Complainant

Respondent

Parties

Bryan  Power

Integer

Representatives

A&L Goodbody  

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-00034771-001

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034771-004

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034771-005

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034771-006

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011

CA-00034771-007

20/02/2020

The respondent is a medical device manufacturer. The complainant was employed as a General Operative from May 3rd, 2007, until January 29th, 2020, when his employment was terminated.

(For the convenience of the reader the respondent case in respect of all issues is set out first, although this is normally only done in Unfair Dismissals cases).

The complainant had a long record disciplinary and had been given warnings, in May 2014 (verbal) for poor timekeeping and attendance, in February 2015; (written) for disruptive behaviour, and a final written warning for excessive absenteeism and not following procedures in April 2015.

There was a further final written warning extended by six months for continued absences in 2016.

This was followed by a written warning for ‘disruptive and inappropriate behaviour’ in July 2018 and a final written warning for further absences, unacceptable behaviour, and breach of procedure in November 2018.

Regarding that final written warning in November 2018, he was invited to a disciplinary meeting to discuss the issues and was offered the right to be accompanied but he chose not to be.

The complainant's supervisor and the HR Manager attended the meeting, in the course of which there was a full discussion of the issues and the complainant was given an opportunity to respond.

This final written warning was confirmed in writing and the sanction was to remain on his file for twelve months with a warning that any future misconduct by him in that period would result in dismissal. Due to his prolonged absence from December 2018 until the date of his dismissal, this warning remained active on the complainant's file for a longer period.

At the disciplinary outcome meeting on November 13th, 2018, the complainant made a bullying complaint and a meeting was arranged with a manager for November 19th, 2018, to discuss it.  The complainant did not attend and said that he was told by his solicitor "not to make a paper trail" or meet with the respondent to discuss his concerns.

The complainant was told on November 20th, that unless, he provided details of the complaint, it could not be investigated, and a meeting with an investigator did take place November 29th, 2018, at which the complainant made a number of allegations. 

     Arising from this, he said the respondent had failed to provide him with a safe place of work and that named members of the respondent's HR department also allegedly ignored the complainant's complaints.

The investigator concluded that there was no evidence to support the complaint. The complainant had failed to attend a meeting set up to hear his grievance and HR personnel had advised the complainant on numerous occasions how to make a complaint. There was no evidence that these individuals ignored the complaints.

While those complaints were being investigated, further issues with the complainant arose. He did not returntoworkafterChristmas2018; or inform the respondent that he would be absent from work.

The respondent sought an explanation about his absence on January 22nd, 2019, and on the 24th the complainant came to the workplace and informed the Senior HR Manager that he would not be returning to work due to issues with his supervisor and because the respondent had not provided him with a safe place to work. He said that he had a new job and would be making a complaint to the ‘Labour’ Relations Commission.

HR scheduled a meeting with the complainant on January 28th, 2019, but he did not attend or provided any explanation for his non-attendance.

Following this, the complainant remained absent from work and was informed on numerous occasions that he had failed to follow the absence reporting procedure and had not provided medical certification.  He was told that his employment would be terminated if this continued.

On May 7th, 2019, the complainant advised the respondent that his GP had certified him fit to return to work and would provide a backdated medical certificate to cover his previous absence (although no such medical certificate was provided to the respondent).

The complainant said that he could not provide the requested medical reports earlier for serious health reasons as he had not left his home for a number of weeks. The respondent was understandably concerned by this and arranged for the complainant to attend an appointment with its company doctor on May 13th, 2019.

The company doctor advised that he was not happy for the complainant to return to work until he had the opinion of an independent specialist. Attempts were made by the doctor to find a specialist to whom the complainant could be referred but this proved difficult.

As the complainant was not deemed fit to return to work by the company doctor, he was sent Income Protection Insurance forms to complete on June 21st, 2019, which he refused to complete.

The complainant was seen again by the company doctor on  July 23rd, 2019, and again deemed unfit for work and so advised by the respondent. 

On July 25th, 2019, the complainant told the respondent that he had five medical reports stating that he was fit to return to work but despite being asked for these reports he did not provide them.

The complainant asked for certain documentation, which was enclosed with the letter, and he also asked for a number of appointments about his previous complaint, and about appealing his grievance. These meetings were scheduled, and the time and date of these meetings were noted in the letter.

A meeting was rescheduled at the complainant's request for August 1st, 2019, but he failed to attend.

