Complainant

Respondent

Anonymised Parties

A General Operative

A Medical Devices Company

Representatives

 A & L Goodbody

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

20/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

20/02/2020

There were seven complaints submitted in relation to this case. 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 other complaints have been addressed in a separate ADJ and this recommendation is anonymised as required.

In respect of the two claims under section 13 of the Industrial Relations Act 1969. (CA-00034771-002 and CA-00034771-003) the Complaint Form indicates that they relate to Disciplinary sanctions, up to and including dismissal; and bullying and harassment procedures.

Very scant, specific detail has been provided in relation to these complaints and they significantly overlap the issues raised in a complaint under the Unfair Dismissals Act and related issues, so the background to those cases is set out in some detail.

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

The complainant had a long record of disciplinary issues 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 these issues and was offered the right to be accompanied but he chose not to be.

The complainant's supervisor and the Human Resources Manager attended the meeting, during which there was a full discussion of the issues with the complainant.

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 between the complainant and 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.

     A meeting did take place November 29th, 2018, with an investigator at which the complainant made allegations against co-workers; and two managers who allegedly ignored the complainant when he tried to make the complaint.

     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. While those complaints were being investigated, further issues with the complainant arose. He did not returntoworkafterChristmas2018; or say that he would be absentfromwork.

The respondent sought an explanation for his absence on January 22nd, 2019, and on the 24th the complainant 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 any medical certification of his absences.

He was told that his employment would be terminated if he did not do so.

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 several weeks. The respondent was 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.

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 by way of phone call 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 to be provided to him, 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 and was informed that this was not possible at that time because the company doctor was on annual 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 supported his assertion that he was fir for work, contrary to the opinion of the company doctor, there would be no choice but to terminate his employment 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 (even though the correct address was on the letter). 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 had indicated to the respondent that 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 the appointment 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 documentation to that effect 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 likely 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. He claimed during the meeting that his actions over the previous twelve to thirteen months were a result of him being sick but that he had recovered.

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

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 and informed the decision maker that it was illegal for the respondent to keep the complainant out of work on sick leave; and that the respondent had been aware of the diagnosis referred to at the January 22nd 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 past twelve to thirteen months had been unacceptable and that his conduct during the appeal did not give her any confidence that he would demonstrate the required standard of conduct expected by the respondent if the dismissal were overturned. 

The complainant states that the reasons for the termination of his employment were, failure to follow absence reporting procedures, not agreeing to attend the respondent's 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 as alleged. The respondent was never informed by the complainant who the alleged perpetrator of the robbery above was and therefore could not facilitate his request to be moved away from him.

He was treated fairly, reasonably and with respect at all times throughout his employment and this is evidenced throughout this submission. His complaints were dealt with fairly and efficiently and the respondent at no time ignored the complainant's concerns and dealt with them   properly.

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.

The decision made by the respondent to dismiss the complainant was fair, reasonable, and proportionate, and was based on various behavioural and conduct issues, which occurred over a prolonged period. It is further submitted that the disciplinary process in which the complainant was involved, and which ultimately resulted in the decision to dismiss him, was procedurally fair and legally sound.

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.

The respondent gave him many chances toremedy his conduct issues, but they continued. The complainant was provided with anopportunity to explain his behaviour but was unable to do so.There was medical opinion that it was likely that hisconductissueswouldcontinue

An employer is permitted to terminate an employee's employment for unacceptable levels of absenteeism. 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."

Where a complainant was guilty of serious misconduct over a prolonged period with no prospect of the misconduct ceasing, the respondent's decision to terminate his 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 respondent's decision to terminate the complainant's employment was reasonable and proportionate in the circumstances. He was afforded 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.

These complaints arise were made under the Industrial Relations Act, and the facts giving rise to the complaint, mirror a series of others, specifically one under the Unfair Dismissals Act insofar as the complainant has identified his dismissal for the purposes of this complaint.

There is also a complaint in relation to how an alleged Bullying and Harassment complaint was processed.

The events may be summarised as follows.

The complainant was placed on a final written warning in November 2018 and during the outcome meeting he made complaints against two of his managers. These represent the bullying complaints.

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 the opinion, he was referred to a psychiatric consultant and while he attended, 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 conditions that are set out above in its submission but told 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 his own GP expressed reservations about his fitness to return to work on December 18th.

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

Then followed 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.

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.

I agree 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 ne 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 level of discourtesy shown in respect of his failure to attend various meetings set up, including at his request.

In respect of the reference to ‘bullying and harassment’ there was a substantial degree of vagueness and lack of evidence about the complainant’s case.

He made a complaint in October 2018, and this was fully and properly investigated. Apart from criticism of witnesses who should have been interviewed he has not established any deficit in how the investigation was conducted.

In any event under this legislation any such deficits should first have been processed through the internal grievance machinery, which the complainant did not do (although it is accepted that he was on sick leave. Nonetheless he was obliged to do so and there is no time limit on making a complaint under this legislation if such internal machinery fails to do its job.

Neither complaint is well-founded, and they are not upheld.

I do not uphold complaints -002 and 003 and they are dismissed.

Industrial Relations Act, bullying, termination