ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00001351

Complaints for Resolution:

Venue: WRC, Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 05/09/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, under section 27 of the Organisation of Working Time Act, 1997 under Section 8 of the Unfair Dismissals Act, 1977 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant was employed as a Credit Supervisor from 8^th June 2012 to 8^th January 2016. She was paid €36,000 per annum. She has claimed that she was unfairly dismissed and that she did not get her holiday entitlement at dismissal.

1) Unfair Dismissals Acts               CA-00001898-002

Respondent’s Submission and Presentation:

The Complainant was absent from work from 15^thJune 2015 and did not return. The Regional Credit Manager had been managing the Dublin office alongside his own. He could not continue to do both jobs. It was decided to appoint a manager for the Dublin Office and to manage the Credit Team as well. On 29^th July the Complainant was placed at risk of redundancy and invited to consider application for the new post. She was given a copy of the job description. She replied that she wished to take legal advice but her Solicitor would be away until 20^th August 2015. She was then advised that the Respondent would not be delaying the process and she was invited to a meeting on 5^th August. On 15^th June the Respondent sought consent to obtain a medical report. She was advised that interviews would be held on 10th August. The Respondent wrote again on 7^th August to advise that it was a critical time for the business and they would proceed on the basis that she was not interested in the new post as they had not heard from her. She did not express an interest in the post and it was filled on 12^th August. She was advised in writing that the post had been filled. On 20^th August she emailed that she was interested in the new post. Following a further request for a medical report it was received and she was invited to attend a meeting to discuss it and to establish a possible return to work date. She was advised that as the Supervisor post was gone there was a Clerk position available. She stated that she would not return until the bullying had stopped. There had been no evidence that there was bullying. She was invited to attend a meeting on 4^th December but she refused. On 24^th December 2015 she was dismissed because she had been absent since 15^th June 2015 with no prospect of a return to work. She was given two weeks’ notice. She wrote on 30^th December 2015 to appeal stating “Further particulars to follow”. The Respondent heard nothing from her.

On 29^th February 2016 she was paid €3,115.39, which was a redundancy payment. She was dismissed because she had been absent for over 7 months with no prospect of returning, also because her role as Credit Supervisor was made redundant.

Complainant’s Submission and Presentation:

The Complainant was dismissed on 8^th January 2016. She was informed that the reason was illness, despite never having been independently medically examined. She had made a complaint of bullying. On 29^th July 2015 she was put at risk of redundancy. She was dismissed on 8^th January 2016. She appealed this decision. She has been penalised for reporting a bullying issue. She is seeking re-instatement and has cited the Allen v Independent Newspapers (Ireland) Ltd UD/641/2000. She is still unfit for work.

Findings

I note that the Respondent stated that the reason for dismissal was due to incapability and this was confirmed in the letter dated 24^th December 2015. It makes no reference to redundancy.

However at this hearing they stated that it was both incapability and redundancy.

I note that €3,115.39 was paid in February 2016, which is a redundancy payment.

1) Incapability

I note that the Complainant was absent from work on a continuous basis since 15^th June 2015 to the date of dismissal on 8^th January 2016.

I note that she had absences prior to that.

I note that she told this hearing that she is still unfit for work.

I note that she has had a relatively short employment record.

I find that she had failed to fulfil her contract of employment which is to attend work on a regular basis.

Therefore there were substantive grounds to terminate the employment.

From a procedural point of view the Respondent sought a medical report from her own GP.

I accept that this report did state that she was unfit to return to work.

I note that the Respondent did not advise her that they were considering terminating her employment.

I find that they should have pointed out in writing that given her length of absence they were contemplating terminating her employment and to seek a medical assessment in the light of that.

I find that she was dismissed on December 24^th and thankfully did not receive it until 30^th December 2015. I find that she did not expect to be dismissed.

I find that in these circumstances there should be no surprises.

So it was incumbent on the Respondent to clearly point out that if she fails to return to work and to attend work on a regular basis then she will be dismissed.

I find that they failed to do so.

I find that they should have sought their own Company Doctor advice on this matter before the dismissal.

Therefore I find that this dismissal was procedurally unfair.

2) Redundancy

I note that redundancy was not relied upon until this hearing.

Yet I note that a payment of €3,115.39 was made in February 2016.

I accept the Respondent’s rationale regarding its rationalisation of the business.

I find that a company is entitled to run its own affairs, provided the implications of its decision making are compliant with the law.

In this case I note that the position held by the Complainant was made redundant.

I note that she was invited to apply for this new post.

I note that she did not apