Case Law Reviewed - Employee Dismissed for Working on his Farm While on Sick Leave
This Case demonstrates the importance of notifying an Employee of the precise nature of any allegations to be investigated, of conducting a fair and thorough investigation and then clearly communicating the outcome of that investigation to the Employee. Mitigating circumstances must be considered during any subsequent disciplinary hearing, in determining an appropriate sanction, which must be proportionate to the particular set of circumstances. In this Case, the Adjudicator was satisfied that there were several fundamental aspects of the process which did not meet the required standards of procedural fairness.
The Complainant was employed by the Respondent as a General Operative from 7 March 2010 until 7 May 2020 when his employment was terminated on the grounds of gross misconduct. The Complainant claims that he was unfairly dismissed from his position and that the way the dismissal was affected was lacking in procedural fairness and natural justice. The Respondent denies that the Complainant was unfairly dismissed from his employment and contends that he was dismissed because of gross misconduct following a thorough and fair disciplinary process. The Complainant claims that he was summarily dismissed from his employment and did not receive his statutory notice entitlement. The Respondent disputes the claim and contends that the Complainant was dismissed for gross misconduct, and therefore, was not entitled to statutory notice.
Summary of Complainant’s Case
The Complainant submits that he sustained an injury at work on 17 March 2020 and was subsequently certified unfit for work by the Company Doctor until 17 April 2020. The Complainant stated that he sustained this injury while ushering cattle into a holding pen and that the accident would not have happened if the Respondent had been adhering to its standard procedures for this process. The Complainant stated that he was slammed by a gate and suffered severe bruising to his back and leg from the impact and was certified unfit to work by the Company Doctor on 19 March 2020. The Complainant remained absent from work on unpaid sick leave until the Company Doctor notified the Respondent directly to relay to him that he was deemed fit to return to work on Monday, 20 April 2020. The Complainant submits that he received a letter to his home from the Respondent on 17 April 2020 requesting him to attend an investigation meeting into allegations of breach of trust and dishonesty.
The Complainant was firstly presented with records in relation to his attendance at work and was questioned in relation to absences during the period from 2015 to 2019 which the Respondent contended represented a pattern of sick leave absences. The Complainant submits that the Respondent had not previously raised any issues with him in relation to these sick absences and that he was able to provide a genuine reason to explain all these absences. The Complainant submits that the Respondent then put the allegations in relation to the breach of trust and honesty to him and claimed that they had obtained evidence to indicate that he was working on his private farm while absent on certified sick leave. The Respondent indicated that its suspicions had been aroused after the Complainant had agreed to sell hay from his farm to the company while absent on sick leave. The Complainant stated that he received contact from the Respondent’s Procurement Manager on 20 March 2020 to request the delivery of a consignment of hay. The Complainant stated that his wife and children loaded the hay into his trailer and that he drove the vehicle to the Respondent’s premises on this date to deliver the hay. The Complainant stated that he was presented with 60 photographs by the Respondent at the investigation meeting which were taken covertly by a private investigator, and which showed him carrying out chores on his farmland on 7 to 9 April 2020 (which was 20 days after his accident at work).
The Complainant stated that the tasks that he was carrying out when photographed by the private investigator were only menial tasks and were not labour intensive. The Complainant disputed the Respondent’s contention that the tasks he was carrying out on his farm were more labour intensive than the duties associated to his job with the company. The Complainant stated that he had no option but to carry out these tasks and tend to his animals although he was certified unfit to work for the Respondent. The Complainant states that Mr. B wrote to him on the 27th of April 2020 and requested him to attend a disciplinary investigation meeting to further discuss the alleged breach of trust and honesty while on sick leave and that he was not allowed representation by his trade union. The Complainant submits that the Respondent failed to separate the investigation from the disciplinary process. The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by way of summary dismissal on 7 May 2020.
