Complainant

Respondent

Parties

Laszlone Olcsvarine

The Grosvenor Cleaning Services Ltd

Representatives

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-00057909-001

26/07/2023

The Complainant joined the Respondent by way of TUPE transfer on the 1st of June 2018. The had taken over the contract providing services to a barracks and the Complainant was a supervisor on that site.

In February and June 2021, the Complainant raised complaints about two different staff, one was employed by the Respondent and one by a different employer. Both were investigated. In the course of a second dispute the Complainant raised a complaint against a third employee. The Respondent’s client ultimately asked the Complainant to be moved from the site. She was reassigned on the 22nd of November 2021, but the Complainant went on sick leave on the date of transfer.

The Respondent dismissed the Complainant in 10th of July 2023 after she refused requests to provide a prognosis on her return or attend occupational health assessments.  

The Complainant gave evidence under oath with the assistance of a translator.

She referred to the Respondent’s handbook and outlined her position that they cannot force her to engage with an occupational health assessment. She outlined this position clearly to them by way of email in August 2022.

She did engage with the Respondent in April 2023 however was not able to engage with them past that point. She was very sick and was hospitalised. She accepts that she did not put them on notice of this except for the sick certs from her GP which she was submitting. She believes that this was sufficient.

She did receive the invitations to a disciplinary meeting but didn’t know how to respond.

Mr Solan the Respondent’s Head of People made oral and written submissions on behalf of the Respondent.

They tried extensively to engage with the Complainant to ascertain a prognosis for her return to work. She refused to provide one via her own GP and refused to consent to attend an occupational health assessment. She had frustrated all attempts to establish a timeframe for return.

They invited her to investigation meeting and a disciplinary hearing, neither of which she attended. Dismissal was the appropriate course of action at this point. They advised the Complainant of her right of appeal which she did not avail of.  

Unfair Dismissals Act

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 b provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

Earlier Grievances

In 2021 the Complainant raised bullying complaints against her manager and a complaint was submitted by a different worker, related to that manager, against the Complainant. A solicitor’s letter was also sent on behalf of the Complainant alleging abuse by a worker not employed by the Respondent.

The Complainant in her submissions and evidence clearly wanted to focus on these matters. 

I was clear that this matter concerned an investigation into the Respondent’s decision to dismiss the Complainant and her engagement in that process and that the purpose of this hearing was not to consider Complainant’s previous grievances with the Respondent.

Facts

The Complainant went on sick leave at the end of November 2021. She produced certificates from her own GP. In February and March 2022 Mr Brian Solan, the Respondent’s Head of HR, requested that the Complainant provide a prognosis indicated when she might return to work. She did not respond.

In August 2022 the Complainant was referred to an occupational health assessment, Mr Solan outlined in an email that attendance was a contractual obligation. The Complainant did respond to this email asking for him to explain how she is contractually obligated. Mr Solan replied referring to the Respondent’s handbook which states: “We may use external occupational health specialists to assist us in supporting you back to work or helping with the right decision for the longer term.”

The Complainant responded to this arguing that this wording did not contractually oblige her to consent to engage with doctors other than her family doctor. She stated that her doctor was unable to give her a prognosis and that the request for one was unreasonable and that further requests would be treated as harassment. Mr Solan responded acknowledging her position and wishing her well.

 In April 2023 the Respondent wrote to the Complainant noting that they still had no update regarding her potential return to work and that they could not continue to hold her post indefinitely. They sent her a consent form to attend the company doctor and restated that it was a condition of her employment that she attend a company doctor when requested.

On the 12th of May 2023 they wrote to the Complainant outlining that they would proceed to investigate the Complainant for possible misconduct under two specific headings: unreasonable refusal to carry out the reasonable instructions of a manager and failure or refusal to carry out company procedures.  They rescheduled the meeting after the Complainant responded noting she had issues with her internet and availability of her translator. After the Respondent rescheduled, with a translator organised, the Complainant refused to attend the investigation meeting because of her ongoing illness.

Mr Solan replied inviting the Complainant to a disciplinary meeting where she would be investigated for possible misconduct under the same two specific headings: unreasonable refusal to carry out the reasonable instructions of a manager and failure or refusal to carry out company procedures.

The Complainant did not attend the disciplinary meeting but continued to produce further sick certs.

A letter issued from the Company on the 10th of July 2023 noting that the Complainant failed to attend the hearing and concluded as follows: You have, up to today, 10th of July 2023 not attended any meetings the company has requested you to attend. You have also failed to produce the requested GP estimated return to work or sign the Consent to Attend Occupational Health. As you have not attended any meetings with the Company and failed to produce an estimated return to work or sign the Consent to Attend Occupational Health, we have no other option but to terminate your contract with Grosvenor Services.

The Complainant was offered an appeal, but this option was not availed of.

Conclusion

The Complainant failed to engage adequately with her employer. If she was medically incapable of such engagement, rather than generally unwell and unfit to work, then the Respondent should have been provided evidence of this.  All they had were sick certificates from the Complainant’s own GP. Sick certificates cannot provide an employee with indefinite immunity from the consequences of not engaging with their employer.

The Complainant has referred to the strict wording of the Respondent’s long term absence policy. I do not agree with her interpretation that this somehow gives her the option to not attend occupational health, it states clearly that the Respondent may use occupational health specialists.

The Complainant also refers to the Respondent’s GDPR policy which does outline that she can provide or withdraw consent from third party processing of data. This does touch on a wider issue in that consent is being sought in circumstances where the Respondent says it is obliged to be given. However, I do not think a lengthy discussion of this issue would be useful. An employer is entitled to obtain their own medical advice on whether an employee can return to work and if they cannot return whether that absence is temporary or if the employee no longer has capacity to engage in the employment relationship.

In this case not only did the Complainant fail to facilitate the above request but she ceased engaging with her employer after being absent over 2 and half years and while she was subject to a live disciplinary process. There may have been some defects in that process however the Complainant was free to address them at the time and did not.

In the circumstances I am satisfied that the Respondent has established substantial grounds justifying dismissal.  

I find that the complaint is not well founded.