Cases
O’Donoghue v Emerson Electric (Ireland) Ltd
[UD 177/1986]:
EAT
“We are satisfied that the respondent, far from giving the claimant any clear warning or proper opportunity to improve the performance of the Irish plant to the satisfaction of the American management, did not express its dissatisfaction to him in clear terms. Isolated, passing comments on some details cannot be construed as warnings, or indeed expressions of dissatisfaction especially against a background of sometimes fulsome praise.”
Employer v Employee
UD964/2011
EAT
The claimant was employed as a butcher with the respondent company from 13th May 2002. In 2004 the claimant began to feel pain in his back but continued to work 2006 when he had to attend a physiotherapist. In September 2007 he ceased work due to his on-going pain.
In March 2008 he returned to work but again had to cease in June 2008 because of his pain. In 2009 he tried to return to work but after one day he could not continue and again was on sick leave.
In October 2010 he was certified to return to work and did so on 26th October 2010. During the day he complained of back pain. His pain was so intense he collapsed. An ambulance was called for him.
On 1st November 2010 the Site Manger wrote to the claimant in his native Portuguese. It stated that due to his large period of absence and his unavailability to work they found he had
frustrated his contract and dismissed him.
….
Determination:
..
In the circumstances the Tribunal fully accepts that he claimant knew or ought to have known that the respondent was looking at frustration of contract as an inevitable consequence of the unavailability of the claimant for employment by reason of physical ill-health.
In considering the evidence the Tribunal has to be mindful of the fact that the claimant was unavailable for work in excess of two full years prior to the 26th October 2010. The Tribunal must also have regard for the fact that this workplace does not have much requirement for non-physical jobs. Meat processing is physically very demanding and even the lightest of jobs was proving beyond the claimants physical capabilities.
On 1st November 2010 the claimant was formally notified of the respondent’s intention to terminate his employment with immediate effect, on the grounds of frustration of contract. The Tribunal accepts that the letter of termination may have been blunt but could not have been completely unexpected for the claimant in light of the previous communications and the meeting held on the 1st November.
The Tribunal notes that the letter of termination included a right of appeal which was not availed of. The claimant’s evidence as to why this was not availed of was not satisfactory or coherent. The claimant is claiming that termination of his employment in the manner outlined amounts to an unfair dismissal as the decision made was made prematurely and without consideration being given to alterative arrangements.
The respondent urges the Tribunal to accept that the contract was terminated by the operation of law as the contract had become inoperable. The respondent had behaved prudently and reasonable in all the circumstances. In the alternative the Tribunal has been invited to determine that the claimant can no longer perform the function he has been engaged to perform as per Section 6 (4) a of the Unfair Dismissals Act 1977.
In considering all the evidence the Tribunal is perfectly satisfied that the contract of employment was frustrated and had become inoperable. In such circumstances the Unfair Dismissals legislation has no application. Notice was not given in the letter of the 1st November and the claimant was entitled to be given statutory notice. However the Tribunal cannot direct payment should be paid in lieu when the claimant was out on certified sick leave at the time”.
Employer v Employer
UD919/11
EAT
“The claimant was the principal and also taught in the school. While the claimant was out on administrative leave in late 2010 the vice principal took over her class. The Board asked the vice principal to write a report on each child. The claimant was unhappy with the report. It was the claimant’s view that the content and tone of the report displayed a complete lack of respect towards the claimant. The claimant felt that the vice principal was trying to undermine her position as principal and the claimant had lost all faith in her. The report put into question the claimant’s competence, professionalism and commitment to the school’s method of education and she utterly rejected what she believed to be the vice principal’s defamatory and offensive comments. The claimant felt duty bound to inform the Board of her position in this regard. She wrote to the Board on 26th January 2011 with her views. She also gave a copy of this letter to the vice principal on 28th January 2011 and advised her to reflect on her position over the weekend. She emailed TC, Chairperson of the Board and informed him of her discussion with the vice principal. The vice principal met with TC following her receipt of the claimant’s letter.
The claimant was invited to attend a disciplinary hearing and this took place on 22nd February 2011. RD together with Board member, KH and the respondent’s solicitor attended the disciplinary hearing with the claimant and her solicitor. The purpose of the meeting was todiscuss the claimant’s actions/ behaviour towards the vice principal. The claimant had writtento the Board insisting that the vice principal be removed from the school and also copied theletter to the vice principal.
…….RD chaired the disciplinary hearing. The claimant stated that she did not actually insist on the vice principal’s removal from the school but that she be removed from her post as vice principal, not actually from her teaching post just as a matter of clarification. Consequently,this was accepted. The claimant had made a recommendation to the Board in light of the vice principal’s action in writing a report on the claimant’s class while she was on administrative leave in December 2010. It was the claimant’s view that the content and tone of the report displayed a complete lack of respect towards the claimant. The claimant felt that the vice principal was trying to undermine her position as principal and the claimant had lost all faith in her. The claimant felt duty bound to inform the Board of her position in this regard.
The claimant proposed that the Board ask LO to become acting vice principal in the interim.
RD thought it was awful and disgraceful behaviour of the claimant that she had handed the vice principal a copy of the letter the claimant had previously given to the Board. She contended that the claimant had behaved against the school ethos. The claimant contended that she was willing to enter a process of reconciliation.
A performance improvement weekly plan was initiated for the claimant. RD and TC met with the claimant at the first meeting.
By letter dated 1st March 2011 the Board considered the claimant’s actions in requesting the Board to remove the vice principal from her position as an extremely serious matter. The Board found the behaviour in handing a copy of the letter of 26th January 2011 to the vice principal and asking her to consider doing the honourable thing and step down as serious misconduct and for which termination of the claimant’s employment was warranted. Previous disciplinarymatters and warnings on the claimant’s file did not play any part on the decision to dismiss theclaimant from her employment.
The claimant was afforded a right to appeal the decision to dismiss her within seven days of this letter. She did not appeal that decision.
Claimant’s Case:
….The claimant was handed a performance review plan and she attended one meeting regarding this plan. The claimant sought to have an independent facilitator to help resolve matters and suggested M. She furnished M with background information. M in turn contacted the Board.
The claimant was again suspended for alleged breach of data protection. Subsequently, as she had lost all trust in the Vice Principal she asked her to step down from her post. She handed her letter to her to this effect. She also wrote to the Board. The claimant was happy that the Vice Principal remain on as a teacher in the school.
The claimant attended a disciplinary meeting on 22nd February 2011 together with her solicitor. RD chaired that meeting. Also in attendance were KH and the respondent’s solicitor. A stenographer was present and recorded the minutes of that meeting. The claimant said that she did not insist on the Vice Principal’s removal from the school but clearly requested she beremoved from her post as vice principal and not from her teaching post. This was accepted. She believed that the Vice Principal had lost all credibility by writing such a report while theclaimant was absent on administrative leave and she felt duty bound to inform the Board of herposition in this regard. She felt the Vice Principal had completely undermined her position asPrincipal. The claimant saw no point in questioning the Vice Principal at the disciplinarymeeting. Her relationship with the Vice Principal had broken
down because of the Board’sprocedures. The claimant really wanted to reconcile with the Vice Principal but this was notpossible.
The claimant was dismissed from her employment on 3rd March 2011.
Following legal advice the claimant chose not appeal the decision to dismiss her. She had no faith in the appeals process.
Following the claimant’s termination of employment, he claimant secured a fixed term contract in November 2011. She has since been working on fixed term contracts but at a lower salary.
Determination:
The Tribunal carefully considered the evidence adduced and submissions furnished and in particular the matters that led to the claimant’s dismissal.
The Tribunal finds that the procedures used by the respondent were unsatisfactory. While the claimant was not compelled to invoke the appeal process the Tribunal finds that it would have been helpful.”
Employer v Employer
UD2413/2009
EAT
“Determination:
This was a lengthy and difficult case which was dealt with by the legal representatives with the highest level of professionalism. The Tribunal heard the oral evidence of a number of witnesses and both sides submitted documentary evidence. After having carefully considered all of the evidence before it, the Tribunal has unanimously determined that the claimant was unfairly dismissed.
It is common case that the claimant, in her role as secretary, was responsible for the receipt and lodgement of monies received by the school. It is accepted by the Tribunal that while the claimant was away in Australia, the respondent discovered discrepancies in the way in which school monies were being accounted for. It is also accepted that, as a result of these discrepancies, an investigation, including an audit, was carried out. The result of this audit was that there was a shortfall of approximately €12,000.00 of school monies. As a result of this investigation, the auditor raised a number of queries. The Tribunal accepts that the respondent had legitimate questions to ask of the claimant. However, the Tribunal does not accept that the respondent was entitled to single out the claimant in the course of its investigations as there were other parties who also had access to the monies. It also difficult to get a true impression of the extent of the shortfall and/or the reason for the shortfall of monies as the accounting procedures adopted by all members of staff were routinely very slack.
As a matter of law, the Tribunal when considering whether, or not, the particular action or inaction of an employee justifies a dismissal will have regard to the reasonableness of
The employer’s decision to dismiss. In deciding whether, or not, the dismissal was unfair we apply a test of reasonableness to 1. The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and 2. The conclusion arrived at by the respondent that, on the basis of the information, resulting from such enquiry, the claimant should be dismissed.
In this particular case, the quality and extent of the respondent’s investigation was highly questionable in circumstances, where the accounting practices in place were very relaxed, certain other persons had access to the monies and one individual, namely, the principal was given too much responsibility for the conduct of the enquiry and the instigation of the disciplinary procedure. However, that is not the end of the matter as the claimant herself as some responsibility to bear. The claimant received advice that she should not attend a disciplinary meeting unless she was first reinstated. Her refusal to engage with the process effectively backed the respondent into a corner. If the facts of this case were different, this failure to engage would have entitled the respondent to dismiss her as it would have had little alternative. However, it is a unique feature of this case that the initial contact between the respondent and the claimant’s family was handled poorly and it is also a feature of this case that the enquiry itself was flawed to such an extent that it would be unjust to hold that her failure to engage remedies the deficiencies on the respondent’s part. In those circumstances, thedecision to dismiss, based as it was on a flawed enquiry could not be said to be within therange of reasonable responses open to the employer.
