UD529/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF: CASE NO.

Ashley Fitzgerald UD529/2013

-appellant

against the recommendation of the Rights Commissioner in the case of:

Ashley Fitzgerald

-v

Chief State Solicitors Office

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms N. O'Carroll-Kelly BL

Members: Mr. J. O'Neill

Mr. T. Brady

heard this appeal at Dublin on 22nd May 2014

and 3rd September 2014

and 4th September 2014

Representation:

Appellant: Mr. Paul Mac Sweeney, CPSU, 19/20 Adelaide Road, Dublin 2

Respondent: on 22nd May 2014: Mr. Gearoid Browne, HR Manager, Chief State Solicitors Office, Osmond House, Ship Street Little, Dublin 2. On 3^rd & 4^th September 2014: Ms Eilis Brennan BL instructed by Charles Wallace solicitor c/o Chief State Solicitors Office, Osmond House, Ship Street Little, Dublin 2

Background:

This case is before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner, ref: r-127571-ud-12/JC, under the Unfair Dismissals Acts, 1977 to 2007.

Preliminary point:

The Tribunal heard evidence as to a preliminary point as to whether the appeal was submitted within the six month period as stipulated in the Unfair Dismissals Acts, 1977 to 2007 or within one year if the appellant could show that exceptional circumstances prevented the lodgement of the appeal.

Preliminary point Determination:

The appellant was dismissed from her position on the10th February 2011, by letter addressed to her Union representative PM’S. Enclosed in her dismissal letter, was circular 14/2006 and the appeals process was made known to her. Under that process the appeal against the decision to dismiss was to be made within 10 days from the date of the decision to dismiss. The appellant lodged her appeal within the 10 day period. Her appeal was heard on 14^th May 2012 and the decision of the Appeals board was 10^th July 2012 upholding the decision to dismiss.

The respondent argued that the time for the purpose of S 8 (2) of the Act commenced running on the 10^th February 2012 and not on 10^th July 2012. He stated that the appellant still had one month from 10^th July to lodge her appeal with the Rights Commissioner. To adopt such a principle would be to deny the appellant her Statutory Rights pursuant to S 8 (2).

If the respondent appeal process had not completed until after 10^th August 2012, based on the proposition put forward by the respondent, then the appellant’s appeal would be Statute barred before she actually had an appeal.

The Tribunal are satisfied that the time for the purposes of S 8 (2) cannot start to rununtil all elements of the disciplinary process are exhausted. In this instance that is 10^th July 2012. The appellant lodged her appeal with the Rights Commissioners on the 31^st October 2012, well within the six month time period.

Substantive case:

The Tribunal heard evidence from the HR manager of the respondent and other witnesses for the respondent. The Tribunal heard evidence from the appellant.

The following is an outline of the main points and timeline of events:

