Complainant

Respondent

Parties

Barry  Fitzgerald

Ground Investigations Ireland Ltd

Representatives

  In person

Marianne Byrne, Organic HRM

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-00041890-001

08/01/2021

The Complainant was employed by the Respondent as a General Operative. Employment commenced on 30th July 2018 and ended on 22nd July 2020.

The Complainant was paid a gross weekly wage of €606.12.

This complaint was received by the Workplace Relations Commission on 8th January 2021.

As per the complaint form submitted to the Workplace Relations Commission the Complainant has stated “On one of the days, the drill head and / or extension tubes became stuck at a depth of six to eight meters. Intense physical effort was required to try to free the drill”

The Respondent in reply states: On 20th May 2020 the Complainant while working as an Assistant Driller on a rotary coring rig in Athlone, trying to free drilling casing that stuck in the ground, The Complainant complained to the Drilling foreman about elbow pain/strain. He continued working thereafter on the same rig and did not need any days off. A report was made of this incident.

On Friday 5th June he was on the dynamic probe machine all day, which would be a lighter more manageable rig than the rotary rig, when after work he told the Senior Engineer in charge of the probing, that he had a pain in his elbow and it was sensitive to touch. Stephen advised him to see a doctor. He worked Monday demobilising the rotary rig.

The Complainant went to his doctor on Tuesday 9th June 2020 and told the Senior Engineer that the doctor had advised him to take the week off, but he felt he could still work favouring his right arm. Stephen told him to talk to the Director of GII, if that was what he intended. The Director received an email from the Complainant on Thursday 11th June 2020 telling him he had continued to work on with foreman on the rotary rig using his left arm for lifting, that he had an x-ray the next day and would be on site for 9 a.m.

It would not be unusual for site crew to work through niggling injuries or issues, so the Director passed on the email to the Respondent’s Health and Safety officer, to monitor the situation.

The Complainant further stated; “On Tuesday 9th June 2020 whilst on another drilling job, the pain became extreme and I visited the doctor that afternoon who arranged an x-ray appointment”

On Friday 5th June, The Complainant told Stephen McLaughlin that he had a pain in his elbow and 5 days later Tuesday 9th June he attended a doctor.

The Complainant had informed his employer that the doctor had given him an ‘unfit to attend work’ note for the period Tuesday 9th to Friday 12th June. The Complainant was told to rest the injured areas but not wanting to miss work and being worried that his employer might dismiss him, he continued to work, using his left arm as much was practically possible.

Management would like to know why the Complainant felt worried about his job. He was injured, he attended his GP, he got a Medical Certificate. The only problem here is that he decided this Medical Certificate should not be handed to his employer, this was an extremely important document and had covered his illness for the duration of time as stated. He did not observe what he was told by his GP and failed to give it to his employer. The Complainant was also in breach of the Health and Safety rules.

As per complaint form the Complainant has stated: At 8.00 am on the morning of Friday 12th June I visited hospital to be x-rayed and drove to the job site in Dublin, getting there at 9.30 am. I spoke with my employer and explained the situation.

I also asked him about reducing the weights of the drilling pipes as shorter lengths are lighter (especially with “Cable Percussion” drilling). I had previously suffered from nerve damage and numbness of my right hand and lower forearm after working with Cable Percussion. He dismissed the idea of shorter drilling pipes and told me to take time off and to get a sick note.

Management’s response to this is the standard length of the casing used for cable percussion drilling is 1.5M. The length of the lighter 110mm diameter rotary coring casings is also 1.5m, there are a few 3m lengths in stock, sometimes they are used when the borehole is very deep, but the 1.5m lengths are the standard length for this type of work.

The Complainant did not attend work on Monday 15th June 2020. The Director rang him at 11 am and got no reply. The Director then texted the Complainant at 11.30 a.m. asking the Complainant to phone him.

He phoned the Director at 16.40 and told him he didn’t ring back because he was away from the phone all day. The Director said to the Complainant that he did not show up for work this morning (Mon 15th) The Complainant said, ‘Technically that’s correct’. The Complainant said he thought Grace and Paddy understood he wouldn’t be in.

The Complainant said he told Grace he would get a Medical Certificate if the company needed it. The Director stated that of course the company needed a Medical Certificate, and he should always have a Medical Certificate if he was off work.

The Complainant said he would have a Medical Certificate tomorrow (Tuesday 16th June),The Director told him to bring it in, and texted him the next morning, Tuesday 16th to remind him.

