FULL RECOMMENDATION
PARTIES : MUSGRAVE RETAIL PARTNERS IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00023434 CA-00029952-001 Background The Complainant commenced employment with the Respondent in October 2016. He was employed as a Depot Operative. The Complainant was dismissed for serious misconduct with effect from the 5thJune 2019. Dismissal is not in dispute. Therefore, it is for the Respondent to show that in the circumstances of this case dismissal was fair. Summary of Respondent’s submission and evidence. IBEC on behalf of the Respondent submitted that on the 29thJuly 2018 the Complainant reported an accident in which he sustained injury in the workplace. The Complainant went on sick leave and was on paid sick leave until November 2018. Thereafter he went onto unpaid sick leave. Between August 2018 and January 2019, at the Respondent’s behest, the Complainant attended five appointments with Dr Eamonn King (Occupational Physician). At the appointment on the 3rdDecember 2018 Dr King reports that he encouraged the Complainant to stop using his crutch. Following a final review with the Complainant on 23rdJanuary 2019, Dr King reported no objective finding for the Complainant’s symptoms and stated that the continued use of the crutch by the Complainant was counterproductive to his recovery. Dr King certified the Complainant as fit to return to work on a rehabilitation programme and recommend a four-to-six-week programme. The Complainant attended an absence review meeting on the 29thJanuary 2019. By letter dated 1stFebruary 2019, the Complainant was informed that he had to attend a rehabilitation programme commencing on the 4thFebruary as signed off on by Dr King. The Complainant attended on the 4thwith his crutch. He was advised that it was noted that he was using his crutch despite Dr King recommending that he not use it and that in light of that, the situation would have to be reviewed. By letter of the 6thFebruary the Complainant was informed that his rehabilitation programme would commence on 7thFebruary and that he was to report to work without his crutch. On the 7thFebruary 2019, the Complainant attended for work with his crutch stating that his own doctor had advised him to use it. He also asserted that he was unfit to take part in the Rehabilitation Program. The Complainant was then invited to take part in a risk assessment on 20thFebruary 2019 using his crutch but by telephone call of the 9thFebruary 2019 he informed the Respondent that he had been advised by his own doctor not to participate. A further absence review meeting took place on the 28thFebruary 2019, where the Respondent reviewed the sequence of events to date and advised that they needed to asses the Complainant’s ability to work with a crutch. The risk assessment was scheduled for the 25thMarch 2019. The Complainant attended but refused to even try and carry out the tasks. In and around the same time the Complainant was seen by another employee in a local pub in Lucan on one occasion walking without his crutch. By letter of 18thApril 2019 the Complainant was invited to a disciplinary hearing to discuss the following allegations: Your failure to follow the reasonable instructions of your employer, where you failed to participate and engage in the risk assessment that was organised for you. Your unauthorised absence from work A statement from another member of staff confirming seeing you on the 22ndMarch 2019 in a local Pub walking without a crutch. The Complainant was advised of his right to representation and the possible outcomes from the process, being a disciplinary sanction up to and including dismissal. The Complainant attended the disciplinary hearing with his Union representative. Mr Cussen Operations Manager for the Respondent, in his evidence to the Court confirmed that he was the ‘decision maker’ in the process. He was asked to chair the disciplinary hearing. He confirmed that there was no prior investigation as it was his understanding that the Complainant was on unauthorised leave. It was his understanding that when someone is on unauthorised leave the Respondent does not hold an investigation but moves straight into the disciplinary process regardless of the circumstances. Mr Cussen stated that he received a file containing all the correspondence that had been exchanged between the Respondent and the Complainant including his medical certificates. At the disciplinary hearing Mr Cussen stated that he addressed the three issues set out in the letter inviting the Complainant to the hearing. It was his evidence that he did not know what period the allegation of unauthorised absence referred to. Mr Cussen went on to state that the Respondent believed the Complainant was fit to work, therefore, when he did not engage in what they believed was an appropriate manner with the risk assessment and rehabilitation programme he was deemed to be on authorised absence. Mr Cussen in his evidence confirmed that he did not recall seeing the report from Mr I Y Sharrif Consultant dated 4 March 2019 and that he understood that he had been given copies of all medical certificates submitted by the Complainant. Mr Cussen stated that the main reason he felt dismissal was the appropriate sanction was that he felt that the Complainant was not engaging fully with the return-to-work process and the risk assessments. Under cross examination by Mr Brittain BL, Mr Cussen confirmed that he knew prior to coming to the decision to dismiss the Complainant that he was attending an orthopaedic surgeon, as it was referenced in a letter from Ms Monaghan to the Complainant. He also accepted that at the risk assessment, the Complainant had stated that he could not do the tasks he was being asked to do. However, it was his opinion that the Complainant was not even trying to carry out the tasks. It was put to Mr Cussen that the Complainant had never said that he could not walk and that it would be his evidence that on the day in question in the pub he did have his crutch with him, but he did not use it going to the toilet. Mr Cussen stated that he understood that the medical advice in respect of the Complainant was, that he was not to use a crutch. Mr Cussen while accepting that he had medical certificates from the Complainants doctor covering the relevant period and stating that he was not fit to work, stated that he was consistently