EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paola Bagaglia UD1183/2014
against
Mater Misericordiae University Hospital
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. L. Tobin
Mr J. Flannery
heard this claim at Dublin on 20th October 2015
Representation:
_______________
Claimant: Mr Peter Connolly, Peter Connolly Solicitors, First Floor,
6 Capel Street, Dublin 1
Respondent: Ms Anne Byrne, IBEC, 84/86 Lower Baggot Street, Dublin 2
Background:
The claimant worked with the respondent for a period of seven years. In September 2013 she received urgent communication that her husband had been diagnosed with cancer in Italy. She immediately sought unpaid leave. It was initially granted for a period of one month and then for a further 5 months. At the end of this period she sought another six months by way of e-mail and told the respondent that after that period of time (September 2014) that if she could not return to work she would then offer her resignation. The respondent could not approve the additional six months but advised her in writing and by e-mail that only one further month could be approved. At the end of the additional month of unpaid leave the respondent e-mailed her enquiring about her intention to return on 23rd April 2014. No response was received from the claimant and the respondent considered her “resigned”.
Respondent’s case:
PD director of the centre told the Tribunal that the claimant was a good employee. The claimant came to him on 19th September stating that her husband was seriously ill and she required time off to take care of him. PD immediately approved unpaid leave and supported her in any way he could. The initial period of one month was extended to six months at the claimant’s request. PD said it was a challenge to run the centre without her but did so with the aid of an agency worker. His next communication with the claimant was an e-mail on 3rd March 2014 when she requested a further six months extension of her unpaid leave. That e-mail also noted the claimants intention to resign in August should her situation not change. He replied on the same day stating that unfortunately he could not agree to the request but was willing to give an additional one month’s leave (up to 23rd April 2014). He didn’t receive a reply and all follow up was done by HR.
When asked whether it was an option to continue with agency workers for a further six months he said that the unit needed continuity and it takes time to find the right person with the right skill sets and for that person to be trained. He also stated that a maximum of six months unpaid leave was HR policy. When the claimant didn’t return to work or make contact on the date specified he assumed she wasn’t coming back. He had no further contact with the claimant and never undertook to contact her to enquire about her return to work.
RS HR supervisor confirmed that she processed the claimant’s leave applications but that she did not speak directly to the claimant. All correspondence was done by e-mail as the claimant was abroad however RS also sent correspondence to the claimant at her address in Kildare. The letter (dated 12th March) allowing one final months leave was sent via e-mail and post.
RS e-mailed the claimant again on 7th April asking her to confirm that she was resuming duty on 23rd April. She received no reply. On 15th April she advised PD that in the absence of any reply from the claimant, she would have to be processed as a leaver. RS wrote to the claimant on 30th April 2014 at an address in Dublin 1. She stated this was the claimant’s official address as it appeared on her 2007 contract and that address was not formally changed since then. This letter was not sent via e-mail and was not sent to the claimants most recent address on file in Kildare. The letter stated that the respondent understood her to have resigned her post as she did not resume for duty on 23nd April. It would not have been unusual for employees on extended unpaid leave to have done so in the past i.e simply not turn up for work.
PS was asked if she advised the claimant of the availability of alternative forms of leave (as opposed to the six month unpaid leave option) including carers leave or force majeure leave which could have afforded the claimant an option of a longer period of leave. She stated that her role was to process the leave requested and was not asked about any alternative options. She stated that the claimant arrived in her office on 5th August, and she was upset. The Employee Relations Officer happened to be passing and she left the matter in his hands from then on.
GL the Employee Relations Officer and deputy director of Human Resources told the Tribunal that he was not aware of the situation and had no involvement until he happened to be passing RS’s office on 5th August. It was clear the claimant was upset and it was difficult to get information from her. He asked for her contact number and began gathering the facts. He was on annual leave from 8th August and rang her on 18th on his return. The call was answered by the claimant’s husband and he was advised that the T1A Complaint form had already been lodged to the Employment Appeals Tribunal.
