These cases are a sample of determinations issued by the Employment Appeals Tribunal in November 2009. The first case concerns the actions taken by an employer after a less than satisfactory investigation. The second case shows the Tribunal split in its determination where dismissal of an employee who never returned from sick leave was in dispute.

On an administrative point concerning waiting times, we were informed by the EAT in December that the waiting time for a case to get to hearing in Dublin is currently around 44 weeks.

Austin Ward v Federal Security Solutions Limited UD128/2008

This case came before the Tribunal by way of an appeal by the employee (“appellant”) against a recommendation of the Rights Commissioner (R-053624-UD-07).

Background:

The respondent provides security personnel at various sites. The appellant commenced employment with the respondent in March 2005 and at the time of the incident in question had been working on the hospital site for around seven months. His duties as a security guard included patrolling the hospital car park and placing stickers on illegally parked cars. Up to this time the appellant had an unblemished employment record with the respondent.

On the morning of Wednesday 17 January 2007, a sticker was placed on Mrs D’s car because it was parked in a space reserved for disabled drivers without displaying the requisite permit. Mr D, the driver’s husband and owner of the car, was a director of another company, which also engaged the services of the respondent on its premises. Mr. D lodged a complaint with the hospital (the respondent’s client) on behalf of his wife alleging that a security guard had used foul and abusive language to his wife. The complaint was communicated to the respondent’s CEO in head office and an investigation was initiated. The respondent’s HR manager denied that the referral of this incident to the highest level, the respondent’s CEO, was unusual.

On Thursday, 18 January, the respondent’s senior supervisor on site (RSS) interviewed the five security guards including the appellant who had been on duty at the hospital on 17 January. Each of them denied involvement in the altercation. It was the appellant who pointed out to RSS that he did not fit the description provided by the complainant whatsoever and assured RSS that he was not involved in the altercation as he does not use such language.

Mr D came to the hospital and examined the CCTV footage with RSS. Footage saw the appellant on duty in the area and standing by the reception door. RSS then spoke to the appellant in the presence of his shop steward. The appellant told him that it could possibly have been he that put the sticker on Mrs D’s car but he denied any involvement in an altercation or confrontation. The appellant confirmed to RSS that he had seen two women trying to remove a sticker but he had not gone to them as there was no point in doing so if a sticker had already been put on the car. The CCTV footage did not show any altercation. The appellant suggested to RSS to bring in the two women to identify that he was not the security guard in question. RSS told him that he was not accusing him of involvement in the altercation.

The appellant was on holidays the following week and was due back to work for the night shift on Monday 29 January 2007. On that afternoon RSS telephoned the appellant instructing him not to resume his duties in the hospital and assigned him instead to the other work sites for the rest of the week. The appellant felt he was being accused. RSS explained to him that he was being transferred from the hospital pending the completion of the investigation into the incident but assured him that it was “a thing of nothing” and that the investigation would not take long. It was the respondent’s evidence that the appellant had been moved from the hospital site because, after viewing the CCTV footage, he had been the only one on duty at the hospital entrance, although it did not show him doing anything wrong.

Appellant’s Case:

The appellant claimed that his colleagues on the other site taunted him about the incident. The appellant’s next scheduled shift, was due to be in Killarney. However, on Monday 5 February, the appellant submitted a sick certificate stating that he was unfit for work due to stress. Around a week later he submitted another medical certificate for a further two weeks. The appellant was expecting that the investigation would be concluded within two weeks – the week of his holidays and the week following his return.

The appellant felt nothing was being done, and telephoned his trade union representative who advised him to get a “without prejudice” letter from RSS stating why he had been moved from the hospital. When this was requested, RSS told him there was no need for a letter. As no one else had been moved from the hospital site, the appellant felt that he was being made a scapegoat and the whole situation was getting to him. Being accused of verbally abusing a woman weighed heavily on him. The respondent was doing nothing about it and the trade union was not processing the matter so he contacted a solicitor to clear his name. His trade union officials involvement ended at this point.

