Employee sacked after he was pictured working on farm while sick, wins case

Dawn Meats hired detective to check on injured employee, WRC told as it awards €12,000

A farmer whose employer sent a private detective to his farm to take pictures of him working after he was injured on the job has been awarded €12,000.

The Workplace Relations Commission has been told Dawn Meats hired an investigator who spent three days carrying out “covert surveillance” of the man at his home while he was on sick leave in 2020.

A complaint by Aeron James under the Unfair Dismissals Act against Dawn Meats Ireland Unlimited, trading as Dawn Meats, has been upheld by the Workplace Relations Commission in a decision made public on Tuesday.

Mr James had claimed the internal disciplinary process which found he had been working while on certified sick leave was “lacking in procedural fairness and natural justice”.

Dawn Meats said Mr James was fairly dismissed on grounds of gross misconduct after a “thorough and fair” disciplinary process.

Mr James told an adjudication hearing late last year that he was “slammed” by a gate while herding cattle into a pen on St Patrick’s Day 2020.

He suffered “severe bruising” to his back and leg from the impact and was certified unfit to work two days later by the company doctor, he said, who told the firm to tell him to come back on April 20th.

Siptu organiser Rachel Hartery, who represented Mr James, said her client was summoned by letter to an investigation meeting into “allegations of breach of trust and dishonesty” on April 21st.

The company indicated “its suspicions had been aroused” when Mr James had agreed to sell hay from his farm to the company while he was out sick.

Mr James told the hearing that Dawn Meats’ procurement manager contacted him looking for a consignment of hay as animal bedding, which he had provided before.

He said his wife and children loaded his trailer and he drove it to the site where it was unloaded by an employee of the meat company.

Then Mr James said he was presented with 60 photographs “taken covertly by a private investigator” of him at his farm.

He said these showed him carrying out “chores” on his farmland from the 7th to 9th April 2020, some 20 days after his accident at work.

The HR officer gave evidence that the private eye was hired after Mr James delivered the load of hay while out sick.

She said they showed him carrying buckets and bags of meal and loading a trailer on the farm.

Mr James said these were only “menial” tasks and disputed Dawn Meats’ contention that they were “more labour-intensive than the duties associated with his job”.

He said he had “no option but to carry out these tasks and tend to his animals regardless of the fact that he was certified unfit to work”.

Disciplinary process

His union representative, Ms Hartery, wrote to the company two days after the disciplinary hearing to object to what Mr James considered the “procedurally-flawed manner” in which the disciplinary process was being conducted and to object to the use of covert surveillance at his property, he said, but they received no response.

Ms Hartery argued it was of note that the investigation report was “retrospectively compiled” and had the same date as an invitation on April 27th 2020 to a disciplinary investigation meeting issued by a more senior HR officer in the firm.

She argued it was “bizarre” that this HR officer carried out a further investigation when the report was issued, adding that Dawn Meats had “failed to separate the investigation from the disciplinary process”.

Ms Hartery added he should have been allowed to be represented by his trade union at the initial hearing.

He said he was dismissed at a meeting on May 7th 2020 on grounds confirmed in writing as a “fundamental breach of trust and honesty”.

It was Mr James’s position that the site manager who rejected his appeal was “not the appropriate person to hear it as the manager had “instigated the initial investigation”.

Ms Hartery said the investigation was procedurally flawed because it was carried out without her client’s knowledge using covert surveillance - with matters deliberated on and decided before he was informed.

She called it a “box-ticking exercise to create the illusion of a fair process”.

‘Natural justice’

Ibec employer relations executive Robin McKenna, who appeared for Dawn Meats argued the firm “adhered to the principles of natural justice and fair procedures at all times”.

It was the regional HR manager’s evidence that he believed the work Mr James was photographed doing on his own farm were “more strenuous and labour intensive” than his role with Dawn Meats.

The witness said he did not obtain a medical assessment of Mr James before dismissing him, but formed the view that he “shouldn’t have been able to carry out the work he was depicted doing”.

The company’s operations manager said he took the decision to hire the private eye after Mr James brought hay to the company’s site, but denied having seen the photos or a draft of the HR officer’s investigation report.

He disputed the complainant’s argument that he was not impartial or independent in hearing the appeal of the disciplinary process.

In his decision, adjudicating officer Enda Murphy found Mr James had not been properly informed of the nature of the allegations of gross misconduct against him when he was suspended in advance of the first disciplinary meeting.

He wrote that Mr James was “confronted” at the meeting with allegations about a “pattern of absenteeism” and that he had been working on his private farm while out sick.

The failure to provide advance details was in breach of Dawn Meats’ disciplinary policy, he wrote, adding that Mr James was “totally unaware of the precise nature of the allegations”.

“I also have grave concerns in relation to the manner in which the allegations of gross misconduct were presented to the complainant at the investigation and disciplinary hearings,” he wrote.

“It is clear that there was a lack of clarity throughout this process in relation to the precise nature and extent of the charges that were being pursued against him,” Mr Murphy added.

He also found there were “procedural shortcomings and irregularities” in the investigation and disciplinary process, with the regional HR manager and the operations manager having “a multiplicity of roles”.

This raised doubts about their impartiality and independence of the process - and consequently the fairness of the process, he wrote.

Mr Murphy added that Dawn Meats “did not consider or make allowances for any mitigating factors put forward by the complainant or alternatives to dismissal”.

There was no dispute that Mr James had carried out tasks on his farm, Mr Murphy wrote, but Dawn Meats had “scant regard” for their former employee’s explanations.

He found dismissing Mr James was “disproportionate” and “did not fall within the range of reasonable responses” open to the company and therefore both substantively and procedurally unfair.

Mr Murphy awarded €10,000 to the complainant for unfair dismissal and a further €2,556,62, six weeks’ pay, for failing to provide statutory notice entitlements under the Minimum Notice and Terms of Employment Act.