Man accused of ‘stealing’ from employer for taking sick leave over back injury awarded €10,000
The fresh produce employee took a case against his former employer to the Labour Court.
A FRESH PRODUCE employee accused of “stealing” from his employer after it was wrongly claimed that he faked a back injury has been awarded €10,000.
This week, the Labour Court overturned a decision by the Workplace Relations Commission from last year, when the Polish employee unsuccessfully brought a case of unfair dismissal against his former employer.
The original claim was brought following an incident on 11 September 2016, when the employee injured his back while lifting a box of apples from the top of a pallet at work.
He subsequently took six weeks sick leave, during which the company’s health and safety manager investigated the incident that led to his injury.
The health and safety manager told the court that she examined CCTV footage of the incident, hired a private investigator and spoke to the employee’s managers.
The man’s managers mentioned that a recent change in the man’s roster had been causing difficulties in his ability to provide care for his children.
At a hearing last year, the WRC also heard that the private detective saw the complainant “carrying his daughter” one week after the incident that led to his injury.
The commission also heard that the health and safety manager said CCTV footage of the incident showed the worker lifting and dropping the box of apples in a “staged and orchestrated way”.
Giving evidence to the court, the manager confirmed this again, and reiterated her belief that the employee’s injury was a “fabrication” and that he should not have been paid for his time off as a result.
However, the health and safety manager also told the court that she did not interview the employee as part of her investigative process, adding that she also compiled her report into the incident that led to his injury before she interviewed a witness.
On 1 November, 2016, the employee was invited to a formal investigation meeting with his shift manager, who had access to CCTV clips of the incident and witness statements, neither of which were supplied to the employee.
The court heard that the shift manager’s report concluded that it was “coincidental” that the employee had an accident on the same day that his roster had changed.
The report also claimed the employee was “inconsistent in relation to whether he hurt his middle or lower back” and said that CCTV footage showed hum “walking freely after the incident”.
It concluded that the employee was “dishonest” in reporting his injury, and recommended that the matter was put forward for a disciplinary hearing, following which the employee was dismissed for serious misconduct without pay.
Giving evidence, the complainant told the court that he had only received a copy of the health and safety manager’s report prior to his dismissal.
He also confirmed that he had not seen CCTV footage of the incident or been interviewed as part of the investigative process.
The employee disputed the findings of the investigation which claimed that he did not hurt his back, and said that he had attended two occupational health practitioners and submitted a report from his own GP to his employer.
He claimed that the initial report into the incident that led to his injury was flawed and should not have been relied upon during the disciplinary process.
He added that when he was dismissed, no reason had been given for upgrading his initial sacking with six weeks pay to dismissal for serious misconduct without pay.
In her ruling, the court’s deputy chairperson, Louise O’Donnell said the company’s failure to provide the employee with documentation in relation to his dismissal raised issues about how the employee could answer the charge being laid against him.
Of particular concern, she said, was the inclusion of issues related to the employee’s new roster in the report into his injury, which was written without any engagement with him.
She also expressed concerns about how the decision to dismiss the employee was made, describing the process as “at best confused”.
The court ruled that the employee’s dismissal could not have been deemed to be fair in the circumstances, and ordered the company to pay him €10,000 in compensation.