being told that the Complainant was fit to return to work. When asked to elaborate on that statement Mr Cussen stated that the Respondent had a report from Dr King on 23rdJanuary 2019 stating he could return to work. Mr Cussen stated that he was not aware of any further report from Dr King but was aware that they received medical certificates from the Complainant’s GP after January 2019. The next witness for the Respondent was Ms Monaghan who at the relevant time was the HR Officer. She reported into the HR Business Partner. Ms Monaghan stated that she attended all the absence review meetings and the disciplinary meeting. She received all the medical certificates that the Complainant submitted and arranged for him to attend Dr King Occupational Health Physician. Ms Monaghan stated that she did not recall the Complainant handing her the certificate from Mr I Y Shariff, Consultant, nor did she receive it by email. If the report had been emailed, she would have had a copy of it. Ms Monaghan confirmed that to the best of her knowledge the Complainant was covered by medical certificates from his GP for the duration of his absence up until the date he was dismissed. Ms Monaghan stated that because the Respondent had received a report from Doctor King in January 2019 stating that the Complainant was fit to return to work the Respondent did not consider any further medical certificates that he submitted from his GP. It was her evidence that when she received medical certificates from the Complainant after January 2019, she filed them and that although they had those medical certificates, he was considered by the Respondent to be on unauthorised absence. Ms Monaghan confirmed that she never informed the Complainant that they were not accepting his medical certificates or that he was considered by the Respondent to be on authorised absence, nor was it set out in the Respondent’s policies that they would do this. Ms Monaghan also confirmed that the last contact with Dr King was the 23rdJanuary 2019 and that she did not forward any medical certificates she received from the Complainant to Dr King after that date or seek advice from any medically qualified person in respect of those medial certificates. Under cross examination from Mr Brittain BL, Ms Monaghan accepted that there were two differing medical opinions but could offer no basis for why she preferred or on what basis she decided to accept the opinion of Dr King and reject the opinion of the Complainant’s GP. She stated that she personally had never been involved in a situation where there were differing medical reports but was aware that when it had occurred previously, the Respondent had sought a third opinion. Ms Monaghan could offer no explanation as to why that had not happened on this occasion. Ms Monaghan was asked if she could explain her thinking in terms of what the minutes of the disciplinary meeting recorded her saying about the medical certificates from the Complainant’s GP and to confirm whether or not she was medically qualified. Ms Monaghan confirmed that she was not medically qualified, and she could offer no explanation as to why she had commented in the course of the disciplinary hearing that the medical certificates from the Complainants GP seem to reflect what the Complainant was saying was wrong with him. Ms Monaghan could offer no explanation as to why she thought that was a relevant comment to make during his disciplinary hearing and accepted under cross examination that some of the medical certificates were detailed and contained details that it was unlikely the Complainant was familiar with prior to his doctor putting them on the medical certificate. Ms Monaghan confirmed that her role at the disciplinary hearing was HR support, and she was not involved in the decision to dismiss. IBEC submitted to the Court that it was not disputed that the advice to the Respondent from Occupational Health was that he should be assessed to return to work with reasonable accommodation over a four-to-six-week period. Because of the Complainants failure to comply with that reasonable request from the Respondent they never got past the first phase of the return to work. The Complainant had representation at the disciplinary and appeal hearing but he never raised the Shariff report or the letter from the Manager of the pub. The Shariff report is the only report that the Complainant did not email to Ms Monaghan. Mr O’ Gorman submitted that it was not credible that he handed in that report and that was the only report that they did not have. The Respondent had acted on the information it had at the time and in all the circumstances the decision to dismiss was fair. Summary of Complainant’s submission and evidence. Mr Brittain BL submitted on behalf of Complainant that he had suffered an injury while at work. He had complied with the requirements of the Respondent in terms of attending Dr King, attending on the date of the rehabilitant programme and the risk assessment. However, his doctor was clear that he was not fit for manual work and in a medical certificate dated 17thJanuary 2019, had asked the Respondent to consider office-based work which they had refused to do. He was aware that Dr King following his appointment in January 2019 had said he should not continue to use a crutch, but his own doctor advised that he should. The Complainant at all times informed the Respondent that he was acting under the instructions of his GP and Physiotherapist and provided medical certificates from his GP in support of that contention. Those medical certificates are referenced in correspondence from the Respondent, and the Respondent does not dispute that they received the medical certificates from the Complainant’s GP. The Complainant in his evidence to the Court stated that at the risk assessment he explained to the parties present that his GP and his orthopaedic surgeon had advised that he was not physically or mentally well enough to participate in the risk assessment and that he was getting a bone scan done the following week. However, the Respondent insisted on proceeding with the risk assessment. The Complainant also stated that he pointed out to them on the day, that because of his injuries he would be unable to wear the steel cap boots which are the required footwear. The Complainant’s evidence was that on the morning of the risk