Claimant’s case:
The claimant PB gave evidence of having received the news of her husband’s diagnosis of a rare form of cancer and her immediate application for unpaid leave. Her husband was receiving treatment in Italy and she needed to travel there immediately. She made it clear to PD and his secretary that she did not know how things were going to go and couldn’t think long term. She gave evidence of having to travel to Rome where her husband was in hospital from her home place (a lengthy journey) and at the same time having to look after her two children. It was a difficult time with a lot of upheaval.
PB said that she was unaware of any six month policy regarding unpaid leave, she assumed it was 12 months as she was a public sector employee. In her e-mail she did say that if there was no change by August 2014 she would resign. She did not receive PD’s e-mail reply of the same day as it went into a spam folder and said that she would of course have replied if she had seen it. In early May when she had some time to herself and things had calmed down she tried to access her work e-mail folder but the account was closed down. It was only when her husband collected mail from the Dublin 1 address in June/July that she realised she no longer had a job. She also stated that her post from the Kildare address was re-directed but she did not receive the previous letters sent.
PB said that she took a couple of weeks to decide what to do and then came to Ireland. She went to the PD’s office, he wasn’t available so she then went to the HR department. Her conversation with GL was a blur, she didn’t even remember what he had said to her.
Asked under cross examination whether or not she received the correspondence sent to the Kildare address she said that maybe she did but read it incorrectly. She assumed that the leave had been granted in the circumstances. She repeated that she thought that because she was a public sector employee she was entitled to 12months leave and this would be available in Italy. She further indicated that she was not aware of any alternative leave options such as carers leave. Asked if she would have been available to return to work in August 2014 she said that she would. She gave evidence of loss.
Determination:
The Tribunal carefully considered the evidence presented by both parties. The dismissal was not actually disputed by the respondent therefore the onus is on it to show that the dismissal was fair and reasonable in all of the circumstances. Following a period of six months unpaid leave the claimant sought a further six months to care for her husband during his illness in Italy. By letter dated 12th March 2014 she was approved for a further months leave and was asked to return to work on 22nd April 2014. It appears to the Tribunal that the claimant did get this letter at some stage (as her post from Kildare was forwarded to her Italian address) but for whatever reason did not reply to it. By letter dated 30th April 2014 the claimants employment was terminated on the assumption that because she did not return to work by 23rd April she effectively resigned her position. Bizarrely this letter was sent to an address on the claimant’s 2007 contract and not the address RS had previously been corresponding with the claimant at. The claimant did not become aware of this letter until June 2014.
The Tribunal recognise that the respondent was placed in a difficult position as the claimant did not adequately communicate her intentions to her employers and did not respond in any meaningful way to correspondence sent. Furthermore, her evidence on this point was less than satisfactory. However, at no stage during the correspondence or emails sent in March 2014 was the claimant notified that if she did not return to work by the end of April 2014 her job was at risk or in fact she would be dismissed from her job. In fact there seems to have been no formal procedure adopted whatsoever in ending the claimant’s employment. It also seems unusual to the Tribunal that following a period of seven years service with the respondent that nobody, including her direct manager, thought to telephone the claimant to ascertain her position. RS was left in a difficult position in that her role was to process the claimants unpaid leave request whereas GL, as deputy director of HR, does not seem to have any knowledge of or input into the situation pre-August 2014. In all of the circumstances the Tribunal believe that the claimant was dismissed and that dismissal was unfair.
However, the Tribunal also believe that the claimant contributed significantly to her own dismissal by her actions in not communicating her intentions effectively to her employer and not remaining in adequate contact during the course of her leave. It was accepted by the claimant that she received the letter of 12th March allowing her a further months leave but gave no explanation as to why she did not reposed to it. It was not entirely reasonable on her part to simply assume that because she was a public sector employee that she was entitled to twelve months unpaid leave. The Tribunal therefore award a reduced sum of €10,000 pursuant to the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)