UD1694/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                CASE NO.

Ann Gallagher                                                                                                            UD1694/2013

                                                -   Claimant

Against

Donegal County Council

                                                                        -   Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr. A. Courell BL

Members:     Mr. D. Morrison

Ms. R. Kerrigan

heard this claim at Letterkenny on 16^th April 2015

                                                and 2^nd July 2015

Representation:

Claimant:        In Person                    

Respondent:    Sarah Hearns, Local Government Management Agencies, Local Govt. House,

                        35-38 Usher’s Quay, Dublin 8

Preliminary Issue

At the outset of the hearing the representative for the respondent raised a preliminary issue in respect of the six-month time limit to file a claim under the Unfair Dismissals Acts, 1977 to 2007.

The claimant filed the Workplace Relations Complaint Form to the Employment Appeals Tribunal on the 6^th December 2013. She contends the date of her resignation was the 7^th June 2013. The respondent contends the date of the claimant’s resignation was the 22^nd May 2013. The claimant and the Human Resources Manager for the respondent gave sworn evidence in respect of this issue.

The Tribunal carefully considered the detailed evidence adduced and the correspondence opened by both parties in the matter of the time issue and finds the claim is within the time limit as set out in the Act and can therefore hear the substantive matter.

Summary of Evidence

The claimant worked for the respondent, a County Council, from the 15^th of February 1999. She felt that she was constructively dismissed by way of forced retirement as of the 7^th of June 2013.

The claimant was on sick leave from December 2007. Due to her continued absence the claimant was asked by letter of the 1^st of October 2012 to undertake a medical assessment. Following the results of the independent assessment the claimant wanted to seek her own Consultant’s opinion on the findings of the medical report and informed the respondent of this by letter dated the 12^th of December 2012. In a letter of the 21^st of January 2013 the respondent acknowledged this request and was awaiting further correspondence in relation to same. In March 2013 the respondent received the consultant’s report which suggested the claimant “probably would be able to carry on in her work” and required further medical investigation.

The respondent informed the claimant by letter dated the 21^st of January 2013, ‘as you are aware, the independent medical opinion received by the Council has indicated that you will not be able to return to work with the Council at any future date.’ The claimant was informed that according to policy they could no longer continue to pay her the pension rate of pay.   A Management Order dated the 8^th of February 2013 implemented this decision.

By letter of the 21^st of January 2013 the respondent again put forward the option of the claimant’s retirement on medical grounds (initially put forward in December 2012), the pension and lump sum calculations were provided to her. The claimant was declared “permanently unfit for work” by her GP in April 2013 and the GP also requested that the claimant be offered early retirement; this letter was unsolicited by the respondent and the claimant denies requesting her GP to write this letter to the respondent.

The claimant signed the application form for early retirement on the 20^th of May 2013. She then decided it would be better for her to take a career break rather than early retirement; this option should have been offered to her by the respondent. The claimant applied in writing for the career break on the 5^th of June 2013. The claimant maintains that to avoid this situation a part-time position should have been found to accommodate her working less hours. The staff welfare officer was not helpful in the claimant’s opinion and witnessed her unfair treatment.

The respondent was aware only post retirement that the claimant was unhappy with the situation. The claimant’s early retirement application was accepted and processed and a Management Order affecting the retirement was signed on the 7^th of June 2013. Further correspondence ensued between the parties.

Determination

The Tribunal carefully considered all of the evidence adduced at the hearing. The claimant was on long term sick-leave from 2007. By 2012 the respondent had no option but to invoke the sick leave policy and seek an independent medical assessment. Although the respondent endeavoured to get the claimant back to work, all of the medical evidence provided indicated she was unfit for work and finally that she needed further medical investigations. The Pension related pay was discretionary and had to be stopped as there was no indication that the claimant would ever be in a position to return to work.

While the Tribunal has sympathy for the claimant’s situation, the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.

The Tribunal note that the respondent agreed at the hearing to provide the claimant with an employment reference.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)