Complainant

Respondent

Anonymised Parties

Prison Officer

The State

Representatives

  Complainant

Aislinn O’Donnell BL instructed by CSSO

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-00041611-001

18/12/2020

This case is concerned with a dismissal in circumstances where the Complainant was certified unfit for work for a period approaching five years before his employment was terminated. Disciplinary proceedings against the Complainant were placed on hold and a process of investigating alleged bullying which he raised did not go into the internal process during that same period.

The Complainant has not worked in the intervening period and is in receipt of state disability benefit having exhausted his normal employment related sick leave entitlements in October 2015.

The Complainant commenced employment on 2008 and his absence for the purposes of this case commenced on 14 September 2015. He was dismissed with pay in lieu of notice on 6 May 2020 effective June 19th, 2020. As the complaints were received by the WRC on December 18th, 2020, no issue arises regarding time limits.

Submission

On behalf of the Respondent it was submitted that this was not a case of unfair dismissal. The Complaint had a long absence on sick leave before he was dismissed. In 2015 the Complainant was to be the subject of disciplinary proceedings on the basis as outlined to the hearing. On the day of the proposed disciplinary hearing, the Complainant went sick. On 4 October 2015 the Complainant was removed from the payroll as he had exhausted his sick leave entitlement. The Respondent made numerous efforts to engage with the Complainant to see if it would be possible to return him to work. The Complainant was also referred to the CMO for regular checks on his fitness to return to work. These commenced in November 2015 and continued until 30 April 2019. At all times the CMO reported that the Complainant was not fit for work and that his workplace issues needed to be addressed. Humphries v Westwood Fitness Club [2004] ELR 296 was cited regarding the obligation of the employer to obtain a full understanding of the medical condition at issue.

The Respondent had tried unsuccessfully to engage with the Complainants workplace issues, however the Complainant failed utterly to engage in any meaningful way to resolve his own workplace issues. Section 6 (1) of the Unfair Dismissals Act was cited as rendering the dismissal not unfair as there were substantial grounds to justify that dismissal.

A copy of the report detailing the Complainants work history including his absenteeism record together with a chronology of the efforts made to engage with the Complainant attached to the submission to the DG recommending dismissal were provided with the documentation as was correspondence from solicitors representing the Complainant. The Complainant was given repeated opportunities to set out and explain his position. The correspondence from the solicitor contained a number of unsubstantiated claims, did not reflect the true position and failed to account for the Complainants lack of engagement and was not a meaningful or proper attempt to address why the Respondent would not proceed with the dismissal.

Witness Evidence -Mr S

Mr S gave evidence of being asked by the Complainants Union to become involved in the management of the Complainants case. The purpose of the engagement was to try to assist the Complainant in getting back to work. He first wrote to the Complainant in March 2017 and suggested various meetings involving others including named managers and the union representative.

In November 2017 Mr S wrote to the CMO advising that he had tried to arrange a meeting and seeking a return-to-work date. He wrote to the Complainant again on 26 July 2018 and eventually a meeting was arranged to be attended only by the Complainant and Mr S. He described where the meeting took place, and that the Complainant became quite emotional and was upset. Mr S gained some insight into the background. They had a discussion about the DAW mechanisms if a complaint of bullying was to be investigated and that it must be in writing. During his evidence he agreed that he left the meeting on the basis that the Complainant said he had given a complaint in writing to a named prison manager. This was described as a half page written document which he later confirmed to the Complainant was not on the file when he went to inquire about it. This was confirmed to the Complainant in an email on 24 September when he advised that there was a recollection of the Complainant making a verbal report about some work issues but that nothing was ever submitted in writing. In that correspondence he asked the Complainant to put a list of issues in writing. There was no response, so he followed up by phone calls and emails. He acknowledged that the Complainant was very upset when an email 3 December 2018 was interpreted by the Complainant as him not returning calls. Mr S apologised in a later email and again referenced any complaint that he may have previously submitted in writing. There were further emails in February and March 2019 also seeking a written statement. At no stage did the Complainant submit any complaint in writing to him. The request to meet with the DG was refused as inappropriate because the DG would be involved in any disciplinary process. The witness moved into another role and the matter was then taken up by other staff named in correspondence. At the hearing he clarified that he was not the decision maker within the prison service on the reports leading to the actual dismissal.

Further Documentation Post Hearing from the Respondent

The disciplinary procedure S.I. 289/1996 was provided in response to the request following the abandoned hearing for a copy of the Disciplinary Procedure which applied to the Complainant. That policy appeared to suggest that a prison officer could only be removed from office by the Government. At the hearing, the Respondent undertook to clarify the situation and subsequently provided S.I. 438 2009 which provided for the delegation of authority to the Secretary General to decide on a dismissal. That response together with the details of earnings also provided by the Respondent on request post hearing were sent to the Complainant for any comments on the figures or the S.I. 438 -none were received by the closing date of August 2nd

All witness evidence was taken under oath or affirmation unless otherwise stated.

