Complainant

Respondent

Parties

Slawomir  Debski

Kepak Longford Unlimited Company

Representatives

Rosemary Mallon B.L. instructed by Gerald O'Donnell Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00046481-001

01/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046481-002

01/10/2021

The complainant suffered a workplace accident on August 2nd, 2019, and was certified as unfit to resume work until January 2021.

A dispute arose between the parties regarding certification of the complainant’s fitness to return to work and in due course he resigned from his employment on August 15th, 2021.

He complains that he was the subject of a constructive unfair dismissal and penalisation.

The complainant suffered a workplace accident on August 2nd, 2019 and was certified as unfit to resume work until January 2021.

He gave evidence on affirmation.

Prior to returning to work he suffered an episode of back pain.

The respondent would not accept the medical evidence he submitted that he was fit for work, and he believes the respondent made every effort to delay and/or refuse his return to work because he commenced a personal injury claim.

He believes the respondent penalised him for taking a claim.

He felt he had no alternative but to resign his position with the respondent on August 15th, 2021, because he could not afford to be out of work.

The complainant secured immediate employment and has no losses attributable to the termination.

In respect of the penalisation complaint the complainant has not identified any act which would constitute penalisation and that the complainant has not made out a prima facie case.

The respondent set out the narrative of events and relied on undisputed documentary evidence and no witness was called.

In August 2019 the complainant had an accident and returned to work after an absence of two months.  Later that year, in December, he was absent again and said that his condition was due to the earlier accident in August. On December 17th he was told of the need to submit medical certification every two weeks.

The following March he submitted certification indicating that he was fit to return to work and on April 12th an absence management meeting was arranged for the 14th.

Some days later on April 27th the respondent sought copies of medical records and on April 30th the complainant said he would provide these but only to a medical practitioner but in the event he did not do so.

There was further correspondence in the course of which the complainant again said he would give the records to a doctor and on May 18th he agreed to forward the records to the respondent directly.

The company looked for these a week later but in his response the complainant indicated he had changed his mind and would not do so.

The company invited him to send the records to an independent occupational health doctor where he had been examined on April 30th but on May 30th 31st he again confirmed that he would not send the records and compounded this later on June 1st by saying again that he would give the records neither to the respondent nor to a medical practitioner.

On June 24th the respondent sent a detailed letter to the complainant pointing out that it had previously explained to necessity for complete copy of his medical records from both Ireland and Poland in order to facilitate his return to work but noting that he had not done so.

It specifically noted that he had not made them available to the occupational health practitioner who had examined him. The letter also pointed out that by refusing to provide his medical records and discs he was delaying his return to work.

The complainant resigned on August 15th stating as a basis for doing so that the company had failed to facilitate his return to work after his injury in August 2019.

In summary the complainant was given every opportunity to comply with the respondent’s sick absence policy and had been given the grievance machinery procedure and the company handbook.

It is entirely reasonable for the respondent to satisfy itself that a person who has experienced injury or illness is fit to return to work.

Specifically in this case given the nature of the complainant’s illness it could not accept a simple certificate from a general practitioner and required further confirmation of the complainant’s health status and fitness to return to work.

Further the complainant has not met any of the tests for complaint of constructive unfair dismissal in that he has failed to avail of any of the internal workplace grievance machinery set out in various decisions such as Conway v Ulster Bank and therefore his decision to resign does not meet the requirements for a constructive dismissal.

Indeed, as is clear from this all evidence of the complainant resigned to take up immediate employment elsewhere.

The narrative of events is well set out in summary in the respondent’s submission and was not in dispute in any material way. 

It was well supported by correspondence and documentation between the parties.

The dispute revolves around the complainant’s refusal to comply with the respondent’s specific requests for certification as to his fitness to return to work.

As can be seen from the thread of documents at one stage he agreed to provide the material, at least to a medical practitioner, but in due course to supply it the respondent HR department and then, for some reasons that was not explained, he changed his mind and decided not to supply it to either.

It is hard to understand what the complainant hoped to achieve by his stubborn and long running resistance to his employer’s entirely reasonable requests.

I find that the respondent acted reasonably throughout all this time, and indeed showed a degree of forbearance towards the complainant.

In commenting on the complainant’s actions, I need go no further than say that he demonstrated very poor insight into his own best interests.  If he was confident that he was, in fact, fit to return to work, knowing the only obstacle to doing so was complying with the reasonable requirements of his employer, then he should have cooperated with the reasonable requests from his employer.  

Specifically on his complaint of constructive unfair dismissal, the requirements are every clear.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.  It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act arises when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment?

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this case the complainant made no effort of any sort to process a grievance and it was clear from his evidence that on finding another job he resigned from his employment with the respondent.

This comes nowhere close to grounding a case of constructive unfair dismissal and his complaint does not succeed.

Regarding the complaint of penalisation, the complainant stated on the complaint form that he believed he had been penalised for ‘taking a claim’ without specifying the nature of that claim.

Immediately before this on the WRC complaint form he says he believed;

 ‘the Respondent made every effort to delay and/or refuse my return to work because I commenced a personal injury claim’

and it seems reasonable to assume that the complainant was linking these two statements.

However, his actual complaint of penalisation was made under Section 28 of the Safety, Health and Welfare at Work Act, 2005, but as there was no evidence of any complaint having been made under that statute, there can be no basis for a complaint of penalisation and indeed no act of retaliation was specified either.

Accordingly, his complaint of penalisation is not well-founded.

For the reasons set out above in relation complaint CA-00046481-001 is not well-founded and in relation to CA-0004648-002 there was no unfair dismissal.

Unfair Dismissal, Penalisation