ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000625
Complaint for Resolution:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000919-001 |
18/11/2015 |
Date of Adjudication Hearing: 09/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8 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.
Attendance at Hearing:
Respondent’s Submission and Presentation:
The Facts :
The complainant continued on sick leave for the remainder of 2012. On January 22, 2013, the complainant informed Ms B that she was pregnant and that her Dr had ceased all her medication .At this meeting, the complainant was asked by Ms B to ascertain a possible return to work date from her GP. Sick leave continued up to the commencement of maternity leave, 1 July 2013 to 21 April 2014 and immediately afterwards.
“It would be helpful if Ms A could speak to her doctor and ask him to report on her condition, treatment and progress, if any to date and to outline in his opinion if and when Ms A may be in a position to return to work. Ms A. said she would ask for a report “This was followed by the submission of weekly medical certificates by Ms A.’s G.P.
The review meetings continued and on 12 March 2015, when Ms B learned that Ms A was no nearer to returning to work, a further medical report was requested “It would be helpful if the GP could give an insight to her progress and whether her GP believes she will be fit to return to work in the short, medium or long term. Told Ms A that if she was unable to provide this then the company may have to consider having her independently assessed “An undated Medical report followed which indicated an anxiety management issue being treated with medication and counselling.
- th August, 2015. This was to address:
1 Definite return to work date
2 In the absence of this, a potential company decision on termination would be made.
3 Any Medical reports or information the complainant sought to rely on.
This meeting took place in two parts and was attended by Mr C, Ms A and Ms As partner. No progress was made on an agreed back to work date and the meeting concluded with Ms As’ termination of employment, giving 6 weeks notice. The avenue for appeal was provided.
(1) An incident occurred at the store in 2012 which resulted in disciplinary action against Ms A which was linked to the period of illness taken since 2012.
(2) The complainant referred to her exclusion from a redundancy package
(3) She wished to be reinstated.
2 Evidence of Ms B (Hr Manager)
- th May 2015, and her commitment to look it up. She did not find any details of a customer complaint on the complainants file when she logged on to check. Ms B was clear that there was no reference to a customer complaint prior to the commencement of Ms A sick leave in early 2012.
Ms B confirmed that she had requested the complainant to link in with her GP, but she had not advised on Yoga .Ms B maintained the record of the back to work meetings from 2012 and managed the weekly contacts with HR. The Store did not have Redundancy offers open in 2013.
3 Evidence of Mr C (Store Manager)
- th June, 2015, where the complainant had been very upset. The decision to dismiss was informed by the complainant’s medical reports, which the company relied on. The company didn’t feel that Occupational Health Dr review was necessary. The Medical report outlined in the submission was a sufficient informant. Mr C denied upsetting the complainant and stressed that he encouraged her to bring anything she could to the meeting on 28th August to guide him in his decision making .He denied that there was any connection between the downsizing of the store and the complainants dismissal , the Drapery Dept. had closed two years previously .
Legal Submissions
- The respondent contends that the dismissal was both fair and reasonable. They opened considerable case law to the hearing , which was helpful .They argued that the Adjudication Officer should , in her deliberations follow the “ band of reasonable responses test “ developed by the English Courts to avoid an Industrial Tribunal relying on substituting their views for that of an employer. In Foley V Post Office [2000] ICR 1283, a case on absence from work, Mummery LJ stated
“The employer, not the tribunal is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response “
This was elaborated on in Anglian Home Improvements limited v Kelly [2005]ICR 242 and approved by the Irish High Court in a wrongful dismissal claim Doyle v Asilio Commercial Ltd [2008]IEHC 445.
The basis for and the application of the “ band of reasonable responses “ test is reflected in the decision of Browne Wilkinson J in Iceland Frozen Foods v Jones [1983]1 ICR 17.
“As to the alternative ground relied on by the industrial tribunal , namely , procedural unfairness, as we have said we do not think that it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural , and reach a conclusion in all the circumstances “
- in Bolger v Showerings ltd [1990]ELR 184 to the circumstances of dismissal on ill health grounds . They contended that an employer would be penalised by having to satisfy “a necessity test” for dismissal, when it wasn’t outlined in statute or in the Bolger judgement, particularly given, the introduction of Section 86 of the Workplace Relations Act 2015 on annual leave during sick leave.
- from Liz Allen v Independent Newspapers ( Ireland) ltd [2002]13 ELR 84. At all times, the respondent acted proportionately to the realities that the complainant presented, in the face of a clear lack of certainty on the complainants return to work.
- Clarification received from the respondent company
In the respondents closing remarks The respondent representative , took the opportunity to offer a welcome clarification to the hearing. Having heard the full account of the complainant’s recollection of events, the respondent team had accelerated a rapid contact with Ms M, who the complainant had recalled was standing adjacent to her when the letter was read out to her in January 2012 in the store. Ms M shared with the respondent that there was a basis to what the complainant remembered , and this assisted the company in finding a record of the matter described in parallel documentation at the store , thus confirming a legitimacy to the complainants somewhat vague recollection of detail of events . I gave the complainant a moment to allow for the benefit of this information to be absorbed and preceded with the conclusion. I acknowledge the approach adopted by the respondent in this regard.
