ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003396

Complaint for Resolution:

Date of Adjudication Hearing: 20/09/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Background

The complainant commenced employment with the respondent on May 16^th 2011. In due course she was promoted to the level of a ‘Trade Supervisor’ on April 16^th 2014. The respondent operates on an all island basis and is in the wholesale and retail trade.

Earlier, on January 6^th 2014 she had been the victim of a car accident and suffered personal injuries. In the course of her mid-year review she brought to the respondent’s attention that the range of her responsibility covering the entire island was proving onerous, involving weekly travel of some 1,500 kilometres and that this was aggravating the injury sustained in the January car accident.

However, in August the demands placed on her increased but in December 2014 she had responsibility for the Dublin area removed from her but this had the effect of adding to the time and distance to be travelled which increased to 2000 kilometres per week.

Eventually she was certified as unfit for work on February 20^th 2015 and so she remained until her employment was terminated. In the interim she submitted regular medical certification.

Her employment was terminated by letter of September 15^th 2015 giving her three months notice which expired on December 14^th.

This was preceded by the following.

On April 15^th the company sent a letter saying that she would have to attend for a risk assessment before returning to work and certain other administrative matters.

They wrote again on May 18^th telling her that she would be required to attend for examination with an independent medical practitioner. This took place on May 24^th and was followed by a meeting with the management of the respondent on July 13^th. On foot of this meeting a letter was sent to the complainant in the course of which the purpose of the meeting was described as having been ‘to discuss matters relating to your employment that were raised in the report from [the independent medical reviewer].

The option suggested by the doctor of a return to part time work was rejected, but it concluded by wishing the complainant ‘good progress to a speedy recovery’.

A second referral to the independent doctor was made and following a consultation on August 19^th the company wrote again to her on August 26^th requesting a further meeting ‘to discuss matters relating to your employment that were raised in the report’.

It continued;

‘This is a serious matter and you are entitled, if you wish, to be accompanied by a friend or colleague to this meeting.

That meeting took place on September 14^th, and the following day the respondent wrote, noting that the doctor could not give any date for recovery or return to work. It continued;

‘Given your management position, we cannot leave your position open indefinitely. It is with great regret we have come to the conclusion, based on the independent medical assessments that technically you are currently unable to discharge your obligations under your Contract of Employment. In these particular circumstances we have no choice but to terminate your employment.’

A termination date of December 14^th was given and in due course her employment terminated on that date.

Complainant’s Submission and Presentation:

The background facts set out above are largely agreed by the parties.

The complainant additionally notes that at the meeting with the company on July 13^th 2015 the positon stated by the company doctor was that she was not (then) ‘currently’ fit to return to work but had suggested that the complainant might return on a part-time basis. Despite that it was stated at the meeting without any consideration or discussion that this would not be possible and in the follow up letter the option to part time work was described as not being ‘a realistic possibility’.

In respect of the meeting of September 14^th she says that she was told by the respondent representative that she still had a long road to recovery and that they were terminating her employment. (See extract above from letter issued the following day).

At the meeting the complainant’s accompanying person asked the respondent whether he might reconsider if the complainant were to improve and potentially get a return to work date within the three month notice period. The respondent answered that he would not.

At no stage prior to the meeting had the complainant been out on notice as to the nature of the meeting; specifically that her job was at risk or that termination of her employment was under consideration. In fact it is clear that the decision to dismiss her had been taken in advance of the meeting.

In her own direct evidence the complainant said that she had felt worried and intimidated about that meeting and that she did not know what its purpose was. It was a very brief meeting and began well with an exchange of pleasantries. However, she was then told that she was being given three months’ notice. Her companion at the meeting asked whether if a further assessment resulted in a definite date being given for a return to work would that change things to be told that it would not.

Subsequently, (on February 17^th 2016, the complainant appealed the decision on a number of grounds viz that during her illness her work had been reorganised so that she could be dismissed without the need to replace her, that the true nature of the termination was a redundancy, and that no account was taken of the fact that the injury necessitating her absence was incurred in the course of her work.