On August 8th, 2019, the complainant asked for a copy of his most recent medical report, although it had already been provided to him and he sought a more detailed report was informed that this was not possible at that time because the company doctor was on leave.

The respondent arranged for the complainant to attend another independent occupational specialist and an appointment was arranged for August 13th, 2019, but he walked out half-way through and refused to give the occupational health specialist permission to share his opinion.

The complainant was told that it was a condition of his employment that he attend medical appointments when requested to do so and that, as no new medical evidence was obtained, he continued to be deemed unfit for work and that the respondent could not keep the complainant's position open indefinitely.

He was also told that unless he could provide medical evidence that he was fir for work, contrary to the opinion of the company doctor, his employment would be terminated on September 16th, 2019.

On August 29th, the complainant reported the HR Manager to the Gardaí for breaching his data privacy rights after a letter was delivered to his former address. The complainant was told that this was an honest mistake made by the delivery driver.

Also, on August 29th, the complainant said that he had left a requested medical certificate certifying his fitness to work with security; but that certificate was three months old. He was again informed that he needed to provide an up-to-date medical certificate by September 23rd, or there would be no option but to terminate his employment.  

On September 9th, the complainant provided the respondent with a letter from a consultantpsychiatristtohisGPdatedMarchof2019,but it said nothing about his fitness for work.

On that same day the complainant was   told that the respondent needed current medical evidence of his fitness to return to work and consent for the company doctor to speak to the complainant's GP and that unless it received up-to-date medical evidence of his fitness to return to work and that consent by September 23rd, that it would terminate his position as it could not keep it open indefinitely.

When he had not done so by that date the respondent extended the deadline to September 27th  as the complainant said he would be attending his GP that week.

On September 27th the complainant provided the company with a back-dated medical certificate from his GP, which noted that he was unfit for work between May 6th and October 25th 2019 and the consent for the company doctor to speak to his GP.

On October 1st, the respondent withdrew the threat to terminate the employment and said it would keep his role open for another two months until November 29th subject to him continuing to provide medical certificates, attending the company doctor and his manager when required and strictly adhering to whatever treatment plan his GP or any consultant deemed necessary to help him to recover.

He was expressly informed that failure to adhere to the above requirements could lead to the termination of his employment and on November 14th, he was told that an appointment had been made for him to see the company doctor on November 25th.

On November 25th the complainant told the respondent that he could not attend the scheduled appointment due to a car problem and it was rescheduled for the 26th and again for December 2nd  at his request.

As he alleged that he had been deemed fit for work, he was asked to bring supporting documentation to the appointment, but he did not do so. In fact, the respondent received a medical certificate from the complainant’s GP on December 18th stating his concerns about the complainant's fitness to return to work

On December 20th, the complainant was told that that an appointment had been scheduled with the company doctor for January 6th, 2020, and on the 7th the company doctor issued a report, saying that had significant reservations about the complainant's fitness for work and also that the complainant's difficulties were ikely to continue

On January 10th, the complainant was invited to a meeting with management now that the respondent had received medical reports from the complainant's GP and the company doctor on January 15th   and this meeting was followed by a letter to the respondent with the above medical opinion.

That letter also noted and summarised the incidents that had occurred over the previous twelve to thirteen months that needed to be addressed and invited the complainant to a disciplinary meeting on January 17th   to discuss them and to provide him an opportunity to explain the various events.

He was reminded that he was on a final written warning for issues relating to his absence from work, unacceptable behaviour, and breach of procedure on November 13th, 2018, and he was informed that the outcome of the disciplinary meeting on 17 January 2020 could be dismissal.

He was provided with a copy of the respondent's disciplinary policy and was informed of his right to be accompanied to the disciplinary meeting.

On January 16th, 2020, the complainant phoned the respondent to say that he would not be attending the disciplinary meeting as he needed to return to his GP prior to the meeting, but the complainant was told that the meeting was rescheduled for January 22nd, and that if he could not attend, it may go ahead without him.

The complainant did attend the disciplinary meeting and chose not to be accompanied and claimed during the meeting that his actions over the previous twelve to thirteen months were because he had been sick but that he had recovered.

This contradicted the information he had been providing to the respondent insofar as he repeatedly insisted that he was fit to work during (even though the company doctor did not agree with this assertion).

The complainant also offered new information about his health, which had not been referred to previously.