5 Complainant’s Submission and Presentation:
“ was directly attributable to a psychological illness occasioned by the failure of the respondent to properly investigate an allegation made against the complainant and/or failing to provide any reassurance , counselling , comfort or resolution in respect of an alleged complaint against the claimant “.
It was submitted that the complainant had been disciplined, without investigation and admonished. The letter of complaint from the customer had not been made known to the complainant .She understood that that the customer in question” would continue to monitor her in respect of her conduct “. The complainant was unable to return to work without medical intervention. Recourse to dismissal was premature and unfair. If time had been allowed to prevail, accompanied by fair and proper enquiries, the claimant would ultimately be in a position to return to work.
- rd 2016, which was summarised as:
Ms A suffered from a Depressive illness from January 2012, with no history of psychological symptoms prior to this date. The GP submitted a potential for a possible causal connection between the joint stressors of her father’s illness and her negative experience at work around the same time as a possible basis for her condition.
He was optimistic of an improvement over time.
Ms A was unfit for work at the time of dismissal, at that stage; she had been met with at 4-6 weekly intervals for over three years. She had psychological condition and was pressed to return to work, when she wasn’t ready. Up to 2012, all the company assessments of Ms A placed her in the “ excellent employee” category .The incident involving the “ customer complaint “ was witnessed by Ms M and should have pronounced a reaction from the company long before the complainant reminded them of it in May
ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000625
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00000919-001 | 18/11/2015 |
Date of Adjudication Hearing: 09/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8 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:
The Facts :
The complainant continued on sick leave for the remainder of 2012. On January 22, 2013, the complainant informed Ms B that she was pregnant and that her Dr had ceased all her medication .At this meeting, the complainant was asked by Ms B to ascertain a possible return to work date from her GP. Sick leave continued up to the commencement of maternity leave, 1 July 2013 to 21 April 2014 and immediately afterwards.
“It would be helpful if Ms A could speak to her doctor and ask him to report on her condition, treatment and progress, if any to date and to outline in his opinion if and when Ms A may be in a position to return to work. Ms A. said she would ask for a report “This was followed by the submission of weekly medical certificates by Ms A.’s G.P.
The review meetings continued and on 12 March 2015, when Ms B learned that Ms A was no nearer to returning to work, a further medical report was requested “It would be helpful if the GP could give an insight to her progress and whether her GP believes she will be fit to return to work in the short, medium or long term. Told Ms A that if she was unable to provide this then the company may have to consider having her independently assessed “An undated Medical report followed which indicated an anxiety management issue being treated with medication and counselling.
- th August, 2015. This was to address:
1 Definite return to work date
2 In the absence of this, a potential company decision on termination would be made.
3 Any Medical reports or information the complainant sought to rely on.
This meeting took place in two parts and was attended by Mr C, Ms A and Ms As partner. No progress was made on an agreed back to work date and the meeting concluded with Ms As’ termination of employment, giving 6 weeks notice. The avenue for appeal was provided.
(1) An incident occurred at the store in 2012 which resulted in disciplinary action against Ms A which was linked to the period of illness taken since 2012.
(2) The complainant referred to her exclusion from a redundancy package
(3) She wished to be reinstated.
2 Evidence of Ms B (Hr Manager)
- th May 2015, and her commitment to look it up. She did not find any details of a customer complaint on the complainants file when she logged on to check. Ms B was clear that there was no reference to a customer complaint prior to the commencement of Ms A sick leave in early 2012.
Ms B confirmed that she had requested the complainant to link in with her GP, but she had not advised on Yoga .Ms B maintained the record of the back to work meetings from 2012 and managed the weekly contacts with HR. The Store did not have Redundancy offers open in 2013.
3 Evidence of Mr C (Store Manager)
- th June, 2015, where the complainant had been very upset. The decision to dismiss was informed by the complainant’s medical reports, which the company relied on. The company didn’t feel that Occupational Health Dr review was necessary. The Medical report outlined in the submission was a sufficient informant. Mr C denied upsetting the complainant and stressed that he encouraged her to bring anything she could to the meeting on 28th August to guide him in his decision making .He denied that there was any connection between the downsizing of the store and the complainants dismissal , the Drapery Dept. had closed two years previously .
Legal Submissions
- The respondent contends that the dismissal was both fair and reasonable. They opened considerable case law to the hearing , which was helpful .They argued that the Adjudication Officer should , in her deliberations follow the “ band of reasonable responses test “ developed by the English Courts to avoid an Industrial Tribunal relying on substituting their views for that of an employer. In Foley V Post Office [2000] ICR 1283, a case on absence from work, Mummery LJ stated
“The employer, not the tribunal is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response “
This was elaborated on in Anglian Home Improvements limited v Kelly [2005]ICR 242 and approved by the Irish High Court in a wrongful dismissal claim Doyle v Asilio Commercial Ltd [2008]IEHC 445.
