An obese binman suffering from asthma, diabetes and gout, who faced disciplinary proceedings because he refused to go to medical appointments set up by his employer, has lost his case at the Workplace Relations Commission.
The tribunal heard colleagues had complained the worker was refusing to empty bins and “falling asleep in the cab of the lorry” – with his line manager giving evidence that he had to go out and collect the worker after he fell asleep on the job.
In a decision issued on Wednesday, the tribunal found Kieran Glynn had neither been sacked nor forced to quit by his employer, waste management firm Ray Whelan Ltd, and that Mr Glynn had not been subject to discriminatory harassment or victimisation because of his weight, breathing issues or other maladies and rejected his statutory complaints.
Mr Glynn’s lawyers said their client, who had been with the firm 22 years, was “fit to work” in spite of diagnoses of medical obesity, asthma and diabetes.
After he went out sick with gout in February 2019, he said he turned down an offer of €10,000 to “go and get himself sorted” from the firm’s managing director because his employer would not put it in writing.
William Maher BL, appearing for the complainant instructed by solicitor Terence Doyle, said his client was “shocked” by the offer and feared it was “in effect a form of compensation to force him from his employment”.
Mr Glynn said the company’s managing director Ray Whelan told him: “A doctor would type up anything that you say to him,” when he was certified fit to work, before sending him to the company doctor – who the complainant said tested his blood for alcohol without consent.
The complainant spent seven months off sick before being allowed to return to do “menial tasks” in what he said was “a clear demotion from his position as a binman”, before the intervention of his solicitor resulted in a fresh medical assessment and restoration to working on the lorry from September 2019.
The company’s transport manager, Joe Shannon, said another worker came to him in May 2020 and said he was “unwilling to take responsibility” for Mr Glynn’s health and safety because “his mobility was poor” and he “stumbled while getting up and down from the lorry”.
The company’s barrister, Cathy McGrady BL, appearing instructed by Jill Griffin of Farrell McElwee Solicitors, said other staff members also made disclosures at this time complaining that Mr Glynn was “unsteady on his feet and out of breath”, “falling asleep in the cab of the lorry” and “refused to carry out his duties, telling others to empty the bins”.
Mr Shannon gave evidence that Mr Glynn “was made fully aware of the details and substance of the complaints” – adding that he went out himself to drive the lorry Mr Glynn was working on to confirm the details.
The parties were in dispute on the matter of whether a dismissal had taken place at all, with a conflict in evidence over what happened at a meeting between Mr Shannon and the complainant on 27 May 2020.
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Mr Glynn maintained that he was dismissed on that date by Mr Shannon, while the fleet manager insisted the complainant admitted he was “no longer physically able for the role”.
The company’s case was that it referred Mr Glynn to an occupational health specialist but the complainant failed to attend on 29th June, 2020, and went out of work the following day.
The complainant “refused to attend” appointments booked for him with an occupational health specialist in June and September 2020, stating that he was “acting on the advice of his solicitor”, Mr Shannon said.
In July, the firm asked Mr Glynn to attend a disciplinary hearing over his failure to attend the medical appointments, which was met with legal correspondence, the tribunal heard.
The company’s contention was that Mr Glynn had abandoned his employment by failing to participate in the disciplinary process linked to the medical appointments.
At the hearing, Mr Glynn’s legal team said the “numerous” medical referrals and the company’s refusal to accept the report of complainant’s own GP, along with a “lack of engagement” after he attended the company doctor were acts of harassment.
It was further submitted that he was “being targeted by management” and that there was “an attempt to build up a dossier of complaints” which were not disclosed to him.
In his decision, adjudicating officer Enda Murphy wrote that the company had “legitimate concerns” about Mr Glynn’s “physical and medical wellbeing” and that he could not accept that the “appropriate measures” put in place by the firm to get “independent medical certification” on Mr Glynn’s fitness to work amounted to discriminatory harassment – adding that the disciplinary proceedings did not amount to victimisation either.
Mr Murphy wrote that Mr Glynn’s evidence about the meeting with Mr Shannon, when he claimed he had been dismissed, “was very much lacking in clarity” and that he found Mr Shannon’s account of the conversation “more compelling”.
The finding that Mr Glynn had not been dismissed on this date shifted the burden of proof to the complainant side to make out a complaint of constructive dismissal.
Mr Murphy found that as Mr Glynn “refused to co-operate with the respondent’s reasonable attempts to have [the] occupational health assessment completed” and that he could not accept the disciplinary had been a “sham” process.
The adjudicator wrote that it was clear to him Mr Glynn “left his employment ... of his own volition” when his solicitor wrote to the company on 16 September 2020 stating it was bringing proceedings – before the disciplinary process concluded, he noted.
Mr Murphy dismissed the complaints under the Unfair Dismissals Act 1977 and the Employment Equality Act 1998 as “not well founded”.