The Complainant said he was bullied in the prison service and that he did make complaints. When he met Witness S, he explained the situation. He had explained about a named manager and other complaints. At that stage he was out sick for two years-and he became quite upset at the meeting. There was a suggestion that he should transfer where he would be paid less. He referred to needing a solicitor if things were going formal. The medical reports said that he had to be heard-his issues needed to be addressed. At no stage at the meeting with witness S did he agree to provide a statement of a complaint of bullying, and he was very surprised to see that in the later correspondence about his dismissal. In December 2018 when he received an email from Witness S saying that he had made calls to the Complainant-he got very angry as he was not avoiding any calls. The CMO had written to say he would meet with Witness S. The Complainant did not want others involved and he had a difficulty making a written statement as there were huge issues of trust because of what had happened to him. It was not true that a disciplinary meeting was arranged for September 14th, 2015, with a named union official to be in attendance-that official was not in the prison that day. His union had advised him to go sick. Afterwards relations with his union became strained. He wanted them to arrange a safe place for him to return to work. The CMO suggested a temporary transfer, but he was told that he had to go back to work to apply. When he started to get correspondence about his dismissal, he engaged a solicitor and followed their advice about how to reply. The solicitor had asked for a meeting with the DG but this was refused. The solicitor asked for agreement to appoint a person to investigate his complaints with agreed terms of reference and then he would put in a complaint. Referring to the final report of the CMO where she had indicated that he would contact Witness S again to arrange another meeting, if he had done so, he could not recall if he had.

Section 6 of the Unfair Dismissals Act provides that an Adjudication officer shall have regard to issues around procedural matters. In this case the extent of the procedural failings on the part of the Respondent are such that they dominate the case to be considered.

The dismissal policy provided at my request deals with allegations of misconduct within the Prison Service including a range of specified offences. That policy provides for charges, oral hearings, representation and an appeal process all of which are laid out in great detail. Given that the Complainant was not dismissed on grounds of misconduct that policy would not appear to apply to his circumstances. What is important in the circumstances of this case is that it is clear that the management of the Prison Service are central to decision making in situations of alleged misconduct i.e. the line management function. And that the prison officer is entitled to notice of charges, oral hearings, representation and an appeal process all in set out in detail.

Allowing that the authority to dismiss a prison officer was delegated to Secretary General or equivalent by S.I. 438 of 2009, that part of the disciplinary procedure which refers to recommendations to dismiss states: ‘The procedures for such dismissal shall be those which apply to Civil Servants generally.’ When the policy of the Civil Service Disciplinary Policy of 2016 is examined, that too provides for an extensive set of procedural guidelines for all manner of disciplinary situation up to and including dismissal. That policy also provides for a charge, meetings, representation, an appeal process, and the involvement of direct line management.

When the Complainant sought a meeting with the Director General of the Prison Service his application was refused but no alternative was offered- simply rejected. The sole method preferred by the Respondent was a paper exercise.

HR function administration staff conducted the entire process from 2019 until 2020 remotely and without any effort at meeting and hearing the Complainant or indeed exploring an alternative short of dismissal. They provided the paperwork at all stages.  The DG and the Secretary General approved their reports without question. No appeal process or hearer was offered at any stage.

On 30 April 2019, the CMO advised that the Complainant had expressed his intention to contact Witness S again. The next communication from HR to the Complainant on 17 May 2019 announced out of the blue and without any prior indication whatsoever of a potential or actual disciplinary process, that a decision was already made at that stage to dismiss the Complainant unless he could provide reasons in writing why such a course of action should not be taken. At all times in their own correspondence those managers who handled the file after Mr. S maintained that the Complainant had agreed with Mr. S at their meeting in September 2018 that he would provide a statement in writing regarding his case. The trail of correspondence is supportive of the Complainants evidence and that of Mr. S under oath that the Complainant made no such commitment at that meeting. He was advised of the procedures at that meeting but the undertaking was that of Mr. S to follow up on claims by the Complainant that he had previously committed to writing a short document of complaint to a named senior manager. There were indeed follow up communications from Mr S as late as 1 March 2019-a one line email ‘CanI enquire again if you are going to submit something in writing?’

Before that email -12 February ‘I note you have not submitted a written complaint or a list of issues you feel need to be progressed in order to return to duty in cc

Can I enquire whether you intend to submit one?’