The basis for and the application of the “ band of reasonable responses “ test is reflected in the decision of Browne Wilkinson J in Iceland Frozen Foods v Jones [1983]1 ICR 17.
“As to the alternative ground relied on by the industrial tribunal , namely , procedural unfairness, as we have said we do not think that it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural , and reach a conclusion in all the circumstances “
- in Bolger v Showerings ltd [1990]ELR 184 to the circumstances of dismissal on ill health grounds . They contended that an employer would be penalised by having to satisfy “a necessity test” for dismissal, when it wasn’t outlined in statute or in the Bolger judgement, particularly given, the introduction of Section 86 of the Workplace Relations Act 2015 on annual leave during sick leave.
- from Liz Allen v Independent Newspapers ( Ireland) ltd [2002]13 ELR 84. At all times, the respondent acted proportionately to the realities that the complainant presented, in the face of a clear lack of certainty on the complainants return to work.
- Clarification received from the respondent company
In the respondents closing remarks The respondent representative , took the opportunity to offer a welcome clarification to the hearing. Having heard the full account of the complainant’s recollection of events, the respondent team had accelerated a rapid contact with Ms M, who the complainant had recalled was standing adjacent to her when the letter was read out to her in January 2012 in the store. Ms M shared with the respondent that there was a basis to what the complainant remembered , and this assisted the company in finding a record of the matter described in parallel documentation at the store , thus confirming a legitimacy to the complainants somewhat vague recollection of detail of events . I gave the complainant a moment to allow for the benefit of this information to be absorbed and preceded with the conclusion. I acknowledge the approach adopted by the respondent in this regard.
5 Complainant’s Submission and Presentation:
“ was directly attributable to a psychological illness occasioned by the failure of the respondent to properly investigate an allegation made against the complainant and/or failing to provide any reassurance , counselling , comfort or resolution in respect of an alleged complaint against the claimant “.
It was submitted that the complainant had been disciplined, without investigation and admonished. The letter of complaint from the customer had not been made known to the complainant .She understood that that the customer in question” would continue to monitor her in respect of her conduct “. The complainant was unable to return to work without medical intervention. Recourse to dismissal was premature and unfair. If time had been allowed to prevail, accompanied by fair and proper enquiries, the claimant would ultimately be in a position to return to work.
- rd 2016, which was summarised as:
Ms A suffered from a Depressive illness from January 2012, with no history of psychological symptoms prior to this date. The GP submitted a potential for a possible causal connection between the joint stressors of her father’s illness and her negative experience at work around the same time as a possible basis for her condition.
He was optimistic of an improvement over time.
Ms A was unfit for work at the time of dismissal, at that stage; she had been met with at 4-6 weekly intervals for over three years. She had psychological condition and was pressed to return to work, when she wasn’t ready. Up to 2012, all the company assessments of Ms A placed her in the “ excellent employee” category .The incident involving the “ customer complaint “ was witnessed by Ms M and should have pronounced a reaction from the company long before the complainant reminded them of it in May 2015.
The complainant had not worked since her dismissal and she continued to receive a social welfare payment of E 210.00 per week. She had been unable to mitigate her loss due to illness. Allen cited in support. The remedy sought was compensation.
The complainant contended that the sanction of dismissal was excessive, no alternatives were considered and Ms A had suffered from losing her job both on a financial and psychological basis. The company relied on their own version of events and did not hear the complainant.
6 Evidence of Ms A (the complainant)
She acknowledged that she did not bring this matter to the Stores management Team attention as there was re organisation underway and the staffs was under pressure. It never came up at the back to work meetings.
In the course of her treatment plan, a Counsellor had asked her to focus on the details of the events surrounding the customer complaint and advised her to secure the letter from the store in order to read it out in a therapeutic fashion to put the matter behind her .This formed the back drop to her seeking details from Ms B in May 2015, but neither Ms B or MR C remembered the matter.
After this, she was told to come on her own to meetings and wasn’t given the option of bringing a fellow employee. Ms A did challenge the practice where her partner had been allowed in previously but this was to cease. She experienced an n incident at the store, when Mr C walked past her, put his head down and never saluted. She saw no reason for that conflict.
Ms A recalled that she had anticipated being sent to the company Doctor as “I would love to go back to work” when she attended the back to work meetings but this did not happen. She wanted to go back to work when she attended the 13 July meeting, but just couldn’t. She asked Mr C for the contract and handbook and suggested she see the company Rd.
Mr C told her that she could reapply for a position with the respondent, at any stage on submission of a C.V. She thought that the company would understand that she was trying to work on resuming her position but, while she was trying to get out for short walks, she didn’t feel well. She did not receive any option outside termination on grounds of ill health on August 28th 2015.
