Case Number: ADJ-00007559. Workplace Relations Commission

• Docket Number: ADJ-00007559
• Hearing Date: 06 December 2017
• Date: 03 May 2018
• Court: Workplace Relations Commission
• Parties: A Warehouse operative v A logistics company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007559

	Complainant	Respondent
Anonymised Parties	A warehouse operative	A logistics company

Representatives Cathy McGrady BL Conor O'Gorman, IBEC

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00010132-001	08/03/2017

Date of Adjudication Hearing: 06/12/2017

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act 1977, this complaint was assigned to me by the Director General. I conducted a hearing on December 6th 2017 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.

The complainant was represented by Ms Cathy McGrady BL, instructed by Ms Claire Lambert of Hennessy and Perozzi Solicitors. The respondent was represented by Mr Conor O’Gorman from IBEC accompanied by Ms Amanda Sun. The complainant was the only witness for his case. For the respondent, the Warehouse Team Manager, the General Manager and a HR Generalist attended the hearing and gave evidence.

Background:

The respondent is a subsidiary of a company engaged in growing, purchasing and distributing fresh produce in Ireland and Europe. The complainant is a Lithuanian national and he commenced employment on May 11th 2010. He worked as a warehouse operative in a third-party distribution centre operated by the respondent on behalf of a major grocery retailer. Having gone out sick on May 15th 2016, over the next 11 weeks, the complainant submitted certs stating that he was suffering from a knee injury or a knee and shoulder injury, or in one case, just a shoulder injury. His absence coincided with him having to move out of his apartment in Santry so that it could be treated for pyrite. During the re-construction, he moved temporarily to live with his brother in Tallaght. The complainant returned to work on August 8th and an investigation commenced into his absence and his failure to comply with the company’s occupational health procedures. He was dismissed on September 9th 2016.

Summary of Respondent’s Case:

Background to the Complainant’s Dismissal On May 15th 2016, the complainant went absent from work and did not notify his manager, as he was required to do in accordance with the company’s absence procedure. He submitted a certificate from his GP on May 23rd, and followed up with weekly certs until August 7th. In all, he sent in 11 medical certs and copies were presented in evidence at the hearing. On the certificates, the complainant’s doctor states that he is absent from work due to: “Left knee injury” – 2 certs, May 22nd and 29th “Left shoulder injury + knee” – 3 certs, June 5th, 12th and 19th “Left shoulder injury” – 1 cert, June 26th “Left knee & shoulder injury” – 3 certs, July 3rd, 17th and 24th “Left shoulder & knee injuries” – 2 certs, July 31st and August 7th On June 17th, the complainant failed to attend an appointment that had been arranged with the company doctor, despite a letter being sent to him and a phone message left to request him to attend. When he didn’t attend, his sick pay was suspended and he was requested to contact the HR Generalist. This HR Generalist gave evidence at the hearing. The complainant contacted her on June 29th and her e mail to the HR Manager records that the complainant phoned her and said that “there is no requirement for him to attend the company doctor as the issue is exactly the same as previously with his shoulder and knee and the doctor has all the detail on his file.” The complainant confirmed that he would attend the company doctor on July 5th, but again, did not attend. On this occasion, he said that he couldn’t afford to travel to the doctor on the Long Mile Road, as his sick pay had been suspended. A third appointment was arranged for July 20th, and having initially complained that he could not drive due to his sore knee, the complainant attended the company doctor this time. The doctor’s report notes that, at the consultation, the complainant informed him “his knee now feels better and he is looking to return to work.” He also told the doctor that he was absent only due to a pain in his knee and that his own doctor had made a mistake referring to his shoulder injury. He injured his shoulder in 2013 and had a fall in 2014, injuring his knee. Following one of these injuries, he was absent for three months, but this recent absence was only related to his knee. The company doctor recommended that the complainant could return to work for two weeks on a half-time basis, and after that, on full-time hours. He was expected back to work on July 25th, but he told the HR Generalist that he would be back on August 2nd. He returned on August 8th, explaining that his “plans changed.” Investigation into the Complainant’s Conduct during his Absence On his return to work, the complainant was requested to attend a meeting with the Warehouse Team Manager to investigate his conduct during his absence and his failure to comply with the company’s absence procedure. A meeting took place on August 15th. Although he was invited to bring a union representative or a colleague, the complainant attended unaccompanied. At the meeting, he claimed that he didn’t receive the pack of documents sent to him in preparation for the investigation, but, when he was challenged, he accepted that he had received the documents. During the meeting, the documentation was reviewed and the discrepancies related to the complainant’s absence were discussed with him. The complainant had also been refusing to sign briefing documents required for audit by the client company. When he was questioned about this, he said that he didn’t work for the client and should not have to sign their documents. He was asked by the...