The appeal was by way of a ‘documents only’ process and it did not succeed.

The complainant made extensive legal submissions on the law relating to fair procedure in a disciplinary context and the extent to which these have been underpinned by the Superior Courts as constitutional rights. (Garvey v Ireland [1981] IR 75.)

These rights include in particular the right to full prior notice of the nature of the process, the possible range of sanctions to which an employee might be exposed and the right to be heard.

She also submitted specific authority on the processing of an issue against an employee who has a record of absence from work due to ill-health and the specific considerations that must be present to render a dismissal fair in such circumstances. (Bolger v Showerings (Ireland) [1990] ELR 184, to which I return below.

The complainant also referred to Delany v Central Bank of Ireland [2011] IEHC 212 on the point of what specific brief may have been given to the referral medical practitioner.

Respondent’s Submission and Presentation:

The respondent addressed that latter point first saying no brief was given to the examining doctor other than to assess the complainant’s fitness to return to work.

The respondent also said that there was no basis for the suggestion that the complainant’s post was made redundant. The company changed and reorganised all the time and the re-distribution of the complainant’s work was a necessity forced on it by her absence.

Even if her duties were no longer combined in a single post her tenure in the company would not have been affected and she would have been guaranteed a return to work on some basis when well enough to do so and that there was no risk to her continuing employment had there been some basis for knowing when she might return.

The respondent said that it must have been clear to the complainant from the other meetings with her that her position was in jeopardy if she was not in a position to return to work at some identifiable point. It stressed the lengthy duration of the absence and the pressure that resulted on staff

It felt that it would have been highly insensitive to tell her in advance of the September meeting that her position was at risk. The respondent stressed that the company had strong values in relation to the relationships with its staff and would not treat then other than on a very human basis.

In his direct evidence the Manager who conducted the September meeting said that he had asked the complainant at the meeting whether she felt any improvement but she had told them that she had regressed somewhat.. He said the decision to terminate was only made on foot of the outcome of that meeting and the fact that the company had no certainty as to when the complainant might return.

The respondent felt that on balance it had acted with fairness and sensitivity and professionally. It also acted in accordance with ‘contractual procedure’ and eventually its decision to terminate was ‘informed by independent medical assessments’.

Findings and Conclusions 

A number of issues arise.

The first is what constitutes a reasonable period after which an employee’s absence on sick leave triggers the process to termination on grounds of incapacity. There is no precise answer to this although seven months does seem on the short side. Many companies would regard one year as the period after which the question has to be addressed.

This of course turns entirely on the nature of the illness and other facts of the particular case. On the facts of this case it was premature.

What is absolutely clear, however, is the process which must be followed which must at all times and in every respect be underpinned by the principles of fair procedure. The complainant referred to the principles laid down in the High Court by Lardner J. as to how a termination on the grounds of incapacity.

These are;

1. That the ill health is the reason for the dismissal

2. That this was a 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

Bolger v Showerings (Ireland ) Ltd [1990] E.L.R. 184

This is no more than a summary of how the basic principles of fairness are to be applied.

While it is undoubtedly inconvenient when long term illness strike key workers in small and medium sized companies there is no escaping the obligation to apply these principles in order to effect a fair termination of employment.

In this case, the respondent may well meet the requirements of a) and b) in the Bolger judgement. However, they failed to come even close to the later two; c) and d).

There was some suggestion that the complainant ‘ought to have known’ at various stages what her position was, or might become. It was even suggested that it was out of concern for her well being that she was not told in advance of the September 14^th meeting that the termination of her employment might be in contemplation.

The letter inviting her to that meeting contained the following;

Having told her it had the report from the Independent occupational health consultant it continued;

‘…I would like to meet you to discuss matters relating to your employment that were raised in the [medical] report. …

This is a serious matter and you are entitled, if you wish to be accompanied by a friend or colleague to this meeting.’