On January 27th, 2020, the complainant was invited to a disciplinary outcome meeting on January 29th and was informed that taking his disciplinary record into account and an active final written warning on his file, his employment was being terminated.

He was offered the right to appeal, and an appeal hearing was held on February 10th.  He chose not to be accompanied at the meeting.

The appeal did not succeed, and the complainant was told this on February 18th. The decision maker agreed that the complainant's conduct over the previous twelve to thirteen months had been unacceptable and that his conduct during the appeal did not give her any confidence that his conduct would improve if the dismissal were overturned. 

This was not a constructive dismissal. The complainant was dismissed from his employment following a fair, thorough, and legally sound disciplinary process.  

The complainant states that the reasons for the termination of his employment were, failure to follow absence reporting procedures, not agreeing to attend the independent occupational specialist; and not allowing the occupational specialist to send a report because the complainant alleged it was biased.

The respondent rejects the allegation that the termination of the complainant's employment related in any way to a Garda investigation. He was treated fairly, reasonably and with respect at all times throughout his employment and this is evidenced throughout this submission.

At no time did the respondent receive any medical evidence that the complainant was fit to attend work. On the contrary, the respondent ultimately (after many requests) received a medical report from his GP in September 2019, which stated that he was unfit for work from May 6th to October 25th, 2019. He was sent to the company doctor on numerous occasions to establish his fitness for work and to facilitate his return to work.

The respondent does not have any control over the medical diagnoses made by an independent occupational health specialist and cannot be held responsible for them.

It is clear from theabove that the complainant's dismissal resulted from his own conduct and that the respondent had serious concerns about the complainant's conduct over a prolonged period of time.

The respondent gave him many chances to remedy his conduct issues, but they continued. The complainant was provided with an opportunity to explain his behaviour but was unable to do so. There was medical opinion that it was likely that his conduct issues would continue

An employer is permitted to terminate an employee's employment for unacceptable levels of absenteeism (which was among the numerous behavioural and conduct issues which resulted in the complainant's dismissal). Redmond on Dismissal Law, referring to the case of Flood v Bus Átha Cliath UD 91/1993. notes that:

"Even if there are genuine reasons or explanations for absences there is a band of reasonableness which an employer can invoke to justify dismissal: an employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for his absences are genuine."

In circumstances where the complainant was guilty of serious misconduct over a prolonged period with no prospect of the misconduct ceasing, the respondent's decision to terminate the complainant's employment amounted to a fair dismissal in accordance with section 6(4) of the UD Acts.

While he has not raised any concerns in his complaint form that he was not afforded fair procedures in the conduct of the disciplinary process, which ultimately resulted in his dismissal, full and fair procedures were afforded to the complainant throughout the disciplinary process.

The disciplinary outcome letter sets out in writing the respondent's reasons for the decision to dismiss and the complainant was given a right to appeal.

It is respectfully submitted that the respondent's decision to terminate the complainant's employment was reasonable and proportionate in the circumstances. The respondent afforded him opportunities to correct his behaviour and conduct, and he received numerous warnings for similar misconduct previously (and there was no real prospect, based on medical evidence, that the complainants conduct would improve.

The complainant alleges that he was discriminated against by the respondent contrary to the provisions of the EEA. CA-00034771-004 – The Equality Claim Specifically, the complainant alleges that he was discriminated against by reason of his disability and religion.

He further states that the respondent treated him unlawfully by failing to give him reasonable accommodation for his disability.

On the Complaint Form the most recent date of discrimination is stated as January 29th, 2020, i.e., the date on which he was dismissed by the respondent. However, he did not provide any details of the alleged discriminatory act, or of any contravention of the Pensions Act.

He makes the following allegations in relation to the Equality Claim.

He was initially happy in his role and received great support from the respondent. However, this changed with the appointment of a new supervisor, who, he says, "knew nothing about [his] disability" and ignored the fact that he could not read or write properly.

He made a complaint that an investigator failed to investigate his complaint properly or interview relevant witnesses and that he failed "to get to the root" of his problems or identify a breach of procedures with respect to suicidal employees.

In response to the above allegations, the respondent says that the complainant’s supervisor was not aware of the complainant's alleged disability (which he accepts), it cannot hold true (that he discriminated against him on the basis of that disability.

The complainant's complaint was fully and interviewed all relevant witnesses. The investigator provided him with a summary of the witness interviews that he conducted in his report. 

