Case Number: ADJ-00010247. Workplace Relations Commission

• Docket Number: ADJ-00010247
• Hearing Date: 11 January 2018
• Date: 01 April 2018
• Court: Workplace Relations Commission
• Parties: A maintenance worker v A public transport company
• Respondent: A public transport company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010247

Parties:

	Complainant	Respondent
Anonymised Parties	A maintenance worker	A public transport company

Representatives UNITE Union The Respondent Industrial Relations Department

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013336-001	28/08/2017

Date of Adjudication Hearing: 11/01/2018

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 28th August 2017, the complainant referred a complaint of unfair dismissal to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 11th January 2018. The complainant attended the adjudication, accompanied by his father. The respondent was represented by its Industrial Relations Department. Three witnesses spoke on its behalf, referred to in this report as the Production Planning Manager, the Fleet Manager and the Manager.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant commenced employment with the respondent on the 2nd February 2001 and this came to an end in 2017. The complainant claims unfair dismissal and the respondent denies the claim.

Summary of Respondent’s Case:

The respondent outlined that the complainant’s employment came to an end in circumstances where it had no option but to deem that he had abandoned his employment. There had been longstanding attendance issues and in 2013 the complainant was placed under the care of the Chief Medical Officer due to his medical issues. It submitted that the complainant had on occasion failed to abide with the requirements of the Welfare Scheme when he was incapacitated. In July 2014, the complainant was facilitated with a new role. There were ongoing issues with the complainant’s attendance and the respondent engaged in corrective coaching with the complainant. After this situation became progressively worse, a final written warning was issued in February 2015. The complainant was out ill for 180 days in 2016 and failed to attend several medicals. The Chief Medical Officer stated his opinion that there was no underlying issue why the complainant could not attend work. On the 16th June 2016, the respondent met with the complainant and his father where he was informed that his employment was in jeopardy and that he had to improve his attendance and comply with company procedures. The complainant was facilitated with a further transfer and commenced a new role on the 18th October 2016. He was injured in a workplace accident on the 20th October 2016 and went on certified sick leave from that date. The respondent asserts that the complainant did not attend several medical appointments in February and March 2017. A manager spoke with the complainant on the 24th March 2017 regarding the serious nature of the complainant failing to attend appointments and arranged a further appointment. This was arranged for the 29th March 2017 and the appointment was sent to the complainant by WhatsApp. The complainant did not attend the appointment and did not contact the respondent. It wrote to the complainant on the 30th March 2017 to say that he had abandoned his employment. He was taken off payroll on the 29th April 2017. The respondent outlines that structures and interventions were put in place to assist the complainant. It submitted that medical certificates do not provide certification of fitness for duty. The respondent’s Welfare Book required the complainant to attend the Chief Medical Officer. It commented that the WhatsApp message of the 29th March 2017 was marked as read. The respondent said it relied on two High Court decisions in relation to no fault terminations: Bradshaw v Murphy [2014] IEHC 146 and Hughes v Mongodb Ltd [2014] IEHC 335. In correspondence exhibited by the respondent, the first formal letter to the complainant issued on the 6th November 2013 (although it is undated) following their meeting. The manager of the complainant’s reassigned place of work wrote to him on the 9th September 2014. There is a handwritten diary entry of the 23rd October 2014 following a meeting with the complainant regarding procedures. A written warning was issued on the 13th January 2015 and lasted for nine months on the complainant’s file. The respondent submitted that the complainant had been given three warnings. While the respondent has a grievance and disciplinary policy, this could not be used as the complainant failed to attend for duty. The respondent could not get him to turn up for work or to attend medical appointments. Notice pay was not paid. It said that annual leave has not been paid and the respondent accepted that this is owing to the complainant. The complainant has not disputed receiving the WhatsApp message. The respondent asked the complainant how it should communicate with him. He said that correspondence could be sent to her parents’ address and they also agreed to use social media. The respondent submitted that it went to extraordinary lengths to facilitate the complainant and the Chief Medical Officer also made numerous interventions. They met again with the complainant to explain the importance of attending work and proposed another transfer, also within the same site. The respondent could not apply process where the complainant would not engage. It submitted that capability were the grounds for this dismissal and that it met the legal requirements. It outlined that it is for the Chief Medical Office to assess fitness for work and medical certificates were not conclusive evidence. It commented that the complainant attended previous medicals while out sick and attended the meeting of the 24th March 2017. The Production Planning Manager gave evidence that he first managed the complainant in 2014 as he had been asked to facilitate his transfer. The complainant was anxious to get back to work. He started in the role in mid-2014 and there were incidents of non-reported absences. The line...