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Review of Recent EAT Decision: Working Whilst Certified Unfit
Published on: 06/08/2015
Article Authors The main content of this article was provided by the following authors.
David Fagan

Case Name: An Employee v An Employer (UD2361/2010) (RP3169/2010) (MN2303/2010)

Legislation: Unfair Dismissal Acts, 1977 TO 2007, Redundancy Payments Acts, 1967 TO 2007, Minimum Notice and terms of Employment Acts, 1973 TO 2005

Jurisdictions/Subject Matter: Working Whilst Certified Unfit; Mutual Duty of Trust; Summary Dismissal


Facts

The claimant began working with the respondent as an electrician in October 2001. From 2001 until 2005 the employment relationship was one without issue.

In 2005 an issue arose in relation to the claimant driving a taxi. The claimant was in possession of a taxi plate which he used to enable him to drive in the bus lanes to get to and from work. On one occasion a colleague witnessed him driving with a taxi plate and reported it to the Company.

An agreement in relation to the issue of the claimant’s activities during working hours was drawn up in June 2005 but it was disputed whether or not same was signed. A first written warning was issued by the Company to the Claimant on 12 August 2005 in relation to driving a taxi during working hours.

The claimant maintained that everyone in his workplace knew that he had a taxi, he had received no objection to him driving a taxi and that it did not interfere with his work. He continued to drive to and from work with his taxi plates on but removed then once he got near to his workplace. He continued to drive the taxi on Saturdays.

A further issue arose in 2009 in relation to the claimant’s time keeping issues and issues regarding the wearing of protective clothing. A meeting in relation to this issue was held on 12 June 2009 with a number of attendees including the claimant, the Health and Safety Officer and the former Managing Director of the Company. The time keeping and health and safety issues were raised with the claimant who became aggressive, particularly with the Health and Safety Officer who was pregnant at the time. The claimant denied that this was the case. Either way the claimant was sent home from the meeting by the former MD.

On 16 June 2009 the claimant arrived to the office unannounced. On 17 June 2009 the former MD wrote to the claimant outlining the allegation of aggressive behaviour made against him and suspended the claimant.

An investigative meeting then took place on 24th June 2009 but the claimant did not attend. The claimant began claiming disability benefit and began undertaking extra taxi work from this point onwards. The claimant began working up to 3 nights and 5 days with no set pattern to his driving.

The Tribunal heard evidence from the Claimant’s GP who stated that in the days following the suspension the claimant attended his surgery. He was suffering from acute stress and was prescribed a low dose of valium and sleeping medication. The claimant attended his surgery again on 14 September 2009. The GP diagnosed the claimant as being very stressed and depressed and prescribed depression medication and other medications.

The claimant was served with a notice regarding breach of contract in or around January 2010. He stated initially that he ceased driving a taxi at this point but then stated that he continued to drive when he needed the money, being maybe 3 or 4 nights per month.

A further investigative meeting took place on 20th January 2010.

In April 2010 the claimant's GP was asked by the Claimant to issue a certificate that the claimant was fit to drive and he did so. The claimant told the GP that he had significant on-going difficulties with returning to work and he did not judge that he was fit to work outside of that.

A disciplinary meeting took place on 5 May 2010. At this meeting the claimant was asked if he was driving a taxi and he replied no.

A decision issued on 27th May 2010 and the claimant was summarily dismissed for working as a taxi driver whilst on extended sick leave. An appeal hearing took place on 25th August 2010 but the decision to dismiss the complainant was upheld.


Determination 

The Tribunal considered the procedures followed by the Respondent Company in (a) investigating the claim and (b) in disciplining the complainant. The Tribunal judged that while certain aspects of these procedures were unsatisfactory, these unsatisfactory aspects did not invalidate the process as a whole.

The tribunal was unconvinced by the Claimants evidence, finding that certain aspects of it lacked both credibility and coherence.

Interestingly the Tribunal stated that where an employee is working while certified unfit to work an onus is placed on the employee to clearly and satisfactorily explain and justify this to his employer. In so doing an employee must establish that his actions have not undermined or damaged the relationship of trust that is inherent between an employer and employee.

In this case the Tribunal decided that the claimant had failed to discharge this onus of proof and he had not satisfactorily addressed the breakdown in the relationship of trust that had taken place as a result of his actions. The Tribunal judged that this breakdown meant that the relationship between the parties was damaged irreparably.

The Tribunal believed that the responsibility for the breakdown lay with the claimant and therefore found that the claimant was guilty of gross misconduct. As the claimant was guilty of gross misconduct summary dismissal was appropriate and the claim under the Unfair Dismissals Acts 1977 to 2007 failed.

No evidence was presented in relation to the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 and the claim failed. The claim under the Redundancy Payments Acts 1967 to 2007 failed.


Legal Review

This decision highlights the importance of the trust based relationship in an employment setting.

The duty on both the employer and employee to maintain mutual trust and confidence in the employment relationship has emerged as an implied term in the contract of employment.

It is clear that both parties have a duty to act in a manner that is not likely to cause harm to the relationship of trust between themselves and their employer/employee. It is clear that any such behaviour will be viewed objectively and the behaviour of both parties may be taken into account when reaching a decision as to whether such behaviour was irreparably damaged the employment relationship.

A serious breach of this implied duty by an employee can result in an increased likelihood of a finding of gross misconduct against that employee. Such a finding of gross misconduct in this case validated the employer’s summary dismissal of the employee and meant that the dismissal was not deemed to be unfair under the Unfair Dismissal Acts 1997 to 2007.

Full Case Decision:
http://www.eatribunal.ie/determinationAttachments/8fadc0e3-6faa-4bde-a769-59d85108c660.pdf

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 06/08/2015