The complainant says that the disciplinary procedure should have been postpned until he returned to work, but as one of the main focuses of the disciplinary procedure was his absence from work and there was no reasonable prospect of him returning to work it would not be reasonable to postpone the disciplinary process.  

The respondent made all reasonable efforts to investigate complaints and to facilitate his prolonged absences from work.

In relation to the burden of proof in employment equality claims, the burden of proof is on the complainant and only switches to the respondent when a complainant can reasonably prove the primary facts on which he relies.

The complainant has failed to meet the burden of proof or establish a prima facie case of discrimination on the ground of disability as required by section 85(A) of the EEA, as he has failed to demonstrate the that he has a disability as defined under the EEA; the respondent had actual or constructive notice of his disability at the material time; or he sought the reasonable accommodations in relation to his disability which he now claims the respondent failed to provide.

The complainant has not provided any detail whatsoever in his Complaint Form to support his allegation of discrimination on the ground of disability. In fact, the complainant acknowledges in his Complaint Form that his supervisor, "knew nothing about [his] disability".

The complainant has provided no medical evidence to support his claim that he has a disability or that he sought or required reasonable accommodation, which he alleges that the respondent refused.

The complainant has not outlined any specific incidences of discrimination, nor has he demonstrated that he either suffered from a disability or, if he did, that the respondent had actual or constructive knowledge of this.

The complainant also failed to meet the burden of proof or establish a prima facie case of discrimination on the ground of religion. He does not state anywhere on the Complaint Form what his religion is or how he believes the respondent discriminated against him on the basis of his religion.

The complainant has failed to identify the basis for the Penalisation Claim and in particular what the alleged penalisation pursuant to section 27(2) of the 2005 Act is; or what act he engaged in pursuant to section 27(3) to warrant the protection of the 2005 Act.

To pursue a claim for penalisation a complainant be able to demonstrate that he took a protected act under section 27(3) of the 2005 Act and suffered detrimental treatment as a result of having taken such a protected act.

It is clear from these submissions that the complainant was fairly dismissed by the respondent for behaviour and conduct issues following a procedurally fair disciplinary process. The respondent treated the complainant with dignity and respect throughout the disciplinary process and throughout his employment, including during his periods of prolonged absence.

The complainant has failed to establish any factual basis for any of the Claims or provide sufficient detail in relation to many of the claims to enable to respondent to mount a defence. That said the complaints have been sufficiently rebutted throughout these submissions.

Summary:

The dismissal of the complainant was  procedurally and substantively fair on the basis of continued behaviour and conduct issues was reasonable and proportionate.

The complainant has failed to meet the burden of proof or establish a prima facie case with respect to the Equality Claim. He was not treated in any way less favourably than any other employee.

The complainant failed to establish any link between the alleged penalisation suffered (the dismissal) and the alleged protected act (which the respondent assumes is the complaint that the complainant made that the respondent failed to provide a safe place of work, which was fully investigate and unsubstantiated).

The complainant failed to establish what action he took which falls within the list of actions at section 74(2) of the EEA, what adverse treatment he allegedly suffered, or (iii) the link between the alleged act engaged in by him and the alleged adverse treatment suffered. He has failed to meet the burden of proof or establish a prima facie case, and the Victimisation Claim must fail.

The complainant did not make a disclosure of a relevant offence and his. the dismissal was not in any way linked to the reporting of a criminal offence to the Gardaí; therefore, he was not penalised, and the Whistleblowing Claim must fail.

The complainant says he felt bullied and de-humanised and forced out of his job by colleagues and management.  One of the colleagues had been charged for breaking and entering and theft of his property.

The complainant traces the various difficulties to 2016 and a robbery at his home in which he says some of his co-workers were involved. This was followed by harassment both at work and in his home by those involved

He sought to get moved away from the person involved in the robbery and to work in a different department because of bullying and harassment including having his tyres slashed and his car being damaged.

He was told that the move could not be facilitated over this and he suffered damage to his health with very serious consequences in 2017. His cry for help was ignored by management. 

He was told that if he wanted to make a complaint that he would have to do so in writing even they were all aware that he had a writing disability, dyslexia. He made it clear that he had difficulty reading various material

He was ignored for six months and then offered help six months later. He was bullied and de-humanised over his religious beliefs and ignored when he tried to complain about it too.