Summary of Respondent’s Case
The Respondent disputes the Complainant’s claim of unfair dismissal and submits that he was dismissed on the grounds of gross misconduct following a thorough and fair investigation and disciplinary process. The Respondent submits that the Complainant was invited to an investigation meeting on 16 April, 2020 to review a pattern of sick leave as well as an attempt by him to sell hay to the company while absent from work on sick leave. An investigation meeting took place on 21 April, 2020 with all the necessary documentation provided to the Complainant in advance. The Respondent submits that the outcome of the investigation was to refer the matter to a disciplinary hearing. The Complainant was invited to attend a disciplinary hearing on 30 April, 2020 in relation to this allegation and this meeting was chaired by the Regional HR Manager.
The Respondent submits that having considered all the facts and the Complainant’s response during the disciplinary process, it was concluded that his actions were in breach of the Company’s disciplinary policy under trust and honesty and amounted to gross misconduct. The Respondent submits that the decision was made to dismiss the Complainant which was communicated to him at a disciplinary meeting on 7 May, 2020. The Complainant appealed the decision via his Trade Union official and the appeal was conducted by the Site Operations Manager on 19 May, 2020. The decision to dismiss was upheld and communicated to the Complainant on 21 May, 2020.
The Respondent submits that the Company adhered to the principles of natural justice and fair procedures at all times and that the Complainant was afforded a full and fair opportunity to consider and respond to the allegations. The Complainant was afforded the right to representation at all stages and the right to appeal the decision which he exercised. The Respondent submits that the Complainant’s actions amounted to gross misconduct and represented a fundamental breakdown in the relationship of trust between the employer and employee. The Respondent submits that the Complainant contributed fully to his dismissal through his actions.
Findings and Conclusions
The dismissal of the Complainant is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Adjudicator was satisfied that there were several fundamental aspects of the process which did not meet the required standards of procedural fairness. The Complainant did not receive either written or oral confirmation or notification of the precise nature of the allegations of gross misconduct that were being levelled against him prior to the commencement of the investigation and disciplinary process. The Complainant was placed on suspension at that juncture without having been properly informed of the nature of the allegations of gross misconduct that were to be subject of the investigation. It subsequently transpired at the investigation meeting that the Complainant was confronted with two separate sets of allegations.
The Respondent did not make, or communicate, any definitive findings at either stage of the process in relation to the alleged absenteeism even though the Complainant had put forward plausible explanations to justify all the periods of absence that were presented to him.
There were procedural shortcomings and irregularities in relation to the way the investigation and disciplinary process was conducted and the conducting of the disciplinary hearing in relation to the allegations of gross misconduct that ultimately took the decision to dismiss the Complainant. The Adjudicator referred to the ‘multiplicity of roles’ played by members of the Respondent’s management team, which cast a considerable degree of doubt as to whether their participation in the process was conducted in accordance with the required levels of impartiality and independence such as to raise legitimate concerns in relation to the overall fairness and integrity of the process.
The Respondent did not consider or make allowances for any mitigating factors put forward by the Complainant or alternatives to dismissal in the circumstances of the present case. It was not in dispute that the Complainant had an unblemished disciplinary record prior to the events that led to his dismissal while he was absent on certified sick leave in March/April, 2020. Furthermore, the Complainant was not being paid by the Respondent during the period of his absence on certified sick leave.
The Complainant vehemently argued during the disciplinary process that the chores which he was carrying out were menial in nature and that he had no other alternative but to perform these tasks during the period of his sick absence because of the necessity to tend to his animals notwithstanding the fact that he was still suffering the ill effects of the injuries he had sustained at work.
The Adjudicator found that the Complainant’s dismissal was both substantively and procedurally unfair within the meaning of Section 6 of the Acts and accordingly, that the Complainant’s claim under the Unfair Dismissals Acts is well founded.
The Complainant was unfairly dismissed from his employment, and accordingly, the complaint is well founded.
The Adjudicator found that the appropriate redress in all the circumstances of the Case is compensation, and deemed an award of €10,000 to be appropriate in the circumstances. This award considers the Complainant’s actual financial loss to date and the loss attributable to future loss of earnings arising from his dismissal.
The Respondent is also ordered to pay the Complainant his statutory notice.