EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Mary Rita Asmussen MN511/2014
- claimant UD1022/2014
Against
Tullamore Social Services Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr T. O'Grady
Mr J. Flannery
heard this claim at Tullamore on 13th October 2015 and 7th January 2016.
Representation:
Claimant Ms. Colette Egan BL, instructed by Marianne Deely, Brian P. Adams & Co., Cormac Street, Tullamore, Co. Offaly
Respondent: Mr. Patrick Martin, Brophy & Martin Solicitors, Patrick's Court, Patrick
Street, Tullamore, Co. Offaly
The determination of the Tribunal was as follows:-
Dismissal as a fact was in dispute.
Determination:
The Tribunal has carefully considered all of the evidence together with the documentation submitted.
The claimant commenced employment with the respondent on a CE scheme on the 1st October, 2011 and remained there until her employment was terminated on the 27th December, 2013. The claimant enjoyed her work with the respondent until an issue arose between the claimant and HH on the 3rd December, 2013. That incident resulted in the claimant being hospitalised on the 5th December due to stress related symptoms. The claimant reported the issue to An Garda Siochana. Any investigations carried out by them are not a matter for this Tribunal. The burden of proof in criminal matters differs from that in civil matters. The only issue this Tribunal is concerned with is whether or not, on the balance of probabilities, the respondent has shown the dismissal of the claimant was fair in all the circumstances. The claimant was out of work on sick leave from the 5th December. 2013. On the 9th January, 2014 she received a letter from the respondent stating:
“I am writing on behalf of the Board to formally advise you that due to your current medical condition, resulting in you being unfit for work, your contract of employment with the respondent has been terminated with effect from the 27th December, 2013.
This is in order to preserve your eligibility for Community Employment. Once you are fit for work as certified by a Medical Practitioner you may return to Community Employment”.
On the 28th January, 2014 TL wrote to LA, the claimant’s son, stating:
“Ms. A’s employment was terminated as a result of a current medical condition resulting in her being unfit for work.”
It was open to the respondent to follow its own procedures in relation to the issue. It is stated at 3.2.12 of the Community Employment Procedures Manual:
“It is recommended that participants who are absent for a prolonged period of time (4 weeks or more) be suspended from the project otherwise their period of participation on CE is still being counted.”
Suspension does not interfere with an employee’s employment rights e.g service, pension, holiday entitlements etc. Termination does.
The leading case on incapacity to work is Bolger V Showering ( Ireland) Limited 1990 E.L.R 184.
Lardner J. Stated :
For the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for his dismissal;
(2) That this was substantial reason;
(3) That the employee received fair notices that the question of his dismissal for incapacity was being considered and
(4) That the employee was afforded an opportunity of being heard.
The claimant was given no notice that the issue of her dismissal was being considered. She was not given an opportunity to be heard. The respondent did not request a back to work date from the claimant. The respondent did not seek to have her medically examined in order to satisfy themselves when she might be fit to return. Furthermore, the respondent completely ignored the fact that the claimant was absent from work due to an alleged assault that took place in the workplace. The Tribunal is satisfied, based on the criteria set out in Bolger that the respondent failed to satisfy its obligations to the claimant prior to terminating her employment.
The respondent embarked on an investigation into the alleged assault. The respondent categorically denies that the assault, as described by the claimant, ever happened. TL carried out that investigation. The principles of natural justice and fairness were completely ignored for the entirety of the investigation. Neither the claimant nor HH were interviewed. Statements were not taken from them. Those who were interviewed were not asked to provide a statement nor were they asked to read and sign the statement after it was prepared. HH, the person against whom the claimant made the complaint, was asked by TL to type up the statements from notes he took when interviewing the witnesses. WAD one of individuals who was interviewed by TL took issue with the content on her statement. She did not have sight of it until this hearing. Her oral evidence corroborated the claimant’s. Her statement, having been typed up by HH, corroborated HH’s evidence. Had the witness been given her statement to read, approve and sign, at the time it was taken, this situation would not and could not have arisen. Furthermore, the respondent sought to meet with the claimant on more than one occasion whilst she was on sick leave which in itself is wrong but to add insult to injury failed to attend for those meetings. Never has the Tribunal seen a process so fundamentally flawed and unfair.
The Tribunal is satisfied that the principles of natural justice and fairness were non-existent in the respondent’s handling of the situation. Furthermore, the Tribunal finds that to have HH prepare the statements in the manner that she did was a catastrophic breach of those principles. In all the circumstances, the Tribunal finds that the claimant’s claim pursuant to the Unfair Dismissals Acts 1977 to 2007 succeeds. The Tribunal has considered the claimant’s obligation to mitigate her loss when assessing the award.
The Tribunal awards the claimant €12,500.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also awards the claimant €416.00 being the equivalent of two weeks’ pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
CHAIRMAN)