He was treated unfairly throughout his sickness and antagonised by the HR managers They picked and chose what they wanted to record out of three conversations to portray him as being unfit for work.

They ignored his own doctor’s recommendation to return to work in May 2019 and insisted that that he go to see them doctor who would not give him any clear answers.

He was incorrectly diagnosed by their occupational health doctor. They tried to take away his voice because he couldn’t write it down.

He says the warning he got was extended without him being told of this.

His complaint under the Equality Act arises from the fact that he was required to make a complaint in writing even though he was dyslexic.

He was penalised by being denied a move away from those responsible for the robbery at his home.

There were seven complaints submitted.

Two of these were made under the Industrial Relations Act.

As the provisions of the Workplace Relations (Miscellaneous Provisions) Act 2021 now require employment rights cases to have parties identified, but this provision does not extend to Industrial Relations Act cases, those complaints are addressed under separate cover and anonymised in a Recommendation under that Act.

That leaves the following complaints: CA-00034771-001undersection8oftheUnfairDismissalsAct1977–2015, CA-00034771-004undersection77oftheEmploymentEqualityAct1998(the Equality Claim), CA-00034771-005undersection28oftheSafetyHealth&WelfareatWorkAct2005((the Penalisation Claim); CA-00034771-006undersection74oftheEEA(the Victimisation Claim);and CA-00034771-007underschedule2oftheCriminalJusticeAct2011(theCJA2011)(the Whistleblowing Claim)

There was confusion about the nature of the complaint under the Unfair Dismissals Act.

It is not uncommon that a person may tick the wrong box on the complaint from and this is not always fatal but even in his evidence to the hearing the complainant insisted that it was a constructive dismissal complaint, and that he ‘had sought’ constructive dismissal arising from the fact that he did not return to the workplace after January 2019.

On the other hand, the respondent made it clear that it had dismissed him following a fair process about a year later and set out in considerable detail above the reasons for doing so and the procedures by which it went about it.

While it is true that the complainant did not attend for work after January 2019, he continued to engage with the respondent, including (eventually) submitting a medical certificate and I find that the contract of employment continued in being until it was terminated by the respondent.

The events may be summarised as follows.

The complainant was placed on a final written warning in November 2018 and in the course of the outcome meeting he made complaints against two of his managers. He initially refused to attend a meeting to discuss it (he says, on legal advice) and then eventually did so.

The respondent set up an investigation which reported the following March, and which concluded that the complaints were not well-founded. The complainant has various criticism of the conduct of the investigation, for which he did not provide any evidence.

In the meantime, he remained absent from work and told the respondent on January 24th, 2019, that he would not be returning to work, (and shortly afterwards that he had found alternative employment).

The early stages of a pattern of the complainant’s non-cooperation with the respondent are beginning to appear as he fails for the second time to attend a meeting on January 24th, 2019, to discuss his issues.

He continued to remain off work but was not submitting medical certification and in April he was told that if he did not do so, his continued employment was at risk. In May he said that his GP had certified him fit to return to work and would provide some sort of retrospective certification.

The respondent decided that it needed some independent verification of this, even though the GP certification had not been provided to the respondent.

Further, visits to the company doctor on May 14th and July 23rd repeated the assessment that the complainant was not fit to return to work.

When the complainant challenged that opinion, he was referred to a psychiatric consultant and while he did present for it, he walked out of the consultation. He also refused to allow permission for the company doctor to confer with his GP.

In September the respondent put the complainant on notice that his position was at risk if he did not comply with its requirements regarding certification and absence reporting.

The complainant provided a consultant opinion in September but while it contained a diagnosis of the complainant’s condition it was silent on whether he could return to work. He also provided medical certification of his unfitness to work between May and September.

The respondent stepped back and said it would not proceed subject to the reasonable conditions that are set out above in its submission but told the complainant that if he did not his employment would again be at risk.

He was referred again for a consultation on November 25th, and surprisingly, given all that had happened up to this stage, he again found a reason not to attend.

The respondent re-scheduled for December 2nd and asked the complainant to make available the certification he claimed to have of his fitness. He did not do so and indeed on December 18th his own GP expressed reservations about his fitness to return to work.

A final opinion was received from the company doctor on January 7th saying he had considerable reservations about the complainant’s fitness to return.

This was followed by the disciplinary process at the outset of which the complainant was reminded of what he was facing and the context of being on a final written warning.

