ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000796

Complaint for Resolution:

Date of Adjudication Hearing: 4th May 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 1^st December2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complainant was a shop worker and the respondent is a chain of bookmakers.

The complaint was scheduled for adjudication on the 4^th May 2016. The complainant attended in person and was accompanied by a family member. Three witnesses attended for the respondent.

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Respondent’s Submission and Presentation:

At the outset of the adjudication, the HR manager clarified the name of the respondent as it had recently been subject to a merger. She outlined that the complainant had gone on sick leave in or around the 19^th February 2015 and she was dismissed on the 19^th November 2015. She had worked in a named branch of the respondent and had done so since the 27^th November 2006. Her wage was €495 a week gross.

The respondent outlined that the reason for the dismissal was the failure of the complainant to engage with it during the period of absence. No medical certificates had been submitted between February and May 2015. There was a reply from the complainant on the 21^st May where she submitted backdated certificates. Further certificates were submitted on the 17^th June. On the following day, she asked the complainant to make contact with a named District Manager and it was made clear that certificates had to be submitted on a weekly basis.

In respect of the respondent’s sickness policy, the respondent outlined that this provides for a nine-month period to allow a sick employee recover and return to work. The HR manager said that this was policy was not sent to the complainant and it was submitted to the adjudication. The complainant's certificates were based on stress and she had reached the end of the nine months. It outlined that the respondent does not engage company doctors and it relied on certificates provided by employees' GPs.

There was follow-up correspondence sent by the complainant on the 4^th September 2015 as well a doctor's letter on the 10^th September. The respondent wrote to the complainant on the 14^th September to say that she was in her seventh month of absence and forwarded the carer’s leave policy to her. On the 7^th October, the complainant forwarded a certificate for this month.

The respondent outlined that the decision to dismiss was based on the failure of the complainant to engage with it, in particular the failure to maintain regular contact. Any contact there had been only occurred after numerous phone calls. After the complainant was served her letter of dismissal, she was paid her accrued annual leave and received her P45.

In reply to the complainant, the respondent outlined that it had received two certificates submitted via another branch for dates in February 2015. The District Manager had said that the complainant had not been in touch and had forwarded the two certificates immediately. It was news to the HR manager that the complainant had been in touch with the District Manager. No certificates, apart from October 2015, had been submitted in advance by the complainant; the rest were all submitted late. It was always the HR manager chasing the certificates. The HR manager said that it was her policy to contact staff out on sick leave once a month and that seven reminders had issued to the complainant in the nine month period. She said that she would have engaged in a phased return for the complainant and that this was not discussed here. The respondent had not disputed the complainant's capability and there had not been any indication of her wish to return to work. It had not been the intention to cause the complainant additional stress. The issue here was the lack of engagement by the complainant.

In concluding comments, the respondent outlined that the complainant had been always late in submitting certificates, except for the month of October. The failure to engage was the key issue and a phased return would have been possible if there had been engagement. The respondent had nothing to gain in dismissing the complainant. The monthly contacts were far from being harassment.

Complainant’s Submission and Presentation:

The complainant said that on the 19^th February 2015, she went on sick leave and had informed the shop manager and the District Manager of this. She had remained in contact with the District Manager between the 19^th February and the 6^th May. She had submitted certificates by email, having called to another branch to scan the documents. She was also in telephone contact with her. After she received the letter of the 6^th May, she rang the District Manager and also telephoned the HR manager to inform her of this ongoing contact. She told the HR manager that there must have been a mix-up in the respondent. She proceeded to send certificates to the HR manager. She said that she had never missed calls from this HR manager.

The complainant outlined that she could not be sure when she would be able to return to work. She had stress and anxiety, although not linked to her workplace. She said that she felt that the respondent were hassling her with regard to the certificates. She was later told that there was nine month cap on absences related to sickness. The HR manager told her that it could initiate the disciplinary process. She had not seen the Sickness Absence Policy and there was nothing in her contract. The Policy refers to sending the employee to a company doctor and this did not occur. The complainant said that she had been further stressed by the attitude of the respondent in having a return to work date. There was no discussion of a phased return. She said that carer’s leave was not appropriate for her because of her illness. In her emails to the respondent, she refers to maybe being able to return to work within six months. She also says that returning to work was something she was looking forward to.

The complainant outlined that it was very unfair to let her go after nine months. She had not received verbal warnings from the respondent and had always wanted to return to work. She clarified that she had worked for the respondent for five years and after a year's break, she returned in 2006 and had worked there since then.