assessment and immediately prior to same himself and his shop steward met with Ms Monaghan and had a conversation, and after the risk assessment he gave her a copy of Mr Shariff’s report to photocopy. The Complainant stated that he was at all times submitting medical certificates and did not know that he was considered to be on unauthorised absence until he received the letter inviting him to a disciplinary hearing. In terms of his being in the local pub without his crutch on a specified date, it was his evidence that he had the crutch with him but did not use it when walking short distance like to the toilets. Under cross examination from the IBEC representative the Complainant stated that he asked the Manager of the pub for a letter confirming he had his crutch when he was in the pub when he got the invite to the disciplinary hearing. However, he could not recall why he had not submitted same to the disciplinary or appeal panel. The Complainant confirmed that he had only applied for two jobs since his dismissal and both of the applications were in 2019. In respect of the Shariff report he accepts he received it before he received the invitation to the risk assessment meeting but cannot remember why he did not send in the report either when he received it or when he received the invite to attend the risk assessment. In respect of his doctor confirming in January 2019, that he was for to return to work that was in respect of office work. He had a discussion with the Respondent about the possibility of doing office work but was told it was not possible as he was employed as a general operative. Mr Brittain BL submitted that it is not in dispute that the accident happened or that the Complainant submitted medical certificates covering his absence. Apart from the Shariff letter the Respondent had in its position a medical certificate of the 23 April 2019 which mentioned the orthopaedic report and quoted from the report. This medical certificate clearly stated that he was not fit for work and the Respondent has accepted that they had this cert at the time the decision was taken to dismiss. It was open to the Respondent to request a copy of the orthopaedic report and or send the Complainant back to be re-assessed by occupational health on foot of the medical certificates they had received. They did neither they chose to ignore his doctor’s report and rely on a report which was at that time four months old. The test for the Court to consider is whether this was the actions of a reasonable employer. The Law
6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion The following facts in this case are not in dispute; the fact of an accident occurring in the workplace in July 2018, the Complainant being referred to Occupation Health by the Respondent, the Complainant submitting medical certificates from his GP for the duration of his absence, the Occupational Health Doctor and the Complainants GP having differing views of his fitness to return to manual labour after January 2019, the fact that he was in a pub on a given date and walked without his crutch, the fact that the Respondent while accepting his medical certificates from sometime in January deemed him to be on unauthorised absence, the fact that the Respondent did not advise the Complainant that they were deeming him to be on authorised absence and the fact that this is not provided for in the Respondent’s policies. There is a dispute about whether or not the Complainant handed in a medical report from his consultant Mr Shariff dated 4thMarch 2019. In considering this issue the Courts prefers the evidence of Ms Monaghan that she was not handed the report, nor did she receive it by email. Ms Monaghan was consistent in her evidence that she did not have a formal meeting with the Complainant on the day in question nor were there any minutes or records of such a meeting. All other meetings were documented. The Complainant in his evidence gave a different version of events to that set out in his own submission and was very vague about who was present at the alleged meeting and at what point he handed over the certificate. It was accepted by both parties that in considering the issues before it, the test the Court should apply is, in coming to the decision to dismiss were fair procedures applied and “would a reasonable employer in similar circumstances have come to the decision to dismiss.” The Court based on the submissions and the evidence before it finds that fair procedures were not applied for the following reasons: The Respondent sought to rely on a medical report that was four months old rather than getting an up-to-date medical report from either Dr King or a third medically qualified person in respect of the medical certificates it had received from the Complainant’s GP in the intervening period. The Respondent deemed the Complainant to be on unauthorised absence but was unable to particularise what period of time they were referring to. The Respondent failed to inform the Complainant that after January 2019 they were not accepting medical certificates from his GP and that they were deeming him to be on an unauthorised absence. The Respondent acted contrary to their own procedures which does not contain a clause stating that they can refuse to accept medical certificates and deem a person to be on unauthorised absence. Having found as set out above that fair procedure was not applied in coming to the decision to dismiss, the Court determines that the Complainant was unfairly dismissed. The Court notes from the documentation submitted by the Complainant and his evidence to the Court that he was in receipt of disability allowance and then disability benefit from the date of his dismissal up to and including the date of the Labour Court hearing. He was also awarded a disability pension for 25% loss of function. The Court noted the Complainant’s evidence that during the same period he only applied for two jobs. The Complainant submitted a 2017 P60 to the Court which showed his annual earnings as being €27,589 or €530.56 weekly. Taking all these facts into account the Court awards four weeks salary being an amount of €2,122.24. Determination The Court determines that the appeal is well-founded and awards four weeks salary being an amount of €2,122.24. The Decision of the Adjudication Officer is set aside. The Court so determines.
NOTE |