The complainant acknowledged in cross examination that she had difficulty remembering. She confirmed that she had not mentioned the presence of the other worker, Ms M before todays hearing. She stated that she told the truth and recalled that she was very afraid of every customer after this .She submitted that these events occurred just after her father became ill in 2011, namely January 2012.She told her husband about it. Ms A confirmed that she had not made a lot of progress in her medical reports and was unable to identify a definite date for her return to work. She felt sure that Ms B knew about her unease after the customer complaint given. The length of the letter and her acknowledged fear. She stated that the issue just lay there until triggered by the Counsellor as her Dads health took over from February 2012. She accepted the company didn’t know that it was an impediment to her return to work.
The complainant confirmed that she had not met the Company Dr during the course of her employment, when asked by the Adjudicator.
7 Evidence of Complainants Husband
8 Decisions:
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.
Issues for Decision:
Legislation involved and requirements of legislation:
The Unfair Dismissals Act 1977 (as amended) provides as follows:
“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:…
(a) The capability of the employee for performing work of the kind which she was employed by the employer to do.
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,
- During the course of the hearing, the respondent took issue at the content and manner in which I posed questions to his witnesses. I have detailed the questions in the record of evidence given. I reminded the respondent that I had a duty to inquire into the complaint under S. 41 of the Workplace Relations Act 2015 and I intended to follow that path in this a Quasi Judicial forum. I also confirmed that I needed to know what was in the mind of the decision makers at the moment of dismissal. It is of particular note that my questions were structured on the completion of cross examination and post an opportunity for the respondent to redirect.
In Donnelly V Timber Factors ltd, [1991]1 IR 553, in the Supreme Court, McCarthy J. considered the roles of judge and advocate, where it was claimed that the judge had intervened excessively. He held:
“The role of the judge of trial in maintaining an even balance will require that on occasion, he must intervene in the questioning of witnesses with questions of his own- the purpose being to clarify the unclear, to complete the incomplete, to elaborate the inadequate and to truncate the long-winded. It is not to embellish, to emphasise or, save rarely, and to criticise.”
I find this observation has application in this reflection.
(1) The customer complaint
(2) Incapacity
(3) Procedural Matters
- 5 The Customer Complaint
It is clear from the complainants file that she functioned very well at work up until early 2012. She had 43 sick days 2006-2011, an entry dated 26/9/2011 recorded “keep up the good work”. I accept that the customer complaint was a stressor for the complainant given the clearly outlined emphasises on positive customer relations in the staff handbook and I do not wish to comment on the actual management of the matter in January 2012. Suffice to say, it has formed a substantial sub plot in this case and the matter has clearly remained unresolved for the complainant for the past four years. I am struck by the Medical report of March 2016 (post Dismissal) which emphasises that there was no prior history of psychological symptoms before 2012. However, on examination of the staff handbook, I note a comprehensive policy to be followed in the event of dissatisfaction following a customer complaint. This was not followed.
“Employees should not assume that others are or may be aware that the activity complained of has occurred or is ongoing “(extract from staff handbook)
I can appreciate that both the Family Illness coupled by personal stress may have taken away some impetus in this regard, but there was a policy there.
The respondent did not maintain an easily reachable record of this complaint and while I appreciate that the matter was not raised formally with the company until May 2015, the delay in addressing this at that juncture or subsequently is regrettable. I am satisfied that the complainant made some effort to bring this matter into the arena as a defence once the prospect of dismissal was raised by the company. Ms B made an honest attempt to find details, but was unsuccessful. Mr C did not engage on the issue and Mr E did not engage with it in the management of the Appeal Hearing. This is a stark omission .On the complainants behalf , I find that she may not have been clear on the central importance of this issue , given her clouded recall and she may not have emphasised this centrality sufficiently in the meetings from May to August 2015 and at the appeal .
I find that the matter was compromised by poor record keeping, delayed notification and the complainants absence from the workplace for an extended period .It is also clear to me that the residual effects of the complainants experiences at this time remained with her for much longer than was necessary . Therefore, I hope that it was helpful and beneficial to the complainant to receive a validation of her concerns at the hearing, albeit the 11th hour timing. I did try to ascertain the impact of this development but I appreciate that the parties needed time to adjust.
Throughout the case, the absence period was referred to be 3.5 years; yet, I find that the complainant was on statutory and extended maternity leave from July 2013 to April 2014. These periods should have been delineated as the maternity leave is a special protected period under law therefore , the absence on sick leave ought to have been recalculated as approximately 30 months i.e. 2.5 years .The company paid one period of 12 days sick pay with the remainder paid by DSP .The complainant was not replaced . The complainant made an application for Redundancy some time in 2013, but this was not actioned .
There are no set rules in statute or case law which point to a yard stick for deciding when is the correct time to call it a day when capacity is considered. In this case, there was no provision in the contract of employment, or in company procedures .In Mooney and Rowntree Mackintosh ltd UD 478/1980, the company had an absence tolerance of 7%, the claimants had a 21-31% cerified absence where the company Dr made only general statements on certs. The dismissals were found to be justified.