On 7 February 2007, the appellant’s solicitor wrote to the respondent denying that the appellant was involved in the incident, informing the respondent that the appellant was extremely upset and distressed by recent events and called on the respondent to redress the situation within ten days or legal proceedings would be instituted. The respondent’s HR Manager did not reply to the letter and this made the appellant feel that he was being blamed.

The appellant returned to his solicitor who again wrote to the respondent on 27 March. The situation had been playing on the appellant’s mind, there were arguments at home and the appellant “knew” that the respondent was going to ignore the matter completely. The appellant got sick of waiting and, because he could not handle it any more, he wrote to the respondent and resigned. He did not inform his solicitor that he was tendering a letter of resignation. His resignation letter was undated and the appellant could not remember exactly when he had sent it.

While the move from the hospital to another site meant a reduction in pay through the loss of overtime, it was not the loss of money but the damage to his good name that caused the appellant concern. The appellant was relieved following his resignation and sought alternative employment in bars and hotels. It was an industry where he had worked previously. The hours he worked per week varied but he worked fewer days per week and netted less pay. The appellant could not go back to security work as he had not completed his security training and exams.

Respondent’s Case:

The respondent’s Site Supervisor (RSS) stated that the resignation letter was received in the respondent’s Cork office on 23 March 2007 and forwarded to the respondent’s CEO at head office reaching her on 3 April 2007. The HR Manager did not reply to either of the solicitor’s letters because the respondent had an exclusive agreement with the trade union, the appellant was out sick and she did not want to communicate with a third party. She confirmed that she had not written to the trade union to inform them of the involvement of a third party. She saw the appellant’s resignation letter on 3 April but also saw no point in replying to it.

In late March, RSS had a telephone conversation with the appellant about a forthcoming examination for security guards and offered to help him if he had any difficulty with the paperwork. The appellant denied RSS’s contention that, during that conversation, he had asked the appellant about his return to work. The appellant had not expressed his frustration at the lack of progress to RSS during their conversation. The appellant did not attend the course.

It was the respondent’s case that the appellant’s absence on sick leave stymied the investigation. However, the appellant contended that his stress did not confine him to bed and he would have made himself available for a meeting but he had never been asked to one. The HR Manager maintained that the appellant had failed to comply with the grievance procedure which stipulated that an employee should in the first instance raise his grievance with his on-site supervisor and failing a satisfactory outcome at this level, he should have referred it to the next level and ultimately the trade union official would raise the issue with the HR Manager. It was the appellant’s case that he spoke to RSS because he was his boss.

The appellant was moved from the hospital site, at the client’s request, because he was the security guard on duty in the area where the incident occurred. He was the only security guard “in the frame” unless another guard had relieved him for his break at the time. The appellant confirmed that there was one security guard on the hospital site who fitted the description given by the complainant but he could not say if this person was involved in the incident. According to RSS, the respondent had no previous problems with the appellant and it would have been out of character for him to use the alleged foul language.

Determination:

The appellant became the focus of the investigation because he was the security guard on duty in the relevant area at the time of the alleged altercation. He remained the only focus of the investigation despite his repeated denials of involvement in the altercation, the fact that he did not fit the description provided by the complainant, his senior supervisor’s acknowledgement that such language would be out of character for the appellant, and the possibility that another security guard could have been in the area. The appellant suggested that the original complainant be invited to participate in the investigation. No evidence was adduced to suggest that anyone from the respondent ever spoke directly to her. Nor did the Tribunal have the opportunity of hearing any evidence from her.