The Complainant visited the office at 16.30 that day (16th June) with the Medical Certificate from 15th June to 20th June 2020.

The Complainant said he was told by the doctor to see a physio but hadn’t gone yet. He apologized for not informing management that he wouldn’t be in Monday 15th June, he said he had been on a date Sunday night and had too much to drink and forgot to inform his employer he would not be able to work Monday. The Director said he should follow the doctor’s advice and keep management informed at all times. Because of the circumstances, management were willing at that point to overlook this absence without permission on Monday 15th June. Also, his GP had decided to backdate the Medical Certificate to 15th June even though the Complainant did not see him until 16th June.

The Complainant stated as follows; “I returned to work on Monday 6th July and gave both doctorsnotes to Jackie (HR) but by Friday 10th July the pain had become intense again”

Management Response:

Dates the Complainant visited his GP and hospital as follows;

9th June 2020 covered to 12th June 2020

12th June 2020 visited the hospital for X ray

16th June 2020 visited his GP. Covering period 15th June to 20th June

1st July 2020 visited his GP. Covering period 22nd June to 3rd July.

The Complainant obtained an injury on 20th May 2020, he attended his GP firstly on 9th June, 21 days from date of injury.

The Complainant stated that he visited HR, on 6th July with Medical Certificates. H R does not recall being handed any Medical Certificates by the Complainant, but he did submit the Certs (both doctors notes) as he stated. First one, that was dated 9th June, which was28 days overdue. The other Medical Certificate was from 22nd June to 3rd July, which was15 days overdue. For clarification, the Medical Certificate of 22nd June was in fact written up by GP on 1st July.

On Friday 26th June 2020 the Complainant sent an email to the Director stating that he had been to see a Chiropractor and had two other appointments for Monday 29th June and Friday 3rd July 2020. The Director contacted the Complainant following this email and stated that documentation was required both the Medical Certificates and a document from the Chiropractor. Also, that he should only return when he is medically fit to do so.

The Complainant returned to work on the 6th July 2020. There had been no communication from the Complainant to management since his discussion with the director following the email of the 26th June 2020.

Despite the above and requests made by the Health & Safety Officer and another Director who asked the Complainant to produce a back to work certificate, which was not given to management. Again, on 23rd June 2020 he was sent another email from the second director.

From the 6th to 10th July The Complainant worked in the yard. He suggested lighter duties later in the week but unfortunately for a general operative such as himself the work is all physical. He was told by the Director that if he was not able to perform his duties then he should not return to work the following Monday or indeed until his injuries were 100% better. He said he was going to his physio (Chiropractor) on Monday and would let us know after that, the Director told The Complainant that the company required a Medical Certificate if he was unable to come to work.

At this stage Management were not at all happy the Complainant’s behaviour. They recognised that he had been injured back in May 2020, his reluctance to seek medical help at that point and to follow his GPs advice. Very importantly his reluctance to communicate with management and particularly with both his supervisor and the second director. His Contract of Employment which reads as follows;

Absence from Work

In the event of absence from work, you are required to contact the Company by

10.30 a.m. on the first day of absence. A Certificate from a qualified Medical Practitioner must be submitted on the third day of a continuous absence and on a weekly basis thereafter. The Company reserves the right to have you examined by its own Medical Practitioner.

Also, the company Handbook has a section on what a staff member should do in the case of being unable to attend work due to illness.

There was again no communication whatsoever from the Complainant, from the 10th July until the 22nd July, (date of final meeting) which was 13 days, and this was at managements request. Management requested the Complainant tocome to a meeting in the Director’s office on Wednesday 22nd July at 10am to clarify what was going on. During this meeting he said he didn’t know he had to provide a Medical Certificate for being out sick and pointed out that he wasn’t contacted.

The Director found this totally unacceptable as he had been told all along about producing Medical Certificates and his contract clearly states on page 2 that employees are required to contact the company by 10.30am on the first day of absence. This had been pointed out to him on numerous occasions both verbally and in writing during his previous absences, in which he did produce a Medical Certificate, as follows;

Medical Certificate 19.08.2019 to 20.08.2019

Medical Certificate 26.08.2019 – 28.08.2019

Medical Certificate 02.09.2019

The Complainant had been issued with a formal written warning for his behaviour on 12th March 2020, when he was dismissed on 22ndJuly 2020 he was still subject to this written warning for his behaviour. See extract from the Respondent’s Disciplinary Policy as follows;

Taking the Complainant’s behaviour into consideration and at this point it was Gross Misconduct, the management found themselves in a situation that the only alternative left to them was dismissal and following the Complainant’s dismissal a letter was sent to him on 31st July 2021.

