with the original disciplinary decision and the situation that developed culminating in her termination it is a connection that is so stretched, tenuous and lacking in proximity of any sort as to rob it of any validity as a factor in determining the fairness of the final decision by the respondent to terminate the employment.

These events took place between December 2016 and May 2017 and her employment was terminated on December 21st, 2018 as a result of a quite different set of circumstances.

The complainant went on sick leave on May 11th, 2017.

She was certified as fit to return on a number of occasions and she has relied on a statement in correspondence form her GP on October 31st, 2017 that ‘the main barrier to her return to work was her on-going sense of disaffection with regard to her work situation’.

Her representative relied heavily on the alleged failure of the respondent to process her grievance.

But critically, and at the heart of this complaint is whether the complainant’s ‘on-going sense of dissatisfaction with regard to her work situation’ provided a valid justification for her failure to return to work and renders the respondent’s decision to terminate her employment in the circumstances set out in the above submissions an unfair dismissal.

Indeed, the respondent’s submission, and not contested by the complainant, shows that numerous efforts were made to seek to engage the complainant on how she might return to work which, for various reasons, (some better than others) she declined to avail of.

Contrary to her submissions at the hearing I find that it was not the respondent which failed to engage in the matter, but the complainant.

It may be that she viewed her resistance to returning to work as providing her with some leverage in the matter of the original sanction but, if so, this was poor decision making.

Admittedly, the essential basis of her grievance; the demotion to non-frontline duties was not on that agenda but remaining on sick leave indefinitely until this was resolved in her favour was never likely to be an effective strategy.

Nonetheless, whatever remedy may have been available to her on return to work, (and these may have been limited) remaining on sick leave as a pre-condition to a resolution, or as a means of exerting leverage on the respondent was not an option for the obvious reason that sick leave is what it says it is.

That this was the case is clear from the complainant’s submission where the following appears;

Whilst the Respondent asserts that the Complainant was dismissed only by reason of capability as provided for in Section 6 (4) (a) of the Unfair Dismissals Acts, it is disingenuous to assert that this is the sole, or main reason, for the termination. Under Section 6 (7) of the Unfair Dismissals Acts, the conduct of the employer is a factor for consideration in deciding whether a capability termination is an unfair dismissal. To do otherwise would leave the legislation open to abuse. It in this instance, the conduct of the employer is that it ignored a grievance complaint letter setting out in detail a series of clearly defined issues with regard to the conduct of the investigation.

Emphasis added

This is further conflation of the grievance with the alleged illness; and evidence that the complainant believed that resolution of the grievance was a pre-condition to her return to work.

The attempts to infer approval of the complainant’s actions and her decision to remain on sick leave from the medical reports is fanciful.

The obligations that fall on employers in these situations are set out in the leading case of Humphries –v- Westwood Fitness Club [2004] ELR 296.

Several, essentially fair procedure-based tests are set out there for the management of a process of termination on the incapacity ground. They are;

1)      Examine the factual position and seek clear medical guidance regarding the employee's capability including the degree of impairment arising from the disability and its likely duration; and

2)      Consider what, reasonable accommodation or appropriate measures (including any special treatment or facilities) can be made available by which the employee may become fully competent to perform his or her role; and;

3)      Consult with the employee along the way to ensure that the employee has a say in any decisions which could adversely impact their terms and conditions of employment or which could lead to the termination of employment;

4)      Document the entire process so that it is clear what has been examined and considered by the employer and what the response of the employee is before any decision is made regarding the employee.

I find that the respondent met the broad thrust of these requirements to the extent that it could in face of the complainant’s general lack of cooperation with its efforts to get her to return to work.

It might be said that, very strictly speaking, in fact the complainant did not, objectively lack capacity to return to work. But as far as her employer was concerned it amounted to the same thing; she was on extended sick leave and refusing to provide medical certification as to whether or when she might return, for the reason that has been fully addressed above.

In all the circumstances the termination of her employment on the incapacity ground was fair and her complaint is not well-founded.

For the reasons set out above I find complaint CA-00027165-001 not to be well-founded.

Unfair dismissal, incapacity.