The Tribunal was aware of the difficulties presented to the respondent when the hospital’s head of security requested that the appellant be transferred from the site. However, no steps were taken by the respondent during the week of the appellant’s return to work to progress the investigation. The appellant had already been questioned twice about the incident and on each occasion he had denied involvement in the alleged altercation in the car park. There was no evidence before the Tribunal that the respondent had taken any other steps during the following seven weeks, up to the time of the appellant’s resignation, to confirm or refute the appellant’s stated position on the issue. The Tribunal considered the respondent’s contention that the appellant failed to adhere to both the grievance procedure and respondent’s exclusive agreement with the trade union. However, when the appellant approached his senior supervisor it was not drawn to his attention that he was not strictly adhering to the respondent’s grievance procedure. He approached his solicitor because he felt he was getting nowhere. Similarly, the respondent did not remind him of the exclusive agreement.

Having considered all the evidence surrounding these issues, the Tribunal was satisfied that the appellant was not unreasonable in adopting this course of action. Crucial to the Tribunal’s finding on these issues was its acceptance that the allegation that he had verbally abused a female affected the appellant seriously and played on his mind. The medical certificates he submitted to the respondent certified that he was suffering from stress. In the circumstances of this case and in particular where the respondent was relying on a complaint received at a number of removes from the alleged incident, the Tribunal was satisfied that the respondent ought to have communicated with the appellant. In particular, it was unreasonable for the respondent to maintain silence and not make some response to his solicitor’s letter of 7 February. This failure by the respondent convinced the appellant that he was being blamed for the incident and this further added to his stress. The Tribunal was satisfied that it was reasonable for the appellant to feel that he had been made a scapegoat.

In all the circumstances of the case the Tribunal unanimously found that it was reasonable for the appellant to terminate his contract of employment with the respondent. Accordingly, the appeal under the Unfair Dismissals Acts, 1977 to 2008, succeeded and the recommendation of the Rights Commissioner was overturned. The appellant was awarded compensation of €10,000 under the Acts.

Witold Pomykala v OKM Trailers (Manufacturing) Limited UD1269/08

Preliminary Issue:

The submission of the claim outside the initial six-month time limit was accepted by the Tribunal on the grounds that extraordinary circumstances existed, and that the Tribunal had jurisdiction to hear the case.

Dismissal as a fact was in dispute.

Claimant’s case:

The claimant commenced employment in May 2004. He was employed as a fitter/welder. On 10 April 2008, he injured his back while lifting a sheet of metal in the course of cleaning a trailer. As he did not speak English he could not report the incident to his superiors. He said that some colleagues had witnessed the incident. A colleague helped him finish his work that evening and gave him painkillers to ease the pain.

The following morning he did not attend work. His son contacted the respondent and informed OKM Trailers of his father’s illness. The claimant visited a Polish doctor in Dublin where he was prescribed painkillers. As he was still in a lot of pain he decided later that night to go to Naas hospital. He did not wait to be examined by a doctor but a nurse took details of his injury. His son had been in touch with the respondent during his father’s illness and had furnished the respondent with the first medical certificate from the hospital. The next morning (12 April) the claimant travelled home to Poland where he was examined by his own doctor. He was given a series of injections but was still unwell, and was hospitalised for three weeks. The claimant sent his medical certificate to his daughter-in-law who took care of his affairs in Ireland during his absence. It was cited that she in turn furnished the medical certificates to the respondent by post. His colleagues from the respondent sent him a get well card early in May. In mid-June the respondent issued a P45 to his address in Ireland.

It was always the claimant’s intention to return to work in Ireland. At the end of July 2008, the claimant felt he could return to work as he had made a good recovery. However, he had received his P45 by post in mid-June and understood the respondent had dismissed him then. He never informed the respondent that he was not returning to work. Because he had no income he sought occupational injury benefit from the Department of Social Welfare. It was then that he was issued with a P45.

Respondent’s Case:

The company employs four full-time staff and three part-time staff and is engaged in manufacturing and refurbishing articulated trucks. The Managing Director (M) gave evidence. The claimant was employed as a fitter/welder and his work did not require him to lift a sheet of metal. It was stated that the claimant had been a good employee for the three and half years that he worked with the respondent. The day in question, 10 April 2008 had been a normal working day and no injuries/incidents had been reported from any staff member. Guidelines for reporting injuries are clearly set down in the written safety statement handed to each employee on commencement of their employment and are also displayed on several walls throughout the company. No matter how small an injury each employee is required to report it to management and this is recorded in the respondent’s Accident Report Book. M had taken the claimant through these procedures upon his commencement with the company. M explained that forklift trucks were provided for lifting heavy objects and no one was expected to lift a heavy object on their own.