Leaving aside the more substantial obligations owed to her in respect of fair procedure, the medical opinion actually stated that she would not be fit to return to work until her pain had decreased, although she said she could not say when this was going to be, and went on;

I have left it open ended with her to come back once she feels ready to return to work and she will stay in contact with you regarding her return to work.

On any reading of this, the complainant had little reason to believe that this was anything other than a review of her progress.

But one cannot leave aside the substantial, if simple obligations owed to her in respect of fair procedure. She had the right to be told that she would be attending a meeting, following which a decision would be taken about her continued employment. This would have enabled her to make whatever submissions she wishes on any aspect of her case in light of the knowledge of the decision she may be facing. That is what is meant in practical terms by the right to be heard as enunciated in the Bolger case, (at point d) above) and which is a cardinal principle of fair procedure.

The failure to do so is a fatal breach of the obligations falling on the respondent and renders the dismissal unfair. In all probability the decision to terminate her employment was made in advance of the meeting, it appears from the letter of termination, primarily on the basis of the duration of her absence up to that point.

I conclude that the complainant was unfairly dismissed. (I do not agree with the contention that the complainant was eligible for, or likely to he been made redundant).

However, she remains on sick leave and therefore cannot be said to have been available for work and therefore at the loss of earnings up to the time of the hearings. In respect of this period I am permitted to make an award of no more than one month’s salary and I do so.

It is not possible to identify precisely when, or at what level she might be in a position to enter the labour market again.

There have been mainly beneficial consequences of the greatly reduced delay in cases such as this coming on for hearing. At one time the delay in having a case such as this heard was in excess of a year and a half. Clearly in that situation matters had the opportunity to be a lot clearer for example in relation to recovery from illness, and the related opportunity to apply for and possibly succeed in gaining new employment. (In this case the complaint was referred to the WRC on June 2^nd 2016 and the case was heard on September 20^th 2016).

The Unfair Dismissals Act deals in section 7 with the determination of compensation. It states that there is an entitlement to redress where a dismissal is held to be unfair. It identifies various mitigating or aggravating factors which are to be taken into account. It also limits the maximum to be awarded to two years remuneration.

It also defines ‘financial loss’ in Section 7 (3) as follows

‘financial loss’ in relation to the dismissal of an employee, includes any actual loss and any

estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation

So this is clearly identifying the potential for loss as relating to actual loss and any estimated prospective loss of income attributable to the dismissal. The criterion for all such awards is what is considered just and equitable.

When cases were being heard in the circumstances referred to above when a complainant might be at or near the two year limit this diminished the need for any estimation of future loss where higher awards were being considered.

Estimating loss is obviously a more difficult matter and will turn on the facts and merits of each individual case. But on the basis of a successful complainant having an entitlement to redress there is an obligation under the Unfair Dismissals to find a way of doing so that is just and equitable.

In a situation where a complainant had found alternative work, but at a lower rate, then the loss might be assessed as the difference between the previous and current salary up to whatever level the adjudicator considered fair and equitable based on the factors in Section 7.

At the hearing the complainant indicated that there was no very significant improvement in her condition and she remained uncertain about when she would be in a position to return to the workforce.

I have decided to estimate her losses as follows.

I consider that between her being fit to begin the search for work and actually securing employment it is probable that this will take some months which I place at three months.

I bear in mind also that the complainant held a relatively senior position and was on a salary of just under €50,000 per annum which she attained following a number of internal promotions. While it may be possible it seems unlikely that she will return to the workforce at that level of salary. I assess her likely annual losses to be between €10,000 and 15,000.

On the basis of all these considerations I consider it fair and equitable to award her four months salary (one for the period since her dismissal and three for the period of her preparing to return to work), and a further €7,500 representing an estimate of her ongoing losses for a six month period.

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.

I uphold complaint CA-00004980-001 and find that the complainant was unfairly dismissed and for the reasons set out above I award her €23,500.

Dated:   28/11/2016