Findings and reasoning:

The complainant commenced her second stint with the respondent on the 20^th November 2006 and her employment ended on the 19^th November 2015. The complainant was informed of this in correspondence of the 23^rd November 2015. The letter refers to previous correspondence, in particular the letter of the 11^th November 2015. This, in turn, refers to the complainant reaching the nine month cap for long term absence. The earlier correspondence refers to the respondent’s nine month cap and their procedures in long term absences. At the adjudication, the respondent emphasised that the decision to dismiss was grounded on the failure of the complainant to engage with the respondent.

Section 4(a) of the Unfair Dismissals Acts provides that a dismissal is not unfair if amongst other things it arises from the employee’s capability of doing the job. Lardner J. in Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184 held as follows:

“In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that

            (i) It was the ill-health which was the reason for his dismissal;

            (ii) That this was the substantial reason;

            (iii) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

            (iv)That the employee was afforded an opportunity to be heard.”

With respect to the dismissal on the grounds of failure to engage with the respondent, this is not specified as grounds of dismissal in the Sickness Absence Policy provided at the adjudication, or in the excerpts from the employee handbook. The respondent acknowledged that it had not sent the Sickness Absence Policy to the complainant. The employee handbook addresses only the situation where an employee cannot come into work on a day because of illness.

It is not in dispute that the complainant is a longstanding employee who has been promoted within the respondent. The respondent outlined that they would have accommodated a phased return had the complainant engaged with them. From the medical documentation exhibited, she had a debilitating illness. There was a conflict of fact between the parties as to whether the complainant had been in touch with the District Manager prior to the HR manager becoming involved in April 2015.The District Manager did not attend the adjudication. I resolve this conflict in favour of the complainant. She gave cogent evidence at the adjudication and I note that she responded promptly by email and telephone to every occasion the HR manager contacted her. I find as fact that she would have adopted the same approach to the District Manager.

The onus in law is on the employer to show that the dismissal was not unfair. I am not satisfied that the respondent has demonstrated this. Assessing the dismissal as one on the grounds of capability, I am not satisfied that the complainant was given the opportunity to be heard. She responded to the communications of the HR manager, but there was no meaningful engagement from the respondent. It initially raised the issues around procedures and, in the latter correspondence, refers to the end of the nine month cap. There was no reference to a phased return in the correspondence and it was not offered to the complainant. I accept that the complainant may have been reactive, rather than proactive, in her engagement with the respondent. This does not mean that she did not engage. It is also not sufficient to ground a fair dismissal without going through the standard escalating verbal and written disciplinary warnings. It does not appear that the disciplinary process was invoked at all in this case.

I, therefore, find that the dismissal was unfair. In deciding redress, I take account of the following factors. The complainant was ill and unable to work at the time of the dismissal. She indicates that she may have been in a position to return to work in the near future. She was also a longstanding employee of the respondent that the respondent said they would have assisted in a phased return.

In these circumstances, I determine that the complainant should be reinstated to her role with the respondent pursuant to section 7(1)(a) of the Unfair Dismissals Acts. This provides as follows:

“Reinstatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the reinstatement shall be deemed to have commenced on the day of the dismissal.”

The effect of reinstatement is that the complainant returns to her position at the time of the dismissal, i.e. an assistant manager in the named local branch of the respondent. She will gain the benefit of accrued annual leave, but does not acquire greater rights than she would have had, had the respondent not dismissed her. She did not have the right to sick pay at the time of her dismissal and she does not acquire this right as a result of reinstatement. After reinstatement, should the complainant not be able to take up the post, it will be open for the respondent to take whatever action is appropriate.

The redress provisions in the Unfair Dismissal Acts (i.e. reinstatement, reengagement and financial compensation) are alternatives. This provision differs from, for example, the redress provision in the Employment Equality Acts that allows for combined redress (e.g. reinstatement and financial compensation). Such combined redress is not permitted under the Unfair Dismissal Acts. Taking the circumstances of both the complainant and respondent, I believe that reinstatement is the most appropriate form of redress in this case.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Pursuant to the findings outlined in this report and pursuant to section 7(1)(a) of the Unfair Dismissals Act, I determine that the complaint is well-founded and I order that the complainant be reinstated into the position she held at the time of her purported dismissal on the 19^th November 2015.

Dated:   16^th August 2016