The Tribunal determines that compensation, and not reinstatement, be the most appropriate remedy in this case. Accordingly, having regard to all the circumstances, the Tribunal awards the claimant the sum of €9,850.00.
FULL RECOMMENDATION
UD/16/74
DETERMINATIONNO.UDD1637
ADJ-00001402 CA-00001956-001
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
NOONAN SERVICES GROUP LIMITED v EK
DETERMINATION:
The Complaint
This is an appeal by Ms Elvira K against a decision of Noonan Services Group Ltd to terminate her employment by way of dismissal with effect from 25 September 2015. The Complainant submitted a complaint to the Workplace Relations Commission alleging that she had been unfairly dismissed from her employment contrary to section 6 of the Unfair Dismissals Act 1977 – 2015. The Adjudication Officer decided on 5 July 2016 that the dismissal was not unfair within the meaning of the Act. The Complainant appealed against that decision to this Court. The appeal came on for hearing before the Court on 6 December 2016.
Background
The Respondent is a well-established company that provides third party services to its clients including contract cleaning services. The Complainant worked for the Respondent as a contract cleaner for some 15 years.
In 2007 the complainant first raised health issues with her employer. In 2013 the Respondent became concerned about the Complainant’s ability to perform her duties. It referred her to its occupational medical advisors. The doctor advised the Respondent that
“While this condition does not categorically render Elvira medical unfit for any of her current work duties she is convinced that her ongoing work is aggravating her symptoms. I feel it is reasonable for Elvira to consider a number of options including either to retire from her current position and source alternative work or to take a period of time off work to attend for treatment (eg Physiotherapy etc.) … with a view to considering less physically demanding work and/or part-time working hours in the future. It is likely that if Elvira continues to perform (moderate-heavy) physically demanding work her symptoms will continue to progress and cause her further discomfort and/or restriction in her daily activities and/or impairment in her quality of life”.
Following this report the Respondent wrote to the Complainant on 2 October 2013 in the following terms
“…..I must advise you that as the Company’s Occupational Doctor has advised that you are not unfit for work then it is expected that you complete your full job specification during your rostered shifts.”
The Complainant experienced difficulties undertaking her duties and this led to meetings with the Company in October, November and December 2013. In July 2014 the Complainant was given notice that her duties would change. She resisted the reassignment and this led to further correspondence from the Respondent on 29 August 2014. It stated in relevant part
“I wish to advise that following our referral to Dr McDermott in September 2013, he confirmed that your condition had not rendered you unfit to complete your duties as a Cleaning Operative and therefore you were advised that you were required to carry out all of your duties as per your job specification.
….therefore it is not appropriate for you to refuse to carry out duties as this is not a fitness issue; …”
On 30 April the Complainant submitted a note from her doctor that stated
“The patient should not do heavy physical work, maintain a forced posture for a long period of time or do work involving rapid body position changes”
The Complainant continued to experience difficulties at work. In April 2015 the Respondent again referred the Complainant to its medical advisors for assessment. He issued his report on 7 May 2015. He stated set out his findings and went on to say
“Ultimately I have encouraged Elvira to discuss her future work options in alliance with her treating medical Practitioners. I think it is clear that she is (at best) partially fit for the demanding tasks of a Cleaner in a Pharmaceutical Facility and she would benefit from a change of work and/or work environment. I plan to liaise with Elvira’s GP as I feel it would be beneficial for her to consider a referral to a Specialist in Ireland (as she seems to plan to live here in the longer term). I would be happy to discuss at any time.”
The Complainant then wrote on 21 July 2015 seeking retirement terms.
A further meeting with the Company took place on 23 July 2015 to discuss the medical report above.
After that meeting the Complainant wrote again seeking retirement terms.
The Respondent invited the Complainant to a meeting to
“discuss how we move forward given the difficulties you have in completing a number of duties in relation to your role, given your health complications.”
That meeting took place on 28 September 2015. In the course of that meeting the Respondent decided to dismiss the Complainant from her employment.
The Complainant appealed against that decision through an internal appeals process. That appeal was unsuccessful.
The Complainant alleges that her dismissal was unfair within the meaning of the Acts.
The Law
Section six of the Act in relevant part states
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.
(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(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,
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) Where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal.
The Respondent submits that the Complainant’s dismissal arose out of her incapacity to undertake the duties for which she was employed.
In that regard the Court heard evidence from Mr David Casey the Company executive who took the decision to dismiss the Complainant.
He told the Court that he reviewed the medical file on the Complainant and formed the view that she was increasingly incapable of undertaking the work for which she was employed. He said that he was further informed that she had been assigned lighter duties following her referral to the Company’s medical advisors in 2013. He said that though his advice was that the Complainant was not unfit for work she was not capable of undertaking the full range of duties for which she was employed and had been accommodated with lighter duties. However he said he was advised by his local supervisors that she was increasing incapable of undertaking even these duties.
He said that in the course of the meeting it became clear that the complainant wished to retire on ill health grounds but was seeking a monetary settlement in order to do so. He said that he decided that he would accommodate that by dismissing the Complainant and paying her the statutory notice entitlement of 8 weeks pay in ease of her desire to retire.
He said that before that meeting he had no intention of dismissing the Complainant. He said that the idea to dismiss her occurred to him in the course of the meeting and that he acted on it. He said that he did not notify the Complainant before the meeting that her employment was at risk. He said that he did not put the proposition to her that he intended to dismiss her. He said that he did not offer her an opportunity to reflect on that intention or to take advice on the matter or to make representations before a decision was made.
He told the Court that he made his decision on the basis of the medical evidence before him and on the basis of his advice from his local management.
Findings of the Court
The Court finds that the medical evidence available to the Respondent stated
“… I think it is clear that she is (at best) partially fit for the demanding tasks of a Cleaner in a Pharmaceutical Facility and she would benefit from a change of work and/or work environment. I plan to liaise with Elvira’s GP as I feel it would be beneficial for her to consider a referral to a Specialist in Ireland (as she seems to plan to live here in the longer term). I would be happy to discuss at any time.”
The Court finds that the Respondent did not contact the doctor to discuss the Complainant’s condition. Neither did it notify the Complainant that her continued employment was at risk arising out of her growing incapacity to undertake the duties of the position for which she was employed.
The Court finds that the medical advice clearly states that the complainant is partially fit for the demanding tasks of a Cleaner. The Respondent took no steps to establish the extent of that capacity, the tasks she could undertake and those she could not or advise her to consult her own medical advisors in that regard.
The Court accordingly finds that the purported medical evidence on which the Respondent relied did not support its conclusions. The Court further finds that the procedure adopted by the Respondent in dealing with the Complainant was fatally flawed in that it did not afford her procedural fairness or natural justice in the manner in which it was administered. Accordingly the Court finds that the Respondent had no basis for deciding that the Complainant was unfit to perform her duties. In addition the Court finds that the procedure adopted in this case amount to an infringement of the Complainant’s rights to fair procedures and natural justice in the processing of this matter.
Accordingly the Court finds that the dismissal was not justified on either substantive or procedural grounds and was accordingly unfair.
The Complainant told the Court that she was unemployed for the period from end of September 2015 until July 2016, a period of approximately 40 weeks. During this period she says that she sought work and undertook courses to increase her preparedness for the labour market, however no evidence of job applications/interviews was provided to the Court. Thereafter she was certified unfit for work, has been claiming social welfare Disability Benefit since July 2016 and was unlikely to be able to undertake paid employment for the foreseeable future.
Accordingly the Court finds that an award of €8,160, which amounts to 20 weeks’ pay, is appropriate in this case having regard to all of the particular circumstances of this case.
Determination
The Court determines that the dismissal was unfair and upholds the appeal. The Court orders the respondent to pay the complainant compensation in the sum of €8,160 in full and final settlement of this case.
The decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
8 December 2016______________________
LSDeputy Chairman
DEC-E2016-131
EMPLOYMENT EQUALITY ACTS 1998-2015
A Sales Representative v A Books Wholesaler
File reference: EE/2013/652
Date of issue: 20th September 2016
Keywords: Employment Equality Acts, Disability, Depression, Discriminatory Dismissal, Failure to provide reasonable accommodation
Dispute
1.1 The case concerns a claim by a Sales Representative against a Books Wholesale company. His claim is that he was discriminatorily dismissed on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 – 2011 [hereinafter referred to as ‘the Acts’]. He also claims that the respondent failed to provide appropriate measures that would allow him to continue to be employed by them. It is the policy of the Equality Tribunal (now Workplace Relations Commission) to anonymise decisions in the case of disability unless specifically requested by the complainant otherwise.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 16th December 2013. On 13th October 2015 in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 5th February 2016 as required by Section 79(1) of the Acts. Correspondence continued after the hearing.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant had previously worked as a Sales Representative with the main (wholesale & otherwise) bookseller in Ireland for 30 years until December 2012. His salary there before being part of a group redundancy was €80,000. He commenced employment with the respondent as a Regional Account Manager on 2nd April 2013. His salary was £30,000 (sterling) per annum and a car allowance of £5000 plus mileage. He was also provided with a company mobile phone and laptop.