The company, in this case decided that there was no potential for the complainant to return to work, having engaged in an extensive set of 1; 1 interactions under the umbrella of back to work meetings which did not generate the required back to work date. I appreciate that the invitations to these meetings were made in good faith by the company but I find that there was a variance from the company procedures, which allowed for the involvement of the company Doctor in both short and long term absence management.
The meetings were aimed at discussing the complainants medical condition , I find that it was short sighted of the company to allow the Management Team to substitute their own views on the potential for the complainant to return to work in the absence of an expert Medical Report from a Company Dr , given both Mr C and Ms Bs appreciation of Ms As active illness .In Bolger , the complainant had expressed a personal view that he felt unable to undertake his previous job at any time, no such pronouncement occurred in this case . Instead, the complainant told the company she was still trying to improve and was awaiting a Psychiatrists Involvement at the time of dismissal .
In Harford v Portions Foods ltd UD 20/1983, The EAT found that the Employer did not make a full effort to ascertain future prognosis and the Dismissal was found to be unfair .
I find it confusing, in the instant case , that the back to work meetings were set up in the main to discuss the complainants medical progress, Surely this progress can only be scripted by a Medical Team? I find it unreasonable that the company did not court the views directly of any member of the complainants treating team rather than relying on the complainant, who was clearly ill to act as messenger .The last medical report on file prior to dismissal is undated and I find this unreasonable. However, the note of the dismissal meeting records the complainant awaiting an appointment with a psychiatrist. I regard this as work in progress. Therefore, I find that Incapacity on a permanent basis was not diagnosed by any doctor in this case. I find that the actions to dismiss, therefore, were premature .While I accept that it is permitted under statute to dismiss an employee on grounds of incapability, on this occasion; I find that undue haste was used based on an incorrect quantification of actual sick leave for which there was a deeper reason for absence. I did not hear that the Business was underpressure to replace the complainant .The complainant has to be seen to hold partial responsibility for the delayed notification of contributory factors and their influence on her delayed recovery .However, when she did raise the matter in her letter of appeal and during the course of the appeal, the matter remained moot to the respondent.This was a missed opportunity for both parties .
There are a number of overlaps in this case and Mc Grath v Irish Distillers ltd UD 417/2006, Mc Loughlin v Celmac ltd UD/799/1994.
In conclusion, I find that there was an unreasonable over emphasis on securing a back to work date without sufficient regard for (1) Co ordination of a successful strategy to achieve this (2) an effective exploration of the complainants submissions on the totality of reasoning for her extended absence, part of which emanated in the store. In Bolger, Lardner J set down a 4 stage test
For a dismissal on grounds of incapacity to be deemed fair the onus is on the employer to show:
It was the incapacity which was the reason for the dismissal.
The reason was substantial.
The employee received fair notice that the question of her dismissal for incapacity was being considered
The employee was afforded an opportunity of being heard.
It became clear as Ms B told the hearing, that she was required to submit the employee file to the senior management team in mid summer, 2015. This resulted in the store manager’s decision to dismiss without as he stated a “yardstick “of reference period which might have guided him in a formulaic fashion i.e. Mooney. And without the benefit of an independent medical review allowed in the staff handbook. The premise referred to is: I can’t wait forever.
I find that the unique circumstances and the individual were overlooked and the procedures used in dismissing the complainant were tainted by unfairness. In Hoey V White Horse Insurance Irl ltd (under appeal) [2016]27 ELR 30, the EAT held that the respondent did not abide by its own disciplinary procedures and no consideration was given to the treating GPs medical certs. This case has authority here.
The Labour Court has held in NuredaleT/A Panda Waste and Robert Burke (UDD 163/2016) “At its most basic level, the requirements of fairness in employment dictate that similar situations be treated similarly “ I cannot accept that the deviation from the approach outlined in staff handbook for the introduction of the company Dr was fair . Frequently , Occupational Health Doctors are Consultants , who specialise in early intervention, activation and rehabilitation in cases of long term absence . If I am being asked to consider this case under the bands of reasonableness in the spirit in which Lord Denning intended, I find that a reasonable employer would want to
Ensure that he practiced his duty of care to an employee to keep all records in a safe place.
That a decision to terminate employment would only be taken based on sound preparatory documentation and exhaustion of all possible alternatives , inclusive of an option of a phased return to work.
That the resources of the company would allow for a company doctor assessment.
That the employee would be heard on all submissions made in her name.
- “Bank of Ireland V Reilly [2015] 1] IEHC 241
I appreciate that a position cannot be kept open indefinitely , however , there needs to be a humanistic approach to balance the business imperative to avoid “the automatic discarding “ of a long term employee , who up to January 2012, had a 7 year positive work history . Work is psychologically important for our self worth as well as an economic necessity.
I have reached the conclusion in this case that based on the reasons outlined that the complainant was unfairly dismissed on substantive and procedural grounds from her employment at the respondent store.