05^th January 2010	Dr. D of the CMO Department advised that Ms. F was fit for duty
18^th January 2010	Ms. F declined to attend a meeting to discuss her return to duty
26^th February 2010	Ms. F advised at a meeting to discuss her return to duty that she would not be available to return to duty until Sept/Oct 2010
25^th June 2010	Dr. M of the CMO Department proposed two solutions, namely to consider modified duties or the possibility of a transfer to another section
04^th November 2010	Dr. M of the CMO Department advised that Ms. F's current condition and previous condition should not preclude her from attempting to return to work, as soon as can be arranged, on a part time basis.
15^th November 2010	There was a meeting to discuss Ms. F's phased return to duty in the SPD. As set out above on page 1, misunderstandings arose as to the date upon which she was expected to start back to work and a letter was sent by the HR Department indicating an intention to instigate a disciplinary process.
06^th December 2012	Mr. B, Ms F’s HR manager expected that Ms. F would return to work on this date, as this had been discussed at a meeting on the 15^thNovember 2010, and he understood that it was agreed. Mr. Mc S stated that subsequently there had been a suggestion by Ms. F that she return to work later in December 2010, after a Consultant's appointment
07^th December 2010	However, when Ms. F failed to return to work on the 6th December 2010, Mr. B sent a letter dated 07.12.10 indicating that he intended instigating a disciplinary process. Unfortunately Ms. F took exception to this and required that this 'threat' had to be withdrawn before she was willing to return to her work
21^st February 2011	Ms. F was again directed to return to duty. She was invited to attend a meeting on 11.02.11 to discuss her return and address any of her concerns. No meeting took place.
27^th July 2011	Ms. F was again requested by registered correspondence to return to duty on 29.08.11 and invited to attend a meeting on 11.08.11 or an alternative date which would suit all parties to finalise her return to duty. Ms. F did not avail of a meeting, nor did she return to work on 29.08.11.
19^th September 2011	Ms. F was again requested to return to duty on 03.10.11. A list of proposed duties was attached and a summary of the steps taken by the office to facilitate Ms. F's return to duty. Ms. F was provided with an opportunity to meet, discuss and finalise arrangements. Ms. F did not avail of a meeting, nor did she return to work on 03.10.11.
07^th October 2011	Ms. F was finally advised to return to duty on 07.11.11. Ms. F was provided with an opportunity to meet to discuss any issues outstanding. Ms. F was advised that if she failed to return to duty on 07.11.11 or alternatively, failed to submit a medical certificate that the process to terminate her employment would be initiated as she would be deemed to have abandoned her post.
07^th October 2011	Ms. F was advised that if she failed to return to duty on 07.11.11 or failed to submit a medical certificate that the process to terminate her employment would be initiated as she would be deemed to have abandoned her post. This was the fifth occasion upon which she was required to return to work.
04^th November 2011	Mr. Mc S was advised by the HR Manager that the Office would initiate the process for Ms. F's dismissal if she failed to attend for duty on 07.11.11
07^th November 2011	Ms. F did not report for duty or submit a medical certificate
21^st November 2011	Ms. F was advised that the HR Manager was drafting and preparing to submit a proposal recommending that Ms. F be dismissed.
21^st November 2011	The HR Manager gave notice by registered post to Mr. Mc S that he proposed to submit a written report to the appropriate authority recommending that Ms. F be dismissed. The HR Manager advised that he did not propose to submit this report for a period of 10 working days so as to facilitate Ms. F with an opportunity to submit any representations she may wish to forward. No representations were received, other than in relation to a transfer or a different Department
20^th December 2011	Mr. B forwarded a written report to the appropriate Authority and recommended Ms. F's dismissal as she was deemed to have abandoned her post.
08^th February 2012	The Director General of the Office of the Attorney General, after having examining the documentation submitted, advised that Ms. F should be dismissed.
10^th February 2012	Mr. B advised Mr. Mc S that the Director General of the Office of the Attorney General had decided that Ms. F should be dismissed forthwith from her post. A copy of circular 14/2006 was enclosed. Mr. Mc S's attention was drawn to the appeal process set out in the circular and the related time lines.

Determination:

The Appellant had two periods of sick leave commencing on the 9^th April, 2009. She complained about issues at work which she believed caused her a physical injury. There was no medical evidence adduced to support that view. On the 27^th April, 2009 the respondent engaged the services of a specialist. She carried out an inspection of the workplace and interviewed the appellant following which she prepared a report and recommended several changes to the appellant’s workspace. All of the recommendations were implemented save for one, the electronic staple remover. The appellant in evidence made an issue of the fact that she believed the report to be deficient in areas however she never made that known to the respondent at the time. After the implementation of the recommendations a long and protracted series of events unfolded whereby the respondent tried everything to facilitate the appellant and the appellant found fault with each and every suggestion. Furthermore, she placed obstacles in the way of every attempt to get her to returning to work. From the 06^th December 2010 the appellant failed to return to work and failed to submit medical certificates. The CMO certified her fit to return to work in November, 2010 and she did so with full knowledge of all of the appellant’s medical conditions. If the appellant felt that she wasn’t fit to return it was open to her to submit a certificate contradicting the CMO’s opinion. She failed to do so. She was given five separate chances to either return to work or to submit a medical certificate. The appellant made the choice not to engage with the respondent at all. In evidence the appellant stated that the reason she did not return to work was because the respondent had threatened her with disciplinary action. However, the Tribunal note that at that stage there was no disciplinary action pending. Even if there was, it is not for the appellant to unilaterally decide the matter was unfounded and demand it be discontinued. She had an obligation to engage with her employer and cooperate in any investigation into the matter. To take the stance of refusing to return to work and refusing to engage with the respondent is totally unacceptable.

The Tribunal find that the Respondent went over and above its legal obligations to facilitate the appellant. It was patently clear from the evidence that the appellant was not going to return to work and was not going to engage with the respondent until all of her demands were met. The appellant had an obligation to her employer to submit medical certificate if she was unfit for work or alternatively to attend for work. She failed in her obligations to her employer.

The appellant’s appeal under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)