ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000974

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/02/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant's representative submitted the following in support of her claim that she was unfairly dismissed:

The Complainant engaged on numerous occasions with the Respondent over the course of 18 months, in an attempt to return to work in a role that was suitable to her condition.

The Complainant at no time refused to engage or to attend any medical examinations arranged for her by the Respondent. In addition, none of the medical professionals who examined her on behalf of the Respondent reported back that she was no longer fit for work.

However, two doctors, who examined the Complainant, recommended that, based on her age, a role review would be best suited.

The Complainant showed constant concern in relation to a position with the Respondent and was in contact on a regular basis seeking updates on her situation.

It eventually became such a concern for the Complainant that when she had not heard anything in relation to the recommended role review, she contacted four members of senior management with the Respondent and requested that she receive some form of correspondence within the following 10 days.

It is the Complainant's view that she was dismissed from her position with the Respondent and that this is an immediate breach of her contract of employment.

In conclusion, the representative on behalf of the Complainant submitted that it was clear from the correspondence received on 20 October 2015, that she was dismissed from her employment with no notice whatsoever. It was further submitted that the Respondent at no time attempted to deny this dismissal until the Complainant brought her complaint to the WRC in December 2015.

Since notifying the Respondent of her objection to her unfair dismissal on 22 October 2015, the Respondent wrote for the Complainant that pay had ceased. It is contended that this is a complete breach of her employment contract and a breach of the Minimum Notice and Terms of Employment Act 1973.

Respondent’s Submission and Presentation:

The representatives for the Respondent stated that in May 2014 the Complainant failed her normal licence check medical, which meant that she was unable to carry out her licensed operational duties. Due to the nature of the illness involved, the Respondent referred the Complainant to their Occupational Health Advisers. Following an examination on 17 July 2014 by the Occupational Health Physician, the Complainant was deemed as medically unfit to work for a period of eight weeks.

The Respondent submitted that the Complainant attended three further appointments with Occupational Health on 8 September 2014, 13 November 2014 and 29 January 2015. After detailed assessment it was confirmed that while there was some improvement in her situation, the Complainant remained unfit for work and it was suggested that she may be fit for a modified role in or around March 2015.

The Respondent submitted that a medical report dated 13 July 2015 confirmed that there were concerns in relation to the Complainant's ability regarding certain duties and that she was deemed medically unfit for her licensed role with the Respondent for the foreseeable future. In this context, the Respondent submitted that they had commenced researching the availability of either an alternative substantive vacancy or the opportunity to modify the Complainant's role in order to allow her to return to the workplace.

The Respondent submitted that, on 8 October 2015, a modified role was identified for the Complainant. This modified role was forwarded to the Occupational Health Advisers to review whether or not it would be suitable to accommodate the Complainant, bearing in mind the restrictions specified in the July 2015 medical report.

In further evidence, the Respondent submitted that the Complainant was advised on 15 October 2015 that a modified role had been identified and that an appointment had been scheduled for her on 22 October 2015 with Occupational Health in order to review whether the role was suitable to accommodate her needs. According to the Respondent, the Complainant was advised that there was no other substantive vacancy in the event that the modified role was deemed unsuitable.

The Respondent submitted that on 19 October 2015, the Complainant emailed to state that the modified role was not suitable for her and, for that reason, she was requesting a separation package. The Respondent submitted that, the following day, 20 October 2015, they responded to the Complainant advising that the appointment had been made with Occupational Health in order to assess her suitability for the modified role but that it now appeared she was ruling herself out of consideration in advance of undertaking the medical assessment. The Respondent further contends that it confirmed to the Complainant that there were no grounds to put in place a separation package but that they would consider a contribution towards further educational costs to assist her in securing alternative employment opportunities.

The Respondent submitted that, on 16 December 2015, they received a letter from the Complainant's solicitor stating that she had been unfairly dismissed and requesting that she be furnished with her P45 by return. The Respondent further submitted that, on 22 December 2015, they responded to the Complainant's solicitor confirming that she had not been dismissed but remained on sick leave for an undisclosed medical condition. Consequently, the Respondent advised the Complainant's solicitor that they had not taken any action which would oblige them to issue a P45.