The email which preceded these-sent in December 2018 suggested that Mr S was still trying to locate the short written statement of complaint the Complainant said he had provided to a senior manager ‘Would you have submitted the complaint to anyone else?’.

There is no trail of clear coherent communications with the Complainant regarding his situation or his employment relationship or the consequences of not following a definite and clear path prior to notifying of the intent to dismiss unless he could provide reasons for not doing so and then his responses were themselves dismissed out of hand as were his requests for a meeting with the DG. 

In terms of consideration for his situation, no interest in the Complainant was expressed by anyone in authority other than the CMO until the Complainant was absent for two years. And no medical report was sought between the letter of May 2019 effectively announcing a dismissal was under active consideration and the date of dismissal in June 2020-a period of a year. The inaction of the Respondent in relation to the Complainants up to date medical condition and specifically where there were identified work related issues and a year later consideration of dismissal was now active does not meet the tests set by Humphries v Westwood Fitness Club, the very case the Respondent seeks to rely on.For a period of a full year and when the circumstances surrounding the Complainant had altered to one of termination and it must be said he had not engaged for a few months with a formal process, the Respondent had not made any effort to establish a full understanding of the medical condition in those circumstances.

Finally in terms of the procedural concerns in this case, the internal decision maker who recommended dismissal provided a report not only in relation to the matters put to the Complainant in writing concerning his fitness for work and the workplace issues but also an entire profile of his records of attendance and other performance related issues from the commencement of his employment in 2009 including adverse comments on his probation report. That report was entirely skewed against the Complainant and contained adverse information not notified to him in advance and unrelated to the case for dismissal put to him in 2019 and 2020. An extraordinary breach of fair procedures, enough to taint the entire process, if any more colour was required at that stage.

The submission for the Respondent cites the test expressed by an Adjudication Officer in  Hibner v Joelles Dressmaking ADJ  29369 as follows:

‘The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantially nor procedurally fair.’

Regarding the procedural aspects of the Respondents case, I think it was fairly clear at the hearing that I viewed the procedures followed by the Respondent in this case askance- in terms of disapproval. Lest there was any doubt regarding that disapproval- the manner in which the dismissal of the Complainant was processed contained hardly a screed of fair or adequate procedures, whether judged against those that apply to a prison officer charged with gross misconduct or the civil service procedures or S.I. 146 of 1990 which is referenced in the civil service procedure. In summary the manner in which the Complainants case was handled over a five year period leading  to his dismissal fails every test of fair procedures.

Notwithstanding the fundamental unfairness of the handling of the case and the procedures followed by the Respondent I am obliged to apply the test of reasonableness to the decision to dismiss in terms of substantial grounds. To be frank it is very difficult to apply the reasonableness test or find substantial grounds in a case where the extent of the procedural flaws is found to be so great that it includes not speaking or offering to speak with the employee at any stage during the disciplinary process. The adjudication officer is not required to substitute how they might have handled a particular case or what alternatives could have been considered or even what job the Complainant was capable of performing from either a medical or any other perspective. And since none of these specifics were discussed with the Complainant from at least 2019 to 2020, how can a distant external viewpoint determine whether dismissal was the only available option when the Respondent did not explore any alternative or his employment relations or his medical condition  with him in 2019 or 2020. Where one wonders were his line mangers throughout the five year period or during the disciplinary procedure.

At one point the Respondent wanted him to return to the place which the CMO advised was the source of his ill health-before they could consider relocating him away from that situation. The only possible conclusion is that the Respondent fails the reasonableness test because they failed so dramatically in examining anything other than making the Complainant almost entirely responsible for his own health and then dismissed him for failing that responsibility through the use of extremely flawed procedures and dismissing his point of view out of hand in 2019 and 2020. Being out sick for an extended period does not automatically render a person incapable of doing a job. In arriving at his conclusion, I am mindful that there was a gap of a year in the medical reports and that there is no clear sight of what job and where the Complainant was being asked to do in 2019 or 2020 that made dismissal the only available option. The Complainant may have become something of an open file-but the entire financial burden of the situation was borne by him from October 2015 onwards.