9 Redress
I have given some thought to redress in this case and to “grant the remedy which will do justice to the parties “. Given the short time frame from August 28th 2015 to today in addition to the previous positive work relations between the parties, I explored the prospects of re-instatement and re-engagement as I believe that it may be in the complainants best interests to try to return to work, once deemed medically fit, as a means of marking closure on a difficult period in her life. However, I found both of these avenues to be impractical.
The claimant has been on DSP payments since January 2012, reverting to maternity benefit for the statutory period and recommencing DSP payments thereafter, the respondent had contended that she has not had a loss.
.Section 7(2) (a) and (b) of the Act compel me to examine:
The extent if any to which the financial loss referred to in this subsection was attributable to an act , omission or conduct by or on behalf of the employer
The extent if any to which the financial loss was attributable to an action omission or conduct by or on behalf of an employee.
Loss is outlined as actual loss, estimated prospective loss of income attributable to the dismissal and the loss attributable of the rights of the Redundancy Payments Acts/ Superannuation.
In all the circumstances of this case, I find that the appropriate redress is an award of compensation. The complainant did contribute to some degree to the dismissal and based on the March 2016 Medical Report submitted by the complainant, she is neither still nor deemed fit for work. I hope this will change in the short term.
I find that both Section 7 (a) and (b) apply in this case. The claimant earned E 320 weekly and is now living on E210 DSP payment. I have taken account of actual and prospective financial loss suffered by the complainant arising from her dismissal. Allen V Independent Newspapers [2002} ELR 84 applied. I find that I must allow a reasonable period to ensure that the complainant has the maximum chance of resuming work and I award compensation under the Act in the amount of 19,000 euro.
Dated: 13th June 2016
2015.
The complainant had not worked since her dismissal and she continued to receive a social welfare payment of E 210.00 per week. She had been unable to mitigate her loss due to illness. Allen cited in support. The remedy sought was compensation.
The complainant contended that the sanction of dismissal was excessive, no alternatives were considered and Ms A had suffered from losing her job both on a financial and psychological basis. The company relied on their own version of events and did not hear the complainant.
6 Evidence of Ms A (the complainant)
She acknowledged that she did not bring this matter to the Stores management Team attention as there was re organisation underway and the staffs was under pressure. It never came up at the back to work meetings.
In the course of her treatment plan, a Counsellor had asked her to focus on the details of the events surrounding the customer complaint and advised her to secure the letter from the store in order to read it out in a therapeutic fashion to put the matter behind her .This formed the back drop to her seeking details from Ms B in May 2015, but neither Ms B or MR C remembered the matter.
After this, she was told to come on her own to meetings and wasn’t given the option of bringing a fellow employee. Ms A did challenge the practice where her partner had been allowed in previously but this was to cease. She experienced an n incident at the store, when Mr C walked past her, put his head down and never saluted. She saw no reason for that conflict.
Ms A recalled that she had anticipated being sent to the company Doctor as “I would love to go back to work” when she attended the back to work meetings but this did not happen. She wanted to go back to work when she attended the 13 July meeting, but just couldn’t. She asked Mr C for the contract and handbook and suggested she see the company Rd.
Mr C told her that she could reapply for a position with the respondent, at any stage on submission of a C.V. She thought that the company would understand that she was trying to work on resuming her position but, while she was trying to get out for short walks, she didn’t feel well. She did not receive any option outside termination on grounds of ill health on August 28th 2015.
The complainant acknowledged in cross examination that she had difficulty remembering. She confirmed that she had not mentioned the presence of the other worker, Ms M before todays hearing. She stated that she told the truth and recalled that she was very afraid of every customer after this .She submitted that these events occurred just after her father became ill in 2011, namely January 2012.She told her husband about it. Ms A confirmed that she had not made a lot of progress in her medical reports and was unable to identify a definite date for her return to work. She felt sure that Ms B knew about her unease after the customer complaint given. The length of the letter and her acknowledged fear. She stated that the issue just lay there until triggered by the Counsellor as her Dads health took over from February 2012. She accepted the company didn’t know that it was an impediment to her return to work.
The complainant confirmed that she had not met the Company Dr during the course of her employment, when asked by the Adjudicator.
7 Evidence of Complainants Husband
8 Decisions:
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.
Issues for Decision:
Legislation involved and requirements of legislation:
The Unfair Dismissals Act 1977 (as amended) provides as follows:
“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:…
(a) The capability of the employee for performing work of the kind which she was employed by the employer to do.
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,
- During the course of the hearing, the respondent took issue at the content and manner in which I posed questions to his witnesses. I have detailed the questions in the record of evidence given. I reminded the respondent that I had a duty to inquire into the complaint under S. 41 of the Workplace Relations Act 2015 and I intended to follow that path in this a Quasi Judicial forum. I also confirmed that I needed to know what was in the mind of the decision makers at the moment of dismissal. It is of particular note that my questions were structured on the completion of cross examination and post an opportunity for the respondent to redirect.