In conclusion, the Respondent submitted that the Complainant remains an employee and is currently on unpaid sick leave. Consequently, the Respondent contends that the Complainant has not been dismissed and, as a result, there can be no case for an unfair dismissal. The Respondent submits that a modified role had been identified for the Complainant and had it been assessed as suitable to meet her medical needs she would have been accommodated. However, the Respondent contends that the Complainant ruled herself out of this position before medical assessment. The Respondent further submits that, despite requests to her and to her solicitor, the Respondent had not received any confirmation in relation to the Complainant's intention regarding her future employment.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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:

While the Complainant submitted a complaint of unfair dismissal, the Respondent contends that, as the Complainant is still an employee, albeit on sick leave, no dismissal has taken place. Consequently, this preliminary matter must be decided on first.

Legislation involved and requirements of legislation:

The principal legislation involved in this case is the Unfair Dismissals Act, 1977

Decision:

Having carefully considered the detailed submissions, both written and oral, presented by the Complainant and the Respondent, I find that the factual aspects of the case pertaining to the Complainant's medical condition are by and large uncontested.

Consequently, I am satisfied that, by July 2015, it had been established that the Complainant was deemed medically unfit to carry out the licensed duties attached to her role with the Respondent. As a result, the Respondent set about considering the availability of either an alternative substantive role or a modified version of her current role, which would allow a return to the workplace.

The evidence presented by the Respondent suggests that no alternative substantive role was available. However, the Respondent developed a modified role which was submitted to Occupational Health in order to have it assessed against the restrictions which had been established with regard to the Complainant's health/medical situation. The Respondent requested the Complainant to attend Occupational Health in order to have an assessment of the modified role and its suitability in the context of the Complainant's medical situation fully completed.

The evidence presented at the Hearing clearly indicates that, without attending for medical assessment, the Complainant drew her own conclusions in relation to the suitability for her of the modified role and, in that context, requested a separation package. While I note that the Complainant subsequently modified her position in this regard to a certain extent, her position in relation to the unsuitability of the modified role is unequivocal.

It is against this background then that the complaint of unfair dismissal must be assessed. Section 1 of the Unfair Dismissal Act defines a "dismissal" as, firstly,:

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee:

Having carefully reviewed all the evidence presented in this regard, I am satisfied that the Respondent did not take any action which could be considered as a termination of the Complainant's contract of employment. When a letter was received on 16 December 2015 from the Complainant's solicitor claiming that she had been unfairly dismissed, the Respondent responded promptly confirming that the Complainant had not been dismissed and was, at that time, considered to be an employee on sick leave.

In her submission to the Hearing, the Complainant submitted that it was clear from the Respondent's correspondence of 20 October 2015 that she had been dismissed from her employment. I do not accept that there was a reasonable basis for the Complainant to reach such a conclusion. I am strongly of the view that the Respondent's correspondence of 20 October must be considered in the context of the Complainant's email of the previous day, in which she concluded that the modified role, sent to Occupational Health for assessment, was unsuitable and, as a result, requested a separation package.

Based on the situation as set out above, I find no evidence to support the contention that the Respondent terminated the Complainant's contract of employment.

Section 1 of the Unfair Dismissal Act further defines a "dismissal" as:

(b) the termination by an employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer:

While the evidence clearly shows that the Complainant did request a separation package, her subsequent correspondence, in response to the Respondent's confirmation that no such package was available, clearly states that she is not, and/or has no intention of, submitting her resignation. Consequently, I find that the Complainant did not terminate her contract of employment in the manner set out in the above definition of a "dismissal".

Taking all the above into consideration I find that neither the Respondent nor the Complainant actioned a termination of the contract of employment in question. Therefore, I must also find, as a consequence, that no dismissal has taken place.

Consequently, I find that the Complainant's complaint of unfair dismissal is rejected.

Dated:   24^th May 2016