2.2 The complainant took sick leave on 13th May 2013 for one week i.e. he returned to work on 20th May 2013. He provided a medical certificate stating that he was suffering from stress. On Monday 13th May 2013 he attended hospital but the Consultant did not think that he was so unwell that he should be admitted. Instead he prescribed Zyban (Bupropion) to the complainant– an anti-depressant. He sent a text to Ms G (his line manager) to say that he was feeling unwell and had attended hospital. She rang him to see how he was and he said he would be back at work on Monday. The following day Ms S (the Personnel Manager) phoned the complainant to discuss his absence from work. The complainant explained that he was distressed as his wife had recently been diagnosed with cancer (he had also mentioned his wife’s diagnosis at the interview for the position) and he was processing being made redundant from his previous employer of 30 years. The complainant submits that she specifically asked what medication that he was on. He thought it was a strange question for an employer to ask. However, he replied Zyban. Ms S asked him to email her with the medication that he was on for their records. The complainant believes this to be intrusive but he felt obliged to do so. The complainant submits that by the respondent’s own actions they were on notice that he was going through a depressive episode from 17th May 2013.
2.3 The complainant completed a sickness self-certification form on 20th May 2013. No occupational health assessment was conducted by the respondent.
2.4 The complainant worked for the next few weeks without incident. He took no more sick leave. In June 2013 the complainant went on holidays within Ireland. On 11th June he misplaced his laptop. He carried out an extensive search for it. On 18th June he informed the respondent that he lost it. He also reported it missing to the local Garda station the following day. The complainant submits that it is the first time that he lost a phone or laptop (personal or otherwise) in his life. He also points out that the laptop required a password to access any company data.
2.5 That day 19th June Mr E (Sales Director) rang the complainant to state that he wanted to discuss concerns that he had. It was not identified to the complainant at any stage that the call was a disciplinary hearing or that the issue with the laptop was so serious as to lead to disciplinary action or the loss of his employment.
2.6 The complainant phoned Mr E. He was quite surprised that Ms S was also present on the call as he thought it was to discuss sales targets. It was only at that point that he was asked if wanted anybody to accompany him during the call. He was not at home so there was nobody there that could sit in with him. Nor was he aware that his position was in jeopardy.
2.7 The complainant submits that the call completely ambushed him. Mr E outlined his concerns and gave the complainant a very limited opportunity to respond. At the end of the conversation, Mr E terminated the complainant’s employment. That day a letter was sent from the respondent stating they were terminating his employment due to him ‘proving unsuccessful within the probationary period’. The letter informed the complainant that he had five working days from receipt of the letter to appeal the decision. The complainant was not provided with the notes of the telephone conversation.
2.8 The complainant appealed it and he was informed that the appeal haring had been arranged for 17th July 2013. The complainant asked that it take place after 19th July as his wife had cancer treatment up until then and in fairness the respondent agreed. By mutual consent, it was agreed that it would be done over Skype.
2.9 The hearing was due to be done over Skype with Mr M (Buying Director) on 14th August 2013. However Mr M was ill so it had to be postponed. In an email to Mr M the complainant said ‘I also want to make you aware that following my conversation with [Personnel Manager] enquiring how I was when I was out sick from 13th to the 17th May that the company’s attitude towards me changed on learning that I was suffering from stress.’ At no stage in the process did the respondent take any steps to obtain the factors of the complainant’s disability and the effect it may have had on him.
2.10 On 27th August Mr M wrote to complainant stating his appeal was unsuccessful.
2.11 The complainant submits that there was a complete lack of fair procedures in effecting his termination of employment. He submits that is supposed misconduct was a sham reason to cloak the real impetus of the termination of employment which was the respondent was becoming aware that the complainant had a depressive illness. He points out that he was dismissed a month after they became aware that he had a disability.
2.12 In direct evidence, the complainant stated that he had previously been diagnosed with reactive depression e.g. after his father died in 1998 and when his mother was diagnosed with Alzheimer’s disease in 2003. He never required hospitalisation. He has attended counselling in the past which he has found very helpful. He submits that his condition has never adversely affected his working life.
2.13 The complainant maintains that while he was initially devastated by his dismissal, he was determined not to allow it to knock him completely. He enrolled in a Springboard food technology course and as a result of that, he is working as a business development manager in that sector. He submits that Sales is his calling and he is delighted to be back working in it again.
2.14 He was not notified of any problems or improvement required in his performance or duties prior to the disciplinary phone call on 20th June. That the complainant had no previous issues with performance or conduct, according to himself), highlights that the respondent has no real or genuine basis to terminate his employment. He argues they simply used the losing a one-off case of genuine misplacement of a laptop, which can happen anybody, as a false reason for the dismissal. The complainant cites Mr O v A Named Company[1] and Rattigan v Connacht God Co-operative Society[2] where the complainant was also on probation when he was dismissed after the respondent became aware that had a depressive episode. Also cited was a Government Department v A Worker[3] where the Labour Court recognised depressive illness as a disability within the meaning of the Acts. The complainant also referred to Ms B v A Newsagents and Deli[4] where the Equality Officer states “Disability must be looked at ‘in the round’. It cannot be reduced to a game of bingo where a complainant’s doctor labels a condition on the medical certificate in a certain way and the disability provisions [of the Acts] automatically apply and s(he) calls it something else and disability provisions do not apply.”
2.15 The complainant also cites a case under the Industrial Relations Acts where the Labour Court held that ‘the dismissal of the employee was unfair. The employer’s decision not to adhere to either its own disciplinary procedures or be bound by the provision of the Code of Practice on Grievance and Disciplinary procedures (SI No 146 of 2000) because he was on probation was misconceived’[5].
2.16 The complainant respondent made no attempt to follow the test in A Health and Fitness Club v A Worker[6] as regards whether they could reasonably accommodate the complainant.
Summary of the respondent’s case
3.1 The respondent is the largest wholesaler of books in Europe.
3.2 The complainant approached the respondent in March 2013. At that time the respondent did not employ anyone in Ireland. That territory was covered by the UK-based Sales team. However, impressed by the complainant’s long experience in the wholesale book trade (as well as his network of contacts), Mr E (Sales Director) interviewed him and offered him a position. Mr E stated in direct evidence that the complainant did not declare his disability at the interview. Mr E admits that the complainant did say that his wife had been diagnosed with cancer but that it would not affect his work. The respondent does not conduct pre-employment medicals.
3.3 On 2nd and 3rd April 2013 the complainant came to the respondent’s Head Office in the UK and received full induction training. He spent some time on the road with a regional manager. The complainant received an email containing the respondent’s employee handbook. However, the email with the handbook attached was never opened by the complainant. The complainant never signed his contract of employment.
3.4 The complainant’s line manager was Ms G. He was required to send a visit schedule to her at the start of the week and a sales report at the end of the week. Ms G gave direct evidence to say that she was not happy with the limited information that he had provided in his schedules. He would merely give the towns that he intended calling to rather than the names of the specific shops. The respondent submits that at no time did the complainant complete a sales report in the format they requested. This was despite that having been discussed at induction and a further face-to-face meeting on 22nd/23rd April as well as by email. The respondent also states that the complainant had great difficulty with the expense forms and despite much assistance from Ms G he never mastered these.
3.5 The complainant apparently went off sick on Monday 13th May 2013. The respondent’s handbook clearly sets out the absence reporting procedure. It is standard for most organisations i.e. the complainant should have contacted his line manager on the morning that he was not reporting for work. Ms G tried to contact him and it was only on 16th May 2013 that she received a text saying that he was ill.
3.6 The following day Ms S (the personnel Manager) phoned the complainant to conducts a welfare conversation. He confirmed that he was suffering from stress and anxiety but the issues were not related to working for the respondent and that he would be returning to work on Monday 20th May 2013. It is correct that Ms S asked the complainant about the medication that he had bee prescribed. The respondent submits that she did this as part of the ongoing duty of care that all employers have to their staff. The complainant used his car in the course of his work and he received a car allowance for that. In direct evidence she states that she merely wanted to establish that the medication would not affect his driving. She stated that in the UK employers are no longer allowed to ask employees to fill out disability questionnaires so this is a good way of finding out whether an employee has a disability. She said it is very useful in the warehouse, for example, to know whether somebody has epilepsy.
3.7 The complainant did text his line manager to say that he would be back at work on Monday. However, as per company procedures he should have telephoned his Line Manager on Monday morning.
3.8 Matters came to a head on or about 17th June 2013. The complainant reported to the respondent that he had lost the company laptop that he had been provided with. The complainant did not report the loss promptly. The respondent submits that it contained sensitive commercial information. The value of it was £509 (plus VAT) sterling.
3.9 Mr E decided this was the final straw. The respondent submitted a letter dated 17th June inviting the complainant to a call to discuss concerns. However, the respondent submits it sent it by ordinary post. According to the notes provided by the respondent of the phone conversation the reasons for the dismissal were that the complainant had not signed his contract, his late reporting of the loss of the laptop, his failure to notify the respondent that he was not taking sick leave, his failure to email Ms S with the name of the medication that he was taking, not replying to emails and voicemails from Ms G, that his voicemail message has not been changed to say that he is back at work after holidays and the quality and tardiness of his sales reports as well as not contacting the Regional Account Manager who previously covered Ireland. The note records that the complainant started crying during the phone conversation and that he said he was depressed.
3.10 The respondent submits that no reasonable employer would have concluded from the available evidence than the complainant was disabled. The respondent submits that the reason they did not conduct a return-to-work meeting with the complainant as per procedures as Ms S had a welfare conversation with him on 17th May. The respondent argues that it was entitled to terminate the employment of the complainant if the required standards of performance are not met. They submit that he was not treated any differently than an other employee if s(he) was not meeting their standards.