In Donnelly V Timber Factors ltd, [1991]1 IR 553, in the Supreme Court, McCarthy J. considered the roles of judge and advocate, where it was claimed that the judge had intervened excessively. He held:
“The role of the judge of trial in maintaining an even balance will require that on occasion, he must intervene in the questioning of witnesses with questions of his own- the purpose being to clarify the unclear, to complete the incomplete, to elaborate the inadequate and to truncate the long-winded. It is not to embellish, to emphasise or, save rarely, and to criticise.”
I find this observation has application in this reflection.
(1) The customer complaint
(2) Incapacity
(3) Procedural Matters
- 5 The Customer Complaint
It is clear from the complainants file that she functioned very well at work up until early 2012. She had 43 sick days 2006-2011, an entry dated 26/9/2011 recorded “keep up the good work”. I accept that the customer complaint was a stressor for the complainant given the clearly outlined emphasises on positive customer relations in the staff handbook and I do not wish to comment on the actual management of the matter in January 2012. Suffice to say, it has formed a substantial sub plot in this case and the matter has clearly remained unresolved for the complainant for the past four years. I am struck by the Medical report of March 2016 (post Dismissal) which emphasises that there was no prior history of psychological symptoms before 2012. However, on examination of the staff handbook, I note a comprehensive policy to be followed in the event of dissatisfaction following a customer complaint. This was not followed.
“Employees should not assume that others are or may be aware that the activity complained of has occurred or is ongoing “(extract from staff handbook)
I can appreciate that both the Family Illness coupled by personal stress may have taken away some impetus in this regard, but there was a policy there.
The respondent did not maintain an easily reachable record of this complaint and while I appreciate that the matter was not raised formally with the company until May 2015, the delay in addressing this at that juncture or subsequently is regrettable. I am satisfied that the complainant made some effort to bring this matter into the arena as a defence once the prospect of dismissal was raised by the company. Ms B made an honest attempt to find details, but was unsuccessful. Mr C did not engage on the issue and Mr E did not engage with it in the management of the Appeal Hearing. This is a stark omission .On the complainants behalf , I find that she may not have been clear on the central importance of this issue , given her clouded recall and she may not have emphasised this centrality sufficiently in the meetings from May to August 2015 and at the appeal .
I find that the matter was compromised by poor record keeping, delayed notification and the complainants absence from the workplace for an extended period .It is also clear to me that the residual effects of the complainants experiences at this time remained with her for much longer than was necessary . Therefore, I hope that it was helpful and beneficial to the complainant to receive a validation of her concerns at the hearing, albeit the 11th hour timing. I did try to ascertain the impact of this development but I appreciate that the parties needed time to adjust.
Throughout the case, the absence period was referred to be 3.5 years; yet, I find that the complainant was on statutory and extended maternity leave from July 2013 to April 2014. These periods should have been delineated as the maternity leave is a special protected period under law therefore , the absence on sick leave ought to have been recalculated as approximately 30 months i.e. 2.5 years .The company paid one period of 12 days sick pay with the remainder paid by DSP .The complainant was not replaced . The complainant made an application for Redundancy some time in 2013, but this was not actioned .
There are no set rules in statute or case law which point to a yard stick for deciding when is the correct time to call it a day when capacity is considered. In this case, there was no provision in the contract of employment, or in company procedures .In Mooney and Rowntree Mackintosh ltd UD 478/1980, the company had an absence tolerance of 7%, the claimants had a 21-31% cerified absence where the company Dr made only general statements on certs. The dismissals were found to be justified.
The company, in this case decided that there was no potential for the complainant to return to work, having engaged in an extensive set of 1; 1 interactions under the umbrella of back to work meetings which did not generate the required back to work date. I appreciate that the invitations to these meetings were made in good faith by the company but I find that there was a variance from the company procedures, which allowed for the involvement of the company Doctor in both short and long term absence management.
The meetings were aimed at discussing the complainants medical condition , I find that it was short sighted of the company to allow the Management Team to substitute their own views on the potential for the complainant to return to work in the absence of an expert Medical Report from a Company Dr , given both Mr C and Ms Bs appreciation of Ms As active illness .In Bolger , the complainant had expressed a personal view that he felt unable to undertake his previous job at any time, no such pronouncement occurred in this case . Instead, the complainant told the company she was still trying to improve and was awaiting a Psychiatrists Involvement at the time of dismissal .
In Harford v Portions Foods ltd UD 20/1983, The EAT found that the Employer did not make a full effort to ascertain future prognosis and the Dismissal was found to be unfair .
I find it confusing, in the instant case , that the back to work meetings were set up in the main to discuss the complainants medical progress, Surely this progress can only be scripted by a Medical Team? I find it unreasonable that the company did not court the views directly of any member of the complainants treating team rather than relying on the complainant, who was clearly ill to act as messenger .The last medical report on file prior to dismissal is undated and I find this unreasonable. However, the note of the dismissal meeting records the complainant awaiting an appointment with a psychiatrist. I regard this as work in progress. Therefore, I find that Incapacity on a permanent basis was not diagnosed by any doctor in this case. I find that the actions to dismiss, therefore, were premature .While I accept that it is permitted under statute to dismiss an employee on grounds of incapability, on this occasion; I find that undue haste was used based on an incorrect quantification of actual sick leave for which there was a deeper reason for absence. I did not hear that the Business was underpressure to replace the complainant .The complainant has to be seen to hold partial responsibility for the delayed notification of contributory factors and their influence on her delayed recovery .However, when she did raise the matter in her letter of appeal and during the course of the appeal, the matter remained moot to the respondent.This was a missed opportunity for both parties .