What is also to be considered in terms of the reasonableness test in this case is the Complainants contribution to the decision of the Respondent to proceed with a dismissal. Certainly, the Complainant did not help his own cause in many ways. The timing of his illness to coincide with the day when, as far as prison management are concerned, he was to attend a disciplinary hearing together with his failure to provide a statement of grievance or complaint in writing when formally invited to do so in 2019; combined with his conditions for either a transfer or a change of role and then seeking an investigation without having submitted a complaint all progressively weakened his position in the eyes of management. At the hearing he could only explain that there was an underlying issue of trust. However, it could not remain the situation forever where he was in a self-imposed limbo with the CMO urging engagement with his work-related issues and he declining or delaying a process towards finding a resolution to those issues either formally or informally which at some point also had to include dealing with the disciplinary charges. Acknowledging that the Complainant was visibly upset and emotional about his situation at the hearing and that he has not been deemed fit to work anywhere since his dismissal is to recognise that his situation has impacted greatly on the Complainant. But it is also recognised that while their responses were inadequate, this became a difficult situation for management to handle. The Complainant either did not or could not assist but the result was the same-a lengthy absence with no sign of a way forward in any meaningful sense. Telling management to establish an investigation into a complaint not committed to writing against people who have not been identified when being threatened with dismissal is not a step towards a solution. There was a tendency on the part of the Complainant to blame all other parties for his predicament, but he also had a responsibility-primarily to himself- to work with Mr. S, as the one person who reached out to him to break the impasse, to find a way back to work. However an employer cannot simply abdicate their responsibility to engage in management just because it is difficult and pass virtually all of the responsibility to the Complainant, as they did in this case, with the exception to the extent that Mr. S engaged with the matter on the record, for a period.

The poor procedural practices followed in this case are such that they have undermined the Respondents defences whether based on reasonableness or fairness or incapability. The dismissal of the Complainant is found to be unfair.

Redress

UNFAIR DISMISSALS ACT 1977

REVISED

Updated to 29 July 2021

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where —

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

This case provides something of a dilemma regarding the appropriate form of redress having regard to the terms of Section 7 of the Act of 1977.

At the hearing the three available options were explained to the parties and they had an opportunity towards the end of the hearing to consider their position regarding their preferred options.

The Complainant explained that he continues to be unwell and in receipt of disability benefit from the Department of Social Protection. He has been unable to seek work. He expressed a preference to work-in a safe environment and he said he understood there were management changes at the prison where he was working until 2015.

Very unusually, the Respondent stated that they could accept re-instatement provided the Complainant would then co-operate with the disciplinary process which was halted in September 2015. This would leave the matter of the allegation of bullying to be pursued (or not) by the Complainant.

It may seem obvious therefore to regard the position of the Respondent as the one which should be selected as the appropriate form of redress. Having reflected on this question of redress at some length, it is my view that it is not appropriate in this case, primarily because it is of no value to the Complainant that he should be returned to the same conditions of employment as existed at the time of the dismissal in June 2021. At that time he was on unpaid sick leave and so there would be no income from his employer. He has not been certified to work in any employment; there is no certainty as to where he would be working even if he were fit to do so; he is to face a disciplinary charge which could conceivably result in him being dismissed; all the while with no income from the Respondent. A potential lose lose for the Complainant.

Many of the same issues arise under the option of re-engagement. Terms could be imposed on the Respondent such as placing the Complainant on administrative leave pending an agreed transfer but here again the disciplinary process is to be completed, details of such a transfer are unknown and, crucially there is no indication that the Complainant would be fit to return to work in any location offered to him.

Under either option there is the matter of the Complainants concerns about his workplace which were identified as causing a barrier to his return to fitness. His own references to the need for a safe place to work and a lack of trust leave this aspect still live as factor without closure on the part of the Complainant.

In consideration of the difficulties imposed in arriving at a workable and reasonable form of redress, I am of the view that given the lengthy absence, the unfinished business of a disciplinary nature which would remain and above all the Complainants continuing unfitness for work of any kind, that compensation is the only feasible and appropriate form of redress in this case.

Here again the option is not straightforward. The Complainants ongoing illness mean that his loss in terms of the maximum financial estimate of lost income is confined to four weeks gross pay as his unfitness for work counts against him as he was neither earning or available for work at the time of his dismissal.

On July 25th, 2022, the Respondent provided figures for annual earnings by the Complainant amounting to €59146.14 inclusive of allowances. This gives a weekly gross of €1137.42 and as I have decided to allow this amount in full the amount for four weeks gross pay is €4549.68. In addition to this amount, I am also allowing an amount for loss of superannuation. This was a position is the public service with guaranteed pension accrual for any remaining years and the Complainant is in his early fifties. This was a specialised post and the possibility of him regaining such a position or such a pension scheme are effectively nought and he is entitled to have such losses taken into account. As provided for under Section 7(3) of the Act under the definition of financial loss an amount of €10000 is decided is awarded in respect of the loss of superannuation. This latter amount does not compensate for the full loss of those entitlements which are difficult to estimate in any event but does take into account the contribution of the Complainant to the dismissal.

The total amount of compensation to be paid to the Complainant is €14550.

CA-00041611 The complaint of unfair dismissal is well-founded. The Respondent is to pay the Complainant the sum of €14550 compensation for that unfair dismissal.

Unfair dismissal-disability based competency.