3.11 The respondent submits that the performance issues predated the complainant’s sick leave. The complainant did not request reasonable accomodation. He was offered and received an appeal.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was discriminatorily dismissed and whether the respondent failed to provide reasonable accommodation in order to enable him to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 Before I consider the law as it applies, I must make a few findings of facts as there was significant disagreement between the parties over the evidence. First of all the complainant would be the first to admit that attention to detail was not his strong point. The respondent submitted the complainant’s CV as evidence. He had merely applied for the position using an old CV with handwritten updates. The respondent took him on anyway. He clearly was a good salesperson to have reached a salary of €80,000 with his previous employer. The complainant gave evidence that his previous employer placed a lot of trust in him and was less concerned about paperwork than the respondent. The complainant argued that he increased sales for the respondent in his short time working there. The respondent did not refute this. Despite the employer’s focus on performance issues as the reason for the termination of the complainant’s employment, there was no complaint from a customer nor was there any evidence of his core functions (i.e. generating sales) not performed. That said, the complainant should have made a greater effort to adjust to the culture of his new employer. The fact he was the only employee based in Ireland he should have understood the need of the company to know his whereabouts during the working day and their requirement for fulsome sales reports.
4.4 Regarding the complainant’s week of sick leave, of course he should have notified the respondent on the first day. However, his reactive depression had recurred. He felt so unwell that he asked to be admitted to the psychiatric unit of his local hospital. While the treating Consultant Psychiatrist did not think that he needed to be admitted, in these circumstances it is easy to see how the complainant forgot to notify his employer. It bears repeating that his wife was receiving treatment for cancer so notifying her husband’s employer was not be foremost on her mind either. As a new employee, I would not have been surprised had the complainant lied or minimised his condition (especially when there is such a stigma about mental ill-health) but the complainant told the Personnel Manager the full truth that his stress and anxiety were symptoms of his reactive depression. From then on, I accept the complainant’s contention that he was branded by the respondent as a problematic employee.
4.5 I am also troubled by the Personnel Manager’s request to know exactly what medication that the complainant was taking. To me, this request is an invasion of his privacy. I do not accept her excuse that she wanted to check that whatever drug he was on would not affect him driving as part of his work. To follow this justification to its logical conclusion, if from her internet research Bupropionwas contra-indicated with driving a vehicle, what would she have done? Forbid the complainant from using his own car to drive to appointments? Contact the psychiatrist in a different jurisdiction and inform him that he had got his prescription wrong? However, in this case her request for what he had been prescribed assists the complainant. The respondent cannot deny that it was on notice that the complainant was being treated for depression once he informed her of this.
4.6 I accept the respondent’s evidence that they did not actually receive his doctor’s certificate and the written confirmation of his medication until after he was dismissed. The complainant gave evidence that it was sitting in his drafts folder in email and he merely forgot to send it. However, it is clear from the documentary and direct evidence from both parties that the respondent was orally informed of the complainant’s reactive depression and the medication he had been prescribed on May 17th.
4.7 As an example of how the attitude changed once he informed the respondent of his diagnosis, his line manager made a drama about him not working in 3rd June (Irish bank holiday). The complainant pointed out that a skeleton staff would only be working in bookshops on a bank holiday and a Sales Rep is the last person that they would want to see. He pointed out that he had worked the previous Monday (27th May) which was a bank holiday in the UK and no comment had been made about that at the time even though it was included in his sales report.
4.8 Regarding the loss of the laptop, it should not have happened. Apart from the monetary value, it did contain commercial data. However, a sense of perspective must be maintained. It did not contain classified information. The respondent did not go to the expense of encrypting the data although the laptop was password-protected. The complainant was on holidays when he realised that he mislaid it. It is understandable that he waited to check whether it was in his own home or the holiday home before reporting it as lost. The respondent freely admits that this was the final straw. I cannot escape the conclusion that had the complainant not declared his psychiatric illness a month earlier, he would have been given a second chance.
4.9 The respondent submits that it sent a letter by ordinary post on 17th June inviting the complainant to a disciplinary meeting on 20th June. However, the complainant gave evidence that he never received it. All other correspondence was by email and phone. It does not align with the other evidence given by the respondent e.g. the following day the following day the Personnel Manager emailed the Sales Director and the complainant’s manager stating ‘Let me know if you want me to write to him with regard to the HR issues’. This is surprising if she had written to him the previous day. No response from either of the recipients was submitted to me. The following day (19th June) the Sales Director sent the complainant an email ‘I would like you to telephone me in the office at 3:00pm tomorrow which is 20th June as I would like to have formal discussions with you with regard to concerns I have’. Again if it existed why did he not refer to Ms S’s letter? I am satisfied that the supposed letter was never sent and was retrospectively drafted to ‘fix’ the file to make it appear that fair procedures were applied. Falsifying evidence does not assist the respondent’s case.
4.10 The respondent drove a coach and horses through fair procedures. The complainant was not warned that his job was in jeopardy, he was not provided with the notes of the meeting, he was not offered an opportunity for somebody to accompany him nor was he given an adequate opportunity to give his side of the story. Fair procedures must apply to dismissals occurring in probation also. Regarding the issues brought up apart from what is discussed in Paragraphs 4.3 to 4.8, the complainant gave evidence that once corrected on naming the bookshops rather than just the towns which contained the shops, he endeavoured to fill the forms out as requested. He admits that he wanted to get his contract checked out by a solicitor and that is why he had not signed it. However, he was not reminded of this by the respondent. The complainant agrees he struggled with the expense forms as they were in sterling. He points out that the respondent’s administration was not perfect either as he never received a payslip which is a breach of the Payment of Wages Act 1991. Regarding the other Sales Rep. that he was to contact, Ireland was previously this person’s territory. Therefore he was hostile to the complainant’s efforts at contact. Therefore apart from the failing to inform of the sick leave on time and the loss of the laptop, they were relatively minor issues. A written warning would have been a more reasonable response by the respondent especially when they were on notice of his disability within the meaning of the Acts. Instead the complainant was dismissed by phone and a letter issued that day reiterating the position. This falls short of even the respondent’s procedures in its handbook (page 8 of the respondent’s employment handbook). While the appeal was more considered it occurred two months after the complainant left employment so it was highly unlikely that they were going to take him back at that stage. Therefore, it was little more than a tickbox exercise.
The Law
4.11 I am satisfied that depression is a disability within the meaning of Section 4 of the Acts:
‘‘disability’’ means—
(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s
body,
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
malfunction, or
(e) a condition, illness or disease which affects a person’s
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;
As well as the determination cited by the complainant, the Labour Court acknowledged depression as a disability in Stobart (Ireland) Ltd v Richard Beashal.[7]
4.11 I have already stated that the respondent was on notice that the complainant had a psychiatric illness month before the respondent dismissed him. While the respondent stated that his sick leave played no part in the complainant’s dismissal, the evidence does not support that. While the complainant did not get off to a good start in his employment with the respondent, I am satisfied that he would not have been dismissed immediately after losing a company laptop if had given less information about why he took sick leave. While it may not have been the only reason, I am satisfied that his disability was a significant contributory factor in his dismissal. In this I am guided by the Labour Court in A Government Department and An Employee: “The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).”[8] Therefore I am satisfied that the complainant has established a prima facie case of discrimination on the grounds of disability and the respondent has failed to rebut it.
Reasonable accommodation
4.13 An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ‘‘appropriate
measures’’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s
business, and
(iii) the possibility of obtaining public funding or other
assistance.
4.14 The complainant cites the case of A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis]
4.15 While the respondent did not use the phrase dismissal for incapacity, in reality that is what is was. The respondent did not inform the complainant that his dismissal was being considered, it did not seek a report from his own doctor nor send him to an Occupational Health Specialist even though they were aware that he had a psychiatric illness. No consideration whatsoever was made as to accommodations could be provided – for example, his probation could have been extended. The provisions in these Acts are not dissimilar to the UK Equality Act 2010 as they emanate from the same EU Directives. If the respondent had followed the provisions of the UK Act, they would have been able to defend this case better. I am satisfied that the respondent failed to provide appropriate measures that would enable the complainant to remain in their employ.
4.16 In considering redress, I must be cognisant of a number of factors. The complainant was not the perfect employee which may or may not be connected to his disability. However, a month after declaring he suffered from depression, he was dismissed for a relatively minor misdemeanour. Limited adherence to fair procedures applied. There is a particular stigma about psychiatric conditions in the workplace and regrettably the complainant was punished by the respondent for revealing the true nature of his condition.
Decision
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminatorily dismissed the complainant on the ground of disability
(ii) the respondent hasfailed to provide appropriate measures that would allow the complainant to continue to be employed by them
Therefore, I find for the complainant.
5.2 In accordance with Section 82 of the Act, I order the respondent:
pay the complainant €18,000 (the approximate equivalent of six months of salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_______________
Orlaith Mannion
Adjudication Officer/Equality Officer
Footnotes
[1] Equality Tribunal Decision DEC-E2003-052
[2] Equality Tribunal Decision DEC-2008-026
[3] Labour Court EDA084
[4] Equality Tribunal Decision DEC-2013-149
[5] Labour Court Recommendation AD115
[6] Labour Court Determination No. EED037
[7] Labour Court Determination No. EDA1411
UD2147/2011, MN2174/2011
EMPLOYMENT APPEALS TRIBUNAL
RB v Google Ireland Limited
The determination of the Tribunal was as follows:-
From early 2000 the claimant was employed by a company (DC) but in the spring of 2008 DC was bought by the respondent. With DC the claimant had obtained many promotions and had moved to Ireland from the United States. She had been managing sixteen people across four countries and had reached the level of ‘Publisher Supporter Manager’. Following the acquisition of DC by the respondent the claimant’s employment continued. Level 6 Manager was her entry point with the respondent.
It was alleged that the respondent set unrealistic timeframes and unachievable goals for the claimant and that circumstances beyond her control led to adverse reports which were then used against her as a factor to end her employment. The claimant’s performance was unnecessarily examined over a protracted time without due allowance for the realities of her working circumstances such as the decrease in her reporting team from fourteen to eight. Also, the claimant had been blamed for delays in assigning successful applicants to posts and in connection with an enlarged workload resulting from the illness and death of a colleague (PL). Further, there had been management scrutiny after the imposition of extra reporting obligations.