On 11 April 2008, M was notified by an employee that the claimant was sick. The following Monday, 14 April 2008, M received a message from another employee that the claimant had gone home to Poland. No reason had been given for the claimant’s return to Poland. M enquired from two employees on several occasions as to how the claimant was but did not receive any feedback. Three weeks later the claimant’s daughter–in-law called into his office and gave him a medical certificate covering the claimant’s absence from 17 April 2008 to date. She said the claimant would not be returning to work. M enquired if the claimant was ok and was informed that the claimant was not great, that his illness was ongoing and that he had not been looking after himself. No further medical certificates were received from the claimant. M had not received any phone calls from the claimant or his family regarding the claimant returning to work. Subsequently, the company sent a get well card to the claimant.

An employee who had worked in the company for nine years gave evidence. Health and safety documents were handed to each employee on commencement of employment. These documents were also displayed on various walls in the company. No employee was expected to lift heavy objects. They all worked in unison. He was also unaware of any incident occurring in the company on 10 April 2008. As each employee worked in close proximity to each other everyone would be aware if any incident occurred. A company director, who was also a first-aider, gave evidence. He found the claimant to be a gentleman, an excellent worker and a good time keeper who was held in high esteem. During the claimant’s employment the company director had never had to caution him. The Director had worked from 7.45 to 5.45 pm on 10 April 2008. No incident was reported to him. He was responsible for the Accident Report Book and there was no entry for that day. The claimant’s son handed in the first medical certificate covering the claimant’s absence from work to him. The claimant had not returned to work following his hospitalisation in Poland. On foot of a letter dated 9 June 2008 from the Department of Social Welfare, which outlined that the claimant was seeking illness/occupational injury benefit, he issued a P45 to the claimant.

Determination:

The Tribunal determined by a majority decision, that the termination of the claimant’s employment was not a dismissal and accordingly his claim under the Unfair Dismissals Acts, 1977 to 2008 failed.

In the dissenting opinion it was outlined that there was an obligation on an employer in an unfair dismissal case to show that it had acted reasonably in that dismissal. Direct evidence was given by witnesses for the employer that the claimant was an excellent worker and “a gentleman”. The employer decided to terminate the employment of the claimant after the absence of the claimant from work due to sickness. The employer in evidence stated that it made no attempt to contact the claimant to ascertain when he intended to return to work. The employer gave evidence that it dismissed the claimant when it received notification from Social Welfare stating that the claimant was seeking statutory sickness allowance. It dismissed the claimant by issuing his P45 and claimed that it was trying to help him secure this allowance by dismissing him. The claimant was given no prior notice of the dismissal or an opportunity to appeal it. Given the exemplary work record of the claimant and in the circumstances above it is clear that the employer acted in an unreasonable manner and therefore the claim for unfair dismissal should be allowed dissenter’s view.

However the majority decision of the Tribunal held there was a conflict of evidence between the parties, with the respondent clearly stating that only one medical certificate was received which was hand delivered by the claimant’s son, covering the claimant’s absence over a ten day period. That day the claimant’s son also informed the respondent that the claimant would not be returning to work. No medical certificates were received in respect of the claimant’s further absence from work. However, the claimant’s witnesses clearly stated that numerous medical certificates were furnished to the respondent covering the claimant’s absence but the respondent’s witnesses denied this. The respondent believed that the claimant was not returning to work and that he had left work due to his illness. The respondent contended that they did not dismiss the claimant and that it was only on foot of a letter from the Department of Social Welfare dated 9 June 2008 that they issued the claimant with his P45.