IN SUMMARY

From Management’s point of view the Complainant was not listening or adhering to any management rules or policy. In trying to assist him with his injury the Complainant decided to do his own thing and ignore what he was being told. Furthermore, when questioned his reply was that he said he didn’t know he had to provide a Medical Certificate for being out sick and stated that he wasn’t contacted. Management found this statement to be quite absurd considering all that had gone between the Complainant and management since 20th May 2020. It was quite impossible to get it across to the Complainant that he was flouting the rules of the company and by his own volition thus leading himself into the situation that we find ourselves in today.

During the week beginning Monday 18th May 2020, the Complainant and a colleague were working in Athlone, Co. Westmeath. They were operating a large track mounted Rotary Drilling Rig that is used to take core samples from the ground. The work can be quite physical due to fitting and removing steel drilling equipment.

On one of the days, the drill head and / or extension tubes became stuck at a depth of six to eight meters. Intense physical effort was required to try and free the drill. After several hours it was free. The Complainant experienced pain in his shoulder / neck area, his right elbow and forearm just below the elbow but he felt it was a strain that would clear up after a few days. The pain ‘came and went' depending on work but on Tuesday 9th June 2020 whilst on another drilling job, the pain became extreme and the Complainant visited his doctor that afternoon who arranged an x-ray appointment.

The doctor issued the Complainant with an 'unfit to attend work' note for the period Tuesday 9th to Friday 12th June. He was told to rest the injured areas but not wanting to miss work and being worried that his employer might dismiss him, he continued to work, using his left arm as much as was practically possible.

At 8.00am on the morning of Friday 12th June he visited hospital to be x-rayed and drove to the job site in Dublin, getting there at 9.30am. He spoke with his employer and explained the situation. He also asked him about reducing the weights of the drilling pipes as shorter lengths are lighter (especially with "Cable Percussion" drilling). He had previously suffered from nerve damage and numbness in his right hand and lower forearm after working with Cable Percussion. The employer dismissed the idea of shorter drilling pipes and told the Complainant to take time off and to get a sick note.

On Tuesday 16th June the Complainant collected a note (unfit to work from Monday 15th to Friday 20th June) from the doctor. The pain had not subsided by Monday 22nd and was told to rest further. The Complainant returned to work on Monday 6th July and gave both doctors notes to HR. By Friday 10th July the pain had become intense again. The Complainant’s employer told him to take more time off. I suggested that I could perform non-physical duties but according to the employer this was not an option. That afternoon the employer telephoned the Complainant to say that he was not to come back to work until his injuries were 100% better.

On Tuesday 21st July the Complainant received an email from HR stating that he had been paid for his three weeks of absence, worked a week from 5th to 10th July and had been absent from Monday 13th July without submitting a Medical Certificate. A meeting had been arranged with the owner at 10.00am on Wednesday 22nd July. The Complainant attended this meeting with the company owner and the member of HR.

At this meeting the owner stated that there had been no contact or sick note from the Complainant who informed the owner that the last time they spoke (10th July), he had told me not to return to work until he was 100% better. The owner stated that "we are disappointed, but you have effectively dismissed yourself" (by not contacting him and not providing a sick note).

 The Complainant informed the owner that he was not aware of that (contact and sick note), that he had told him not to return until he was "100% better", that he had offered to do light work or office work which he (the owner) had declined and that he had not contacted the Complainant either. The owner had said that the onus was on the Complainant to contact him and that the sick note should have been dropped to him on Monday 13th July. The owner stated that the Complainant had dismissed himself and he was disappointed "but that’s it.

I have considered the verbal evidence adduced at the hearing of the complaint and considered the written submissions from both parties, I note the Respondent submitted a written submission and the Complainant provided the specific details of his complaint via the WRC complaint form.

In relation to the Respondent I note that the Statement of Terms and Conditions of Employment, signed by the Complainant on 30th July 2018 under the heading of Absence from Work reads as follows:

In the event of absence from work, you are required to contact the Company by 10.30am on the first day of absence. A certificate from a qualified Medical Practitioner must be submitted on the third day of a continuous absence and on a weekly basis thereafter. The Company reserves the right to have you examined by its own Medical Practitioner.

In another attachment there is a clause headed Sick Leave. This reads as follows:

·        Contact your manager by 9.00am on the first day of absence. This needs to be done by you and not family or friends. It is not acceptable to send text messages, voice mails or emails and please clarify your estimated period of absence.