The illness and death of the abovementioned PL added to the claimant’s work. Because she was the only manager at the same level in Ireland she took charge of PL’s team as well as her own.
A new role (Head of Publisher Services) was created as an extra level of management between the claimant’s post (Publisher Support Manager) and that of her then boss (Head of Client Services). The claimant was then put on PEP (Performance Expectation Plan) within a month to assess her performance over the course of thirty days. The claimant now had extra reporting duties needing global co-operation between various departments. Due to time zone and other differences this took longer than initially anticipated.
The claimant did not fully pass the PEP test because the expected timeframe was exceeded even though she had complied with all but five per cent of it. She was told in December 2010 that she would be assessed on a more exacting PIP (Performance Improvement Plan) for 90 days. In March 2011 this was extended for a further 60 days but she was subsequently told that she had failed and her employment was ended.
It was alleged that there had been unfairness and a lack of transparency as to how the claimant’s performance was assessed in that management personnel who did not have direct dealing with her could adversely affect her score.
The respondent’s position was that it had paid the claimant in lieu of her six weeks’ notice entitlement such that there could be no valid minimum notice claim and that she had been fairly dismissed for lack of competence for work of the type which she had been employed to do.
It was contended that the claimant’s performance review for the fourth quarter of 2009 had been unsatisfactory and that, after the respondent had conducted several performance reviews in 2010, it had been found that the claimant had not performed to an acceptable standard.
At the end of January 2010 the claimant received the result of a performance review. During February 2010 the claimant and her manager were away from the office a lot due to business travel. From March 2010 to May 2010 the claimant was absent a lot on bereavement leave. Consequently, the respondent deferred starting a performance improvement procedure with the claimant.
The respondent began a short-term PEP (performance expectation plan) at the end of July 2010 in a bid to aid the claimant to ameliorate her performance after the claimant had not succeeded in performing to the respondent’s satisfaction. This plan detailed specific areas where the claimant’s performance had come up short and what the claimant needed to do to bring about the necessary performance improvement. For July 2010 and August 2010 the PEP was due to run but it was extended to 8 September 2010. Within this period meetings were held between the claimant and her manager by way of weekly review and feedback to provide the claimant with coaching and back-up towards the needed amelioration in her performance.
By 8 September 2010 the required pick-up in performance had not been achieved by the claimant. A decision to extend the review period was taken by the respondent. However, the improvement targets set for her in July 2010 had still not been achieved by her in early November 2010.
On 29 November 2010 a disciplinary hearing was held because the claimant had not succeeded in meeting the respondent’s improvement targets. The respondent entrusted the conduct of the hearing to AC (regional head of publisher services). The claimant was accompanied by a colleague (RB) and was allowed to make any arguments she thought appropriate in response to alleged shortcomings in her performance.
Any points made by the claimant at the disciplinary hearing were given due consideration by the respondent. A first written warning was decided to be appropriate to give to the claimant and a letter dated 30 November 2010 duly notified her of this. She did not avail of her right to appeal this sanction although she was informed that she could appeal it if she wished.
With effect from the beginning of December 2010 a more detailed and longer-term PIP (performance improvement plan) was put in place by the respondent to aid and support the claimant to make the required improvements in her performance. In January 2011 AC conducted a mid-PIP review but, at that juncture, the claimant had been unsuccessful with regard to the achieving of several objectives specified in the PIP.
Accordingly, on 20 January 2011 a disciplinary hearing was held for the claimant who was accompanied by a colleague. The issue of a final written warning to the claimant was the result of this hearing. Again, the claimant was informed of her right of appeal and an appeal was heard by NOH who, after considering the claimant’s arguments, decided to uphold the final written warning. On 25 February 2011 the claimant was informed of NOH’s decision.
The claimant and AC met on 3 March 2011 to assess the claimant’s performance with regard to the achievement of PIP targets. To offer the claimant more time by which to achieve the targets set, the deadline was extended from 1 March 2011 to 17 May 2011. An assessment of the claimant’s progress towards the PEP goals was made on 18 May 2011. On 19 May 2011 a disciplinary hearing took place due to the claimant not having succeeded in meeting the respondent’s PIP targets for her. The claimant’s employment was terminated. She did not take up the offer of an appeal.
It was contended by the respondent that it had been entitled to end the claimant’s employment and that the performance matters that had arisen had been followed by a thorough and fair process. A final written warning issued to the claimant by AC on the 20th January 2011.
A disciplinary meeting took place on the 19th May 2011. Present at the meeting were the claimant, AC, SA note taker – head of HR for the group, CH, HRBP, Dublin and RB on behalf of the claimant. As a result of the meeting a dismissal letter issued to the claimant from AC on the 20th May 2011. AC spent time supporting the claimant to help her meet her expectations. The performance of the manager affected the entire team and it was important that managers performed well. As far as AC could recall the claimant did not appeal the sanction of dismissal. The claimant appealed against the final written warning dated the 20 January 2011 on the 3 February 2011. AC discussed several options with the claimant before dismissing her. Another vacancy within the respondent could not be found for the claimant. She wanted the claimant to view the team at a broader level.
The time frames that she set for the claimant were very realistic and the goals were about thinking independently from a tactical to strategic level. There was no reduction in the claimant’s reporting team in 2010. A reduction took place in March 2009 and AC joined in June 2010. AC could not recall talking to the claimant about taking on other work. One of the managers went on sabbatical and AC undertook his work. The claimant was upset that she was not given this position and AC told the claimant to focus on core work. The passing of the claimant’s colleague (PL) did not result in additional duties for the claimant.
In cross examination AC stated she was based in London and also had teams in Germany. She spent several times a week video conferencing with staff on different topics. She had meetings with the team and managers in June 2010. Between three to four managers at level 6 reported to her. The respondent also had more junior and senior managers. July 30 2010 was the first time she had interaction with the claimant and she was on a PEP which was extended by 30 days. The claimant was ill for a couple of days in September 2010; she was upset at the passing of her colleague (PL)
LP worked in the USA office and he was new to the specific European role. The claimant’s PEP was extended by 25%. During this time AC and the claimant had five meetings, one of which took place in the Dublin office. An active plan was put in place to help the claimant meet performance expectations. The amount of work that was coming in to the respondent was not significant. From the 13th July 2010 to the 13th September 2010 AC had 8 to 9 meetings with the claimant two of which were face to face. The claimant was on PEP in September 2010.
All of the claimant’s reviews were retained on her personnel file on line. It was important that the claimant worked well with local recruiters. The respondent hired one person in summer 2010 and when employees left the respondent wanted to fill the positions quickly. AC spoke to the claimant about her work load and requested her to undertake a weekly report which the claimant did not do. She hoped the claimant would revert to her with a detailed plan but she did not. The claimant had suggested a people management idea but the respondent did not want layers of managers in a team of ten. She believed the claimant referred to a lack of leadership in the Dublin office when her colleague passed away. This lack of leadership did not refer to her.
When undertaking assessments employees documented their accomplishments which their peers commented on. Client satisfaction was very important in assessing performance. The weekly meetings that took place with the team were more than sufficient.
When the claimant received a 2.9 rating the respondent looked at objectives for the quarter such as behaviours, proactivity, communication style and also compared the claimant to her peer group. This was done through discussions and meetings at a regional and global level.
The performance appraisal system was very transparent and the rating was confidential. Approximately forty to fifty level 6 managers were employed and all their roles were relatively similar to that of the claimant. The claimant knew that she was calibrated against level 6. Prior to taking up employment with the respondent AC worked with a company who used a very similar appraisal system. AC was well informed to apply this appraisal system, she received training in calibration and she felt that she had sufficient knowledge to undertake her role. Training was part of the role and part of what every manager did in the respondent. A separate system was used for each quarter at calibration meetings. She discussed the claimant’s rating of 2.9 with her manager at her annual review and this led to a disciplinary meeting. The claimant was not issued with an oral warning.
PIP started around 2nd or 3rd December 2010. She had a number of meetings with the claimant and PIP was extended for a further sixty days. The claimant appealed the final written warning that she received on the 20th January 2011. A copy of the outcome of the appeal could not be located. AC believed that the goals were clearly set out in the PIP. The PIP was extended by 60 days to give the claimant a chance to complete it. She attended a meeting on the 21st February with PP and NOH. PP indicated that he was concerned about the formatting of the PIP.
In an e mail dated 28th February 2011 the claimant was informed by AC that she did not meet PIP expectations and due to this she believed that the claimant was going to be dismissed. She issued a final written warning in mid PIP and it was the right decision. She consulted with HR on this and the claimant was given a significant extension of PIP of ninety days. The claimant was not meeting her targets as set out and she still struggled to meet the objectives. The claimant asked for a further extension to the deadline but she had given her the extension.
In answer to questions from the Tribunal she stated that a rating above 3.0 met expectations. When a score of 2.9 was achieved or lower it meant that an employee had not met expectations. At level 6 she expected managers to attain 3.4 as an average mark.
When she was asked about a first verbal warning she replied that she did not remember discussing a verbal warning and the respondent had a performance expectation plan. She could not recall if she was advised to skip the verbal warning. She along with HR spoke to the claimant about the process of investigation leading to a disciplinary. She could not recall if she was made aware of what the disciplinary process was. When put to her that she did not seem to know the disciplinary process when issuing the claimant with a first warning she replied that she could not recall how the conversation with HR went. She did not remember the process about an oral warning. She spoke to HR before the claimant was dismissed. She could not recall if HR was involved in the decision to dismiss the claimant.
Prior to dismissing the claimant several options were discussed and the respondent considered the claimant’s performance in areas where it did not meet expectations. Demotion was not a realistic possibility for the claimant. She could not understand why the letter of dismissal was signed by CH the HR business partner.
CH told the Tribunal that she was a HR business partner with the respondent. She was not the direct business partner on the claimant’s case at the time of her dismissal. At the time of the termination she provided support and issued a letter of dismissal to the claimant on the 20th May 2011. She sent an e mail to the claimant regarding a disciplinary hearing and she referred to the disciplinary procedures on the internet. The higher the level of an employee the higher the salary. When salary was being reviewed the respondent took into account the performance and established if the employees were meeting/exceeding expectations. The claimant was the lowest paid level 6 and she was not performing.
As a result of an annual happiness survey feedback employees’ salaries increased and level 6 increased by 30%. Employees were rated in an annual written review and the manager assessed performance. Managers could write a review about their peers which gave an insight into performance. This was expected to be fair and balanced and there were always areas where employees did well and performance could be turned around. Ninety five per cent of employees met or exceeded expectations. A rating of 2.9 was below expectation.
The expectations for employees were set down by the manager and the employee. The manager met the employee at the start of the quarter. A manager was assigned to do a rating. When a performance plan was in place persistent under-performance would suggest that a first written warning should be given. AR, HR business partner contacted her regarding how to apply the disciplinary policy. AR told her that from July 2010 to November 2010 the claimant had not met the goals over an extended time period and this was serious. The claimant was invited to a disciplinary hearing and when her case was reviewed it was perceived to be at the second stage. This was persistent underperformance. The sanction was straight to a written warning and the respondent procedures have been revised since the claimant was dismissed. The claimant did not appeal her dismissal.
In cross examination CH said she did not have specific knowledge of the claimant’s training. The witness was not involved in calibration. Her first interaction with the claimant was in 2009. AR contacted her regarding advice in relation to PEP and Irish procedures. She met JS at the final stage when the claimant was invited to a final disciplinary hearing. Anything that contained the claimant’s name was pulled from her file and everyone has that right. She advised AR on procedures and she was involved at the point of dismissal.
In answer to questions from the Tribunal she stated that when the claimant presented her case the respondent discussed the possibility of an alternative position for her. The respondent considered if it could assign her to a different role but that was not a reasonable route. It would be highly unusual to consider demotion. At level 6 an employee had to solve problems and should not have to be told what to do. The claimant demonstrated lack of leadership.
NOH the head of sales operation for Northern and Central Europe told the Tribunal that on 11 February 2011 he received an e mail from AR, HR Business Partner who asked him to hear the claimant’s grievance and appeal. He was level 7 and had no prior involvement in the disciplinary process. He was assisted by PP independent consultant. He met PP on 17 February 2011 and he provided him with background briefing. PP gave him documents regarding grievance and appeal, details of PEP and a final written warning. He read all the documents regarding the appeal, first written warning, grievance, PIP and PEP. He met the claimant on the 18 February 2011 to go through the grievance along with PP, and RB.
He wanted to ensure that he understood the claimant’s grievance. He asked the claimant regarding her historic performance. She told him it was not stellar and that her score was 2.9 and 3.0 over the course of three appraisals. A score of 2.9 meant failed to meet expectations and it was unusual for someone at the claimant’s level to receive that rating. PP summarised the allegations made by the claimant against AC. These were (1) not acting as a mentor/guide, (2)provides unclear guidelines/goals, (3)subjectively decides failure, (4)positive feedback not in written form, (5) unfair in reviewing performance, continual attention on negative, (6) criticised me severely, (7) a form of bullying undermining you as person. He went through each point with the claimant and asked for evidence to back up the allegations. He met with AK on the 21 February 2011 and discussed the appeal and final written warning. They focused on PEP and PIP and tried to understand that what was being asked was reasonable.
The claimant had concerns that AK was trying to make her team look bad. The claimant had not nominated anyone on her team for the Technical group awards to celebrate innovation and customer service. AC had forwarded written feedback to the claimant following all of the one to one meetings during PEP and PIP. He was concerned that at level 6 the feedback was very detailed.
On Wednesday 23 February 2011 he met the claimant to discuss specific questions e.g. the information AK gave regarding the number of meetings and positive feedback. After meeting the claimant on Wednesday he met AF a colleague of the claimant who reported to AK and the business team. The claimant suggested that AF was a good person to talk to. AF indicated that he had not observed anything that he would consider as bullying. NOH reviewed all the notes regarding discussions, the disciplinary procedure, grievance procedure, PIP, PEP and final written warnings and notes leading to the process. AC provided guidance and positive feedback. He along with PP and RB met the claimant on Friday February 25 2011 and outlined to the claimant the outcome of the appeal. He concluded that the final written warning should stand.
In cross examination he stated that he found the PDF version of the grievance procedure and disciplinary procedure on the internet. He could not recall where he saw the three stages of the disciplinary AF did not say that he saw AK undermine the claimant. The claimant queried why she received a final written warning while she was on PIP. Three out of five to six deliverables had not been met by the claimant. He was involved in the grievance and final written warning and demotion was not discussed. He was trying to get across to the claimant not to give up hope at this point. It was appropriate to issue a final written warning and AK advised AC to issue a final written warning. He accepted the decision taken by AC with advice from AR.
In answer to questions from the Tribunal he stated that he did not know what level AR was. He did not know if AC was at level 6 or 7. It was likely that AC was at level 6. The notes of the meeting were written up while the meeting took place on the 25 February 2011 and PP would have hogged them slightly after the meeting had taken place on the 25 February 2011. When put to him that prior to the 25 February 2011 he and PP had come to a conclusion he replied that they did not discuss what would happen next. PP did not express any concerns to him regarding the final written warning and PP was very happy that the process was followed.
Claimant’s Case
The claimant told the Tribunal that she worked with DC since 2000. She had no issues in work until 2010 until she was put on a PEP (Performance Expectation Plan) in July 2010.
Her manager changed in 2010. She received performance ratings of 3.0 and 3.2 and she was very concerned with these ratings. Her manager EW was promoted and another manager was put in place at that point. At that point EW told her that there was a possibility she would be placed on PEP. She had not met AC before this and AC attended a few team meetings. She commenced PEP in August 2010 for thirty days. Her colleague PL was very ill at this time and he died in August 2010. She worked very closely with his team and took over his team and she had eighteen to twenty reports at that point.
She was invited to a disciplinary meeting by letter dated 26 November 2010. The disciplinary meeting took place on the 29 November 2010. She was not told about grievance/ disciplinary prior to the meeting. She was told it would be undertaken in accordance with Irish Law and that she could check the respondent’s disciplinary procedure online. Deliverables were set out as part of PEP and she tried to achieve it by November/January. Deliverables were not met and she received a final written warning. She thought that she could meet the target. She was informed that she had done 95% of PEP and she was then put on PIP. She was not sure why she was put on PIP at this juncture. She did not feel that she was treated fairly. She did not know why she was being singled out, she had completed 95% and it was not good enough.
A major project regarding support issues was coming to her team. She was involved in the Hotkey project which was an initiative of her team and this ended up being global. It was part of the overall initiative to reduce incoming support calls so that they could categorise technical support and it resulted in lowering the amount of cases that came to the support team. Once they received the case they determined the cause. They had indicators for other products and it increased the workload and time on projects. The team made a suggestion regarding categorising tickets.
She submitted drafts so that AK could peruse them. AK would add an additional task in feedback and changed the scope of the original request. AC would have adjusted PIP and amended it. She was continually being asked to produce more and more. It was difficult to manage work in the time frame requested.
She attended calibration meetings and she was asked to calibrate employees on the team and she would have a score for everyone. She would have given a rating of 3.5 at meetings and this exceeded expectations. A manager who did not know an employee could suggest a lower score for an employee. During 2008 she gave a member of her team a rating of 3.5 after she had gone through the calibration process. The claimant was at level 6 and this employee was at level 3 or 4. She noticed on a template that this score was changed to 3.3 and she did not know who did this. As the respondent had a bell curve system in place scores had to be reduced. CEO level in the respondent altered the score and the template affected employees scores from CEO level down.
At one meeting it was suggested that an employee’s score should be reduced to 2.9. It would be very strange and not fair. A score of 2.9 resulted in an employee not receiving all of their bonus entitlement. 2.9 is a negative number. At every meeting she attended there had to be a score of 2.9 and this affected the bonus and salary. She was asked to rate employees and it was possible that employees who did not know employees being rated would be given these scores. Level 6 did not calibrate each other and employees did not know who calibrated them. The calibration process was not fair and it was not about how good /bad an employee was. It was about a bell curve and the rating system could be arbitrary and subjective.
The claimant received a score of 2.9 which led her to her been put on PIP. She had no idea who calibrated her. Meetings about performance took place online. The score was capped to stay at the same level. She was not able to get a full bonus. On the 18 January 2011 she received a final written warning. A meeting which took place on 20 January 2011 resulted in PIP being continued. She tried to achieve all her goals and she did miss some deadlines. No matter what she did it was never good enough. Termination was the vary last result and she was not very happy with the idea of a final written warning.
She challenged the final written warning as she thought that as AK had put her on 2.9 she was determined to ensure that she would not succeed. She outlined the difficulties with AC at that point. Two managers who were in the USA were not good managers, she believed they were at level 6 and they were demoted. She did not think that she would be dismissed. She tried to be prepared for dismissal or at least demotion. She was told that the decision was dismissal.
After she was dismissed she had savings that she lived off. She did not think of seeking social welfare. She obtained alternative employment in June 2013. She received her notice payment in full.
In cross examination she stated that she was in a very senior position at level 6. She was not clear how senior it was at the time. She managed a team of analysts. A support desk was in place where a client could contact her team. She had issues with the scores she received. She told her manager EW that the clients were happy and the team happy. She appealed the first written warning. She did not appeal the final written warning as she was emotionally drained. The PIP was extended and she was not allowed the time to fulfil all her tasks. She was informed that the disciplinary procedure was available online. She did not think that she would be dismissed. She wanted to be the best manager that she could. She challenged the final written warning. She had five days in which she could appeal the dismissal. She did not appeal the dismissal as anything that she tried to appeal would be ‘shot down’.