Yet again he declined to attend the first disciplinary hearing but dd so eventually on January 22nd. Following this his employment was terminated. He appealed but this was not successful.

In its legal submissions to the hearing the respondent set out a number of authorities.

Noting that Section 6(3) of the UD Acts provides:

"In determining if a dismissal is an unfair dismissal, regard may be had…

(a)          to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal".

The respondent went on to set out the well-established position in relation to the role and jurisdiction of the Adjudicator.

In Looney and Co v LooneyUD843/1984 the EAT summarised as follows:

"It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer's position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer's actions and decisions are to be judged."

In Bigaignon v Powerteam Electrical Services LimitedUD939/2010, the EAT stated the following when considering whether a disciplinary sanction was proportionate:

"Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses".

In, O'Loinsigh v Community Technical Aid UD674/2004, the EAT clearly outlined the role of the EAT when considering whether a sanction imposed was proportionate to the underlying misconduct:

"The responsibility [of the EAT] is to consider against the facts of what a reasonable employer in the same position and circumstances at the time would have done and decided and set this up as a standard against which the employer's action and decision be judged".

Further, it was stated in Frank Shortt v Royal Liver Assurance[2009] ELR 240 that, once an employer can show that they adopted a diligent, fair, and reasonable approach to both disciplinary procedures and sanctions, it is not the role of the courts or Tribunals to conclude that the employer should have acted differently.

In Bank of Ireland v Reilly[2015] IEHC 241 the High Court highlighted that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal but caveated:

"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…"

The respondent submitted that its decision to terminate the complainant's employment was reasonable and proportionate in the circumstances and says that it afforded him numerous opportunities to correct his behaviour and conduct.

Having fully reviewed the evidence and submissions of the parties I reach the same conclusion and find that in respect of the conduct of the process there was the necessary degree of compliance with procedural fairness to render the termination fair.

Specifically, in respect of the sanction of termination  I find that it meets the test of falling within a range of reasonable sanctions.

The complainant has raised an issue about the extension of the final written warning.

On that I find that, where an employee is absent from the workplace for an extended period, the point of a warning period during which his conduct may be observed and monitored is lost. Therefore, while the extension of the period should have been notified to the complainant nothing turns on this in relation to the procedural fairness of the decision.

Indeed, the respondent showed a degree of restraint in relation to the conduct of the complainant while he was absent from the workplace, specifically regarding the repeated failure to attend various meetings set up, including at his request.

In respect of the other complaints there was a degree of vagueness and uncertainty about the complainant’s case.

Having identified the date of the termination of his employment as the last date of discrimination under the Employment Equality Act 1998 complaint, he spoke vaguely of the 2016 burglary incidents as being in some way relevant.

Not much more persuasive was his argument that the failure to provide him with reasonable accommodation in 2017 represented the penalisation of which he complains (although the respondent understood this penalisation to relate to the termination of employment). 

The respondent says in its submission that the complainant failed to establish any link between the alleged penalisation suffered (the dismissal) and the alleged protected act (which the respondent assumed was the complaint that the complainant made that the respondent failed to provide a safe place of work

In fact, the complainant stated at the hearing that what represented the penalisation was the failure to provide him with ‘a happy and comfortable environment’.

Either way he has not made out a prima facie case on this, and if it is as he submitted to the hearing then it is also out of time.

Regarding CA-00034771-006 the complainant says he was victimised for taking an action set out in section 74 of the Employment Equality Acts. 

He provided no evidence of having taken any such action or, of what adverse treatment he allegedly suffered, or the link between the alleged act engaged in by him and the alleged adverse treatment suffered.

In that respect he has again failed to meet the burden of proof or establish a prima facie case, and this complaint is not well founded.

Finally, the complainant’s explanation of the whistle blowing complaint was again vague and uncertain. There were references to damage to his car and the data breach arising from the mis-delivered communication.

What was missing however, was any evidence of a report of wrongdoing or disclosure of a relevant offence, and likewise of any connection to the termination of his employment that would constitute penalisation, as alleged. 

This complaint is not well-founded.

For the reasons set out above I find as follows.

Complaint CA-00034771-001 under section 8 of the Unfair Dismissals Act 1977– 2015 is not upheld and the dismissal was fair.

I find that Complaints CA-00034771-004 CA-00034771-005, CA-00034771-006 and CA-00034771-007 are not well-founded.

Unfair Dismissal,