·        When your illness exceeds two days you must obtain a medical certificate and submit this to your manager. Medical certificates should only cover a period of absence for one week or less.

·        Following a period of certified illness, on your return to work, you must meet with your manager to conduct a back to work interview and complete a return to work form. Your doctor will furnish you with a “fit to return to work” certificate.

·        Please note, if required, we may request you to attend our Occupational Health Physician at any time during your illness or incapacity.

·        The payment of salary is entirely at the discretion of the company, to be reviewed weekly. You may be entitled to illness benefit during your absence from the Department of Employment Affairs and Social Protection which you should claim directly yourself, your GP has the necessary forms, following a period of over three days sick leave.

The rules outlined above are not consistent with each other.

I also note that the Respondent relies upon a disciplinary warning issued to the Complainant on 12th March 2020. This warning reads as follows:

Further to our disciplinary meeting yesterday we wish to confirm that the unauthorised taking of company vehicles is totally unacceptable and will not be tolerated.

Whilst we note your explanation, we have no alternative but to issue you with a formal warning.

We accept your apology and assurances this will not happen again.

This letter does not identify what level of warning has been issued.

Disciplinary procedures traditionally are progressive or corrective. They provide for a series of steps, which may be chosen in that order, or some of which may be passed over, depending on the circumstances. The number of steps varies between three to five, four being the average. Typically, they are:

       I.          A verbal warning the fact of which is noted in the personnel file and usually issued in writing: the employee is told that if an infraction occurs again within a specified period, a written warning will follow.

      II.          A written warning, which is placed on the personnel file: the employee is told that if an infraction occurs again within a specified period, a second warning or more severe disciplinary action will follow. Again, the written warning is normally issued in writing to the employee.

    III.          Suspension for a period of time without pay, which is placed on the personnel file. The employee is old that if an infraction occurs again within a specified period dismissal will follow.

    IV.          Dismissal.

In the instant case the Respondent did not furnish a copy of their own disciplinary procedure. This leaves me with no alternative but to benchmark the Respondent’s action against S.I. 146 of 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Complainant received an email on 21st July inviting him to a meeting on 22nd July. There was no information regarding the purpose of the meeting and the possibility that at such meeting he could be facing the prospect of being dismissed from employment. The Complainant was not offered the option of being represented or accompanied at said meeting and finally when dismissed he was not afforded the opportunity of appealing the decision to dismiss him.

Gross misconduct has recently been described by the Workplace Relations Commission as being ‘atthe zenith of possible charges relating to a disciplinary procedure(A Security Guard Supervisor v A Security Company, ADJ – 00003427); similarly the Labour Court in a 2016 determination referred to summary dismissal as being ‘the nuclear weapon of the employers arsenal of disciplinary sanctions (Vitalie Vet v Kilsaran Concrete, Kilsaran International Limited [2016]ELR 237). The Employment Appeals Tribunal in Lennon v Bredin (M160/1978) referred to serios misconduct in the following terms:

‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe that the legislature had in mind such things as violent assault or larceny or behaviour in the same serios category.’

I have carefully considered the complaint and whilst I believe the conduct of the Complainant was unacceptable, he did breach some of the Respondent’s rules and procedures the sanction of dismissal for Gross Misconduct is disproportionate. This was not a case of Gross Misconduct.

Section 7(2) (c) of the Unfair Dismissals Act, 1977 looks at the dismissed employees’ efforts to mitigate their loss.

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. In the UK case of AG Bracey Ltd v Iles [1973] IRLR 210, Sir John Donaldson explained this duty as follows:

“The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interest of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, off course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay….”.

In the instant case the Complainant’s efforts were poor, he was unable to produce any documentation that would indicate he was actively seeking another job and when questioned he did state that he was considering a return to education.

In conclusion I have decided that the complaint as presented under section 8 of the Unfair Dismissals Act of 1977 is well founded and I now order the Respondent to pay compensation of four weeks pay, this I calculate to be approximately €2,424.48.

Payment of this compensation should be made within 42 days from the date of this decision.

In conclusion I have decided that the complaint as presented under section 8 of the Unfair Dismissals Act of 1977 is well founded and I now order the Respondent to pay compensation of four weeks’ pay, this I calculate to be approximately €2,424.48.

Payment of this compensation should be made within 42 days from the date of this decision.

Unfair Dismissal; Mitigation of loss; Fair procedures.