Determination
Having carefully considered the evidence adduced it has not been established to the satisfaction of the Tribunal that the claimant changed from an employee with no disciplinary record to a less competent employee within a short period of time. The claimant had no performance issues until July 2010. It was claimed by the respondent that it is a fair dismissal and that it was linked to competency and the Tribunal does not believe this.
There was no evidence given that the respondent considered any other option other than termination e.g. demotion. Furthermore the Tribunal is not satisfied that fair procedures were used and therefore it is procedurally unfair. In consideration of the evidence over three days and submissions made by both parties the Tribunal finds that the claimant was unfairly dismissed and her claim succeeds and the Tribunal awards her compensation of €110,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The claimant received compensation in lieu of notice and she is not entitled to an award under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)
Horan -v- CWS BOCO Ireland Ltd
[2012] IEHC 514
Murphy J
1. By special summons dated the 2nd December, 2011, the appellant claimed, inter alia, in relation to a determination of the Employment Appeals Tribunal (EAT) that there was sufficient evidence before the EAT on which it could properly find that the appellant’s position with the rep company was made redundant with effect from the 27th November, 2009.
2. It was the appellant’s case that he commenced employment with the respondent in April 2003, as a delivery driver who undertook heavy work. In late 2008, and in the service of his employer, he suffered injury as a result of a road vehicle crash. He had since submitted medical certificates to the respondent stating he was unable to work from that date. The certificates were issued regularly and continued to be furnished to the respondent up to and beyond the appellant’s application for redundancy.
In early November 2009, the Labour Relations Commission had published a proposal for the orderly closure of the respondent’s predecessor at two locations including that at which the appellant had worked.
Under the title Redundancy Terms was the heading “Long Term Absence” which provided as follows:-
“On receiving a doctor’s certificate confirming full fitness to return to work by the 27th November, the company will apply the terms of this agreement. Other cases will be reviewed by the company on a person-by-person basis.”
The appellant received a letter dated the 9th November, 2009, stating his position with the respondent was being made redundant with effect from the 27th November. On the same day (9th November) the appellant obtained a medical certificate from his doctor stating that he was fit to return to work.
The appellant denied receiving a further letter dated the 12th November, rescinding the information contained in the letter of the 9th November and placed him in the long term absence category.
This certificate was not exhibited in the grounding affidavit of the appellant. The only exhibit was the determination of the Tribunal.
The Tribunal’s decision was that since the respondent company maintained that the appellant was still an employee, there was no case to answer regarding the appellant’s alleged cessation of employment and accordingly, concluded by majority decision that it found the claim under the Redundancy Payments Acts 1967 to 2007, failed.
3. Replying Affidavit
The replying affidavit of David Lennon, head of logistics of the respondent, referred to the medical certificate indicating that the respondent was fit to return to work from the 16th November, 2009, (the “Return to Work Certificate”), notwithstanding that the respondent was already in receipt of a medical certificate dated the 2nd November, 2009, in which it was clearly stated that the appellant was unable to work until the 2nd December, 2009.
On receipt of the Return to Work Certificate the respondent wrote to the appellant by letter dated the 13th November, 2009, asking him to attend the respondent company doctor for examination. On foot of that examination, on the 17th November, 2009, an occupational health assessment, which was exhibited, was received by the respondent and forwarded to the appellant. The occupational health assessment included an update on the review of the appellant following his road accident. The assessment referred to the likelihood of recurrence and to the worsening of the appellant’s neck injury. His symptoms were then beginning to appear. There was a high likelihood of recurrence. There were problems with his lower back which had improved following injections, but he could develop symptoms after walking. In relation to fitness for work, the assessment was that the appellant had complex serious of injuries, cervical pain, carpel tunnel of his left wrist and degeneration of his lower spine with some evidence of spinal stenosis.
It was the company doctor’s opinion that the nature of the appellant’s previous job which involved driving and significant manual handling with the pulling of heavy trollies with linen would exacerbate and worsen his problem. He declared that the appellant was unfit to go back to his job.
The “Return to Work Certificate” was not exhibited in Mr. Lennon’s affidavit. The court also notes that the EAT stated that the certificate and the occupational health assessment had not been presented in evidence.
The further letter of the 12th November, 2009, which the appellant said he did not receive referred to the letter of the 9th November, three days earlier, being incorrectly sent to him which reported to give notice of redundancy and which had not been issued and was therefore withdrawn. The letter referred to the agreement with SIPTU concerning redundancy terms and had a specific clause for staff currently on long term absence which stated that “on receiving a doctor’s certificate confirming full fitness to return to work by the 27th November, 2009, the company will apply the terms of this agreement. Other cases will be reviewed on a case by case basis”.
The letter continued:-
“As you are aware you have been absent from work since the 1st February, 2008, and we would request that you would consider the terms of this agreement and provide us with an update on your medical condition no later than the 20th November, 2009.
The company will continue to reserve the right to refer you to a company medical adviser for independent assessment if necessary.”
Further letters were received by the appellant on the 29th November, 2009, the first of which said that it was anticipated that “the ex gratia payment agreed as part of the LRC proposal will be paid by the 24th December, 2009. At this time, the company will contact you to arrange for you to come in and collect your ex gratia payment cheque.”
The second letter, entitled “To whom it may concern” confirmed that the appellant had been made redundant from Linen Supply of Ireland (the respondent’s then trading name) on the 27th November, 2009. It further stated that that redundancy had been made as a result of an extensive restructuring programme that the company unfortunately had to undertake and that “Michael’s P45 would be issued on the 3rd December, 2009”.
4. Affidavit of Mr. Nagle
The affidavit of Anthony Nagle, solicitor for the appellant, sworn on the 8th October, 2012, exhibited the file which had been given to the Tribunal by the appellant’s Union representatives.
A list of contents referred to Form T1-A, RP50 Form, letters confirming redundancy on the 27th November, 2009 and regarding annual leave, notice, salary and ex gratia payment also on the 27th November, 2009. The contents also include Labour Relations document, email regarding non payment of redundancy, re-registration of the agreement, framework of the proposal for orderly closure, letter regarding proposed redundancies of the 9th October, and notice of all relevant employees.
The Labour Relations Commission document is that dated the 4th November, 2009, which was signed by two company representatives and thirteen SIPTU representatives, including the appellant. The document was a proposal for orderly closure of Linen Supply of Ireland facilities in Fonthill and Naas Road (the latter premises had been that where the appellant worked). It was clear that the proposal, if rejected, would be withdrawn and would have no status. The proposal referred to the examinership occasioning significant legal constraints in the nature of any commitments that could be provided. It referred to ex gratia payments being conditional in full cooperation with outgoing production and collection/distribution activities until the 27th November, 2009.
It dealt in some detail in redundancy terms. In respect of long term absence it provided, as already noted that “on receiving a doctor’s certificate confirming full fitness to return to work by the 27th November, the company will apply the terms of this agreement. Other cases will be reviewed by the company on a person-by-person basis”.
The court notes the first paragraph of the proposal which followed on from the announcement by the examiner of the proposed closure of the sites at Fonthill and Naas Road with a consequent redundancy of all staff working in or from those facilities.
5. Submissions on behalf of the appellant
The applicant referred to errors of law by the Tribunal being first, incorrectly applying the Redundancy Payments Acts and secondly, incorrectly analysing the facts.
In respect of the first error it was submitted that the determination did not contain any analysis provisions of the Redundancy Payments Acts or any attempt to establish whether the appellant came within the terms of that legislation. The focus of the Tribunal was on whether the appellant came within the terms of the proposed agreement. It was submitted that at no time did the respondent reserve any right to have the contents of the medical certificate which the appellant was required to furnish, reviewed or challenged by any third party including their own medical advisers as this was outside the terms of the agreement.
The court notes that the letter of the 12th November did reserve that right though the appellant denies having received it. The court also notes that the letter from the appellant which was not exhibited in the affidavits before this Court, nor, received by the Tribunal, appeared to be at variance with the certificate of what appears to be the same doctor who certified that on the 2nd November, 2009, that the appellant was suffering from neck and back injuries due to the road traffic accident and was unable to attend work from the 2nd November 2009 to the 2nd December, 2009 and also, by certificate dated the 30th November, 2009 that the appellant was unable to attend work from the 30th November, 2009, to the 30th December, 2009 and for over 24 months succeeding up to the 23rd February, 2012. Clearly this is inconsistent with the conditions in the proposal of the Labour Relations Commission.
The second error of law referred to was that the Tribunal incorrectly analysed the facts. Reference was made to the decision of McCracken J. in National University of Ireland Cork v. Ahern [2005] IESC 40, [2005] 2 ILRM 437.
McCracken found:-
“The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts, is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law and can be considered on an appeal under section 8(3).”
It was submitted that the appellant did not accept that there was any or insufficient evidence before the Tribunal on which it could deny that the appellant’s position within the respondent company had become redundant on the closure of the Naas plant on the 27th November, 2009.
It was further submitted that the Tribunal erred in law in failing to give any or any undue weight to the letters dated the 9th and the 27th November, 2009, to the effect that the appellant’s position with the respondent was redundant with effect from the 27th November, 2009, and that there was no suitable alternative position for the respondent.
The court is satisfied that the Tribunal did, indeed, take into account the letters which were before it and were aware that the Naas Road plant had closed down and that no suitable alternative position was offered (nor indeed applied for) by the appellant.
The Tribunal did not err in law in considering the findings of the respondent’s occupational health assessment to be relevant given the court’s findings in relation to the inconsistency of the fitness to work certificate and the sick certificates.