There are a number of overlaps in this case and Mc Grath v Irish Distillers ltd UD 417/2006, Mc Loughlin v Celmac ltd UD/799/1994.
In conclusion, I find that there was an unreasonable over emphasis on securing a back to work date without sufficient regard for (1) Co ordination of a successful strategy to achieve this (2) an effective exploration of the complainants submissions on the totality of reasoning for her extended absence, part of which emanated in the store. In Bolger, Lardner J set down a 4 stage test
- For a dismissal on grounds of incapacity to be deemed fair the onus is on the employer to show:
(1) It was the incapacity which was the reason for the dismissal.
(2) The reason was substantial.
(3) The employee received fair notice that the question of her dismissal for incapacity was being considered
(4) The employee was afforded an opportunity of being heard.
It became clear as Ms B told the hearing, that she was required to submit the employee file to the senior management team in mid summer, 2015. This resulted in the store manager’s decision to dismiss without as he stated a “yardstick “of reference period which might have guided him in a formulaic fashion i.e. Mooney. And without the benefit of an independent medical review allowed in the staff handbook. The premise referred to is: I can’t wait forever.
I find that the unique circumstances and the individual were overlooked and the procedures used in dismissing the complainant were tainted by unfairness. In Hoey V White Horse Insurance Irl ltd (under appeal) [2016]27 ELR 30, the EAT held that the respondent did not abide by its own disciplinary procedures and no consideration was given to the treating GPs medical certs. This case has authority here.
The Labour Court has held in NuredaleT/A Panda Waste and Robert Burke (UDD 163/2016) “At its most basic level, the requirements of fairness in employment dictate that similar situations be treated similarly “ I cannot accept that the deviation from the approach outlined in staff handbook for the introduction of the company Dr was fair . Frequently , Occupational Health Doctors are Consultants , who specialise in early intervention, activation and rehabilitation in cases of long term absence . If I am being asked to consider this case under the bands of reasonableness in the spirit in which Lord Denning intended, I find that a reasonable employer would want to
(1) Ensure that he practiced his duty of care to an employee to keep all records in a safe place.
(2) That a decision to terminate employment would only be taken based on sound preparatory documentation and exhaustion of all possible alternatives , inclusive of an option of a phased return to work.
(3) That the resources of the company would allow for a company doctor assessment.
(4) That the employee would be heard on all submissions made in her name.
- “Bank of Ireland V Reilly [2015] 1] IEHC 241
I appreciate that a position cannot be kept open indefinitely , however , there needs to be a humanistic approach to balance the business imperative to avoid “the automatic discarding “ of a long term employee , who up to January 2012, had a 7 year positive work history . Work is psychologically important for our self worth as well as an economic necessity.
I have reached the conclusion in this case that based on the reasons outlined that the complainant was unfairly dismissed on substantive and procedural grounds from her employment at the respondent store.
9 Redress
I have given some thought to redress in this case and to “grant the remedy which will do justice to the parties “. Given the short time frame from August 28th 2015 to today in addition to the previous positive work relations between the parties, I explored the prospects of re-instatement and re-engagement as I believe that it may be in the complainants best interests to try to return to work, once deemed medically fit, as a means of marking closure on a difficult period in her life. However, I found both of these avenues to be impractical.
The claimant has been on DSP payments since January 2012, reverting to maternity benefit for the statutory period and recommencing DSP payments thereafter, the respondent had contended that she has not had a loss.
.Section 7(2) (a) and (b) of the Act compel me to examine:
(a) The extent if any to which the financial loss referred to in this subsection was attributable to an act , omission or conduct by or on behalf of the employer
(b) The extent if any to which the financial loss was attributable to an action omission or conduct by or on behalf of an employee.
Loss is outlined as actual loss, estimated prospective loss of income attributable to the dismissal and the loss attributable of the rights of the Redundancy Payments Acts/ Superannuation.
In all the circumstances of this case, I find that the appropriate redress is an award of compensation. The complainant did contribute to some degree to the dismissal and based on the March 2016 Medical Report submitted by the complainant, she is neither still nor deemed fit for work. I hope this will change in the short term.
I find that both Section 7 (a) and (b) apply in this case. The claimant earned E 320 weekly and is now living on E210 DSP payment. I have taken account of actual and prospective financial loss suffered by the complainant arising from her dismissal. Allen V Independent Newspapers [2002} ELR 84 applied. I find that I must allow a reasonable period to ensure that the complainant has the maximum chance of resuming work and I award compensation under the Act in the amount of 19,000 euro.
Dated: 13th June 2016