It was submitted that it was only when the appellant became aware in or on March 2010, that some of his former colleagues had received statutory redundancy payments that he began making inquires as to his employment status. The court notes that he was not legally advised at the time, but is of the view that the issue was whether or not he was entitled to the benefit of the Labour Relations Commission Agreement.
The court is also of the view that the mandatory nature of the provision relating to long term absences was, indeed, considered by the Tribunal.
The certificate by the appellant’s own treating General Practitioner regarding his fitness to work on the 16th November, in the circumstances of the contradictory certificates by the same General Practitioner, could not, be in compliance with the terms of the agreement.
6. Submissions on Behalf of the Respondent
The respondent referred to the role of the court in reviewing the decision of specialist Tribunals referred to in Kerr’s Termination of Employment Statutes (January 2012 at pp. 1-79) where it is stated that the High Court must consider whether the body based its decision on an identifiable error of law or an unsustainable finding of fact. Reference was made to the National University of Ireland Cork v. Ahern, already referred to, that although findings of fact must be accepted by the High Court on appeal, the court could still examine the basis on which those facts were found. The relevance of the matters relied on in determining the facts were a question of law.
It was submitted that no identifiable error of law had been shown nor had any unsustainable finding of fact had been considered by the EAT in the coming to the conclusions of its determination.
7. Decision of the Court
7.1 The court considers the roles of the EAT and of the court in relation to claims of unsustainable findings of fact and errors of law.
7.2 The Role of the EAT
The EAT is an independent body established to provide speedy, inexpensive and relatively informal means for the adjudication of disputes on employment rights (Forty Third Annual Report (2010) of the Tribunal as cited in Kerr’s Termination of Employment Statutes (January 2012) at pp. 1-79). Part of its remit, pursuant to s. 39(15) of the Redundancy Payments Act 1967, is to consider any application brought by an employee who is dissatisfied with “. . . any decision of an employer under this Act . . .”. It is a specialist Tribunal. The EAT determined Mr. Horan’s claim under the Redundancy Payments Act and found by a 2 to 1 majority, that Mr. Horan’s claim failed.
7.3 This appeal by Mr. Horan comes before the court by way of special summons as already summarised above in relation to the determination of the EAT.
7.4 The Role of the High Court
The function of the High Court in reviewing the decision of specialist Tribunals is well summarised in Kerr’s Termination of Employment Statutes (January 2012) at pp. 1-79:
“The circumstances in which the High Court will overturn a decision of a specialist Tribunal such as the Employment Appeals Tribunal have been considered in many cases, (see Henry Denny and Sons (Ireland) Limited v. Minister for Social Welfare [1998] 1 I.R. 539) and in particular the comments of Hamilton C.J. at para 37. In considering whether to allow an appeal against a decision of such a Tribunal, the High Court must consider whether the body based its decision on an identifiable error of law or an unsustainable finding of fact. A decision cannot be challenged on the grounds of irrationality if there is any relevant material to support it: see Mulcahy v. Waterford Leader Partnership Limited [2002] E.L.R. 12 (O’Sullivan J.) and Thompson v. Tesco Ireland Limited [2003] E.L.R. 21 (Lavan J.). In National University of Ireland Cork v. Ahern [2005] 2 IR 577, the Supreme Court held that, although findings of fact must be accepted by the High Court on appeal, that court could still examine the basis upon which those facts were found. The relevance or admissibility of the matters relied on in determining the facts was a question of law.” (Emphasis added)
7.5 Hamilton C.J. in Henry Denny held:-
“I agree with the judgments about to be delivered but I believe it would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”
7.6 The function of the High Court was also considered in Wilton v. Steel Company of Ireland Limited [1999] E.L.R. 1. O’Sullivan J., dealing with an appeal from the labour Court (in relation to an equal pay claim) observed at p. 5 that:-
“. . . I would make it clear, of course, that it is no part of my function to test the strength or weaknesses of such arguments. This is not a Court of appeal, but only a Court of appeal on a point of law, which is an entirely different matter. No argument was made on behalf of the Plaintiff that the Labour Court was irrational in reaching its decision and therefore it is not for this Court to weigh the strengths or weaknesses of the arguments or evaluate its determination thereon.”
The Supreme Court distinguished fact and law in its judgment in O’Leary v Minister for Transport [1998] 1 IR 558 (in the context of a decision of the labour Court. Murphy J. referred with approval (p. 564) to the decision of Barron J. in the High Court (14th February, 1997) in which Barron J. having referred to the original and additional grounds of appeal said:-
“In my view, these grounds of appeal in reality are no more than an appeal on the facts rather than on the law. Saving one paragraph, there is no averment that findings were not supported by evidence. I have no doubt that the applicant believes that she, and those in her grade, do like work with radio officers and are being discriminated against by reason of their sex. But the facts to support such a claim must be established before the Labour Court. They were not established there and in my view the controversy must end with that failure.”
7.7 A similar approach had previously been adopted in Irish Shipping v Adams [1987] WJSC-HC 855, in which Murphy J. noted that:-
“On behalf of the respondent it was contended that the conclusion of the Tribunal was based on findings of fact which were within the jurisdiction of the Tribunal and not reviewable on appeal to this Court. In my view that argument is well founded.”
7.8 Insofar as a point of law is to be determined by the court such a point should be precisely identified. As observed by Laffoy J. in Minister for Finance v. McArdle [2007] IEHC 98 (in the context of Fixed Term Work Act):-
“. . . I have found the process of these proceedings to be very unsatisfactory. First, the special summons procedure, as it was implemented, even though it may have followed the usual practice, lacked precision as to the points of law for determination by this Court and the grounds on which it was asserted the Labour Court erred.”
7.9 The respondent submitted that there was no identifiable error of law nor unsustainable finding of fact on the part of the EAT in its determination.
7.10 Unsustainable finding of fact
The reliefs 1-10 are, in essence all matters of fact, notwithstanding that they are referred to as being errors of law. The matters of which the appellant complains were in fact fully considered by the EAT. There was evidence before the EAT to reach the conclusion which it did. Reliefs 11-16 allege errors of law on the part of the EAT in failing to give any or any due weight to matters put in evidence.
7.11 There is no assertion in the appellant’s affidavit that such conclusions were not supported by evidence. The EAT’s determination is based on a full consideration of both sides’ evidence as recorded in the determination. The facts were considered were within the jurisdiction of the Tribunal. The conclusions reached were based on those facts. There is no assertion in the appellant’s affidavit that such conclusions were irrational.
7.12 The EAT’s determination recorded in some detail the arguments made by both sides and the fact that one member had a dissenting opinion. The determination sets out the facts upon which the EAT came to is conclusion.
7.13 Identifiable Error of Law
Reliefs 11-16 allege errors of law on the part of the EAT in failing to give any or any due weight to evidence before it. In the first instance reliefs 11-16 also present as matters of fact. However, insofar as complaint is made at reliefs 11-16 inclusive as to the matters which ought or ought not to have been considered or ought or ought not to have been taken into account, it is acknowledged that this can, in principle, be considered a matter of law insofar as it concerns the relevance or admissibility of the matters relied on by the Employment Appeals Tribunal (McCracken J. in National University of Ireland Cork v. Ahern [2005] 2 IR 577 at 580). However, as observed by Laffoy J. in Minister for Finance v. McArdle, there is a lack of precision as to the points of law to be put in issue also in the present case.
7.14 No substantive issue arose as to relevance or admissibility in this case. It is clear that the evidence advanced before the EAT was considered and factored into the EAT’s determination; that there is a dissenting opinion highlights this. It is alleged at relief 12 that the EAT failed to have regard to the “appellant’s reasonable expectation that his case would be reviewed as to redundancy entitlement”. The EAT did in fact consider this: it is explicitly stated in the dissenting opinion. The appellant’s real complaint, is that the EAT did not weigh the balance of evidence in his favour. As such it is submitted that, to use the Henry Denny test, there is no “identifiable error of law” either in relation to the evidence considered by the EAT or indeed to the applicability of the provisions of the Redundancy Payments legislation.
7.15 Concluson
It is not the function of the court to, in essence, re-weigh the evidence before a specialist Tribunal such as the EAT. There were sufficient facts on the evidence before the EAT to allow it come to the conclusion which it did.
The EAT considered the letter of the 9th November, 2009, regarding redundancy which was sent to the appellant as well as to the general workforce. The EAT also considered the non receipt by the appellant of the letter of the 12th November, 2009, which sought to rescind the information contained in the letter of the 9th November, and placed the plaintiff in the long term absence category.
In its determination the EAT found that the appellant was still an employee, who was submitting sick certificates to the respondent. He did not come within the Labour Relations Commission agreement which required that an employee on long-term sick leave had to submit a doctor’s certificate stating fitness to work. As he was still submitting sick certificates even after his fitness to work certificate, he did not come within that agreement.
7.16 There was no identifiable error of law nor unsustainable findings of fact by the EAT in its determination of the matters before it. The appellant had failed to prove the facts entitling him to redundancy and ex gratia payments. The inconsistency between the medical certificates that the appellant was unfit for work which were sent to the respondent at the time and, indeed, after the doctor’s certificate confirming full fitness to return to work. The finding of fact is within the jurisdiction of the EAT and is not reviewable by this court
7.17 The court is not satisfied that the Tribunal erred in law in finding that the appellant was still an employee of the respondent company; that they erred in law in finding that the appellant was still on sick leave from his employment with the respondent; that the Tribunal erred in law in failing to give any or any undue weight to the letters dated the 9th November, 2009 and the two letters dated the 27th December, 2009, or that it erred in law in failing to give any or any undue weight to the evidence that the Naas Road plant where the appellant was employed closed down and no alternative was offered to the appellant.
In the circumstances the court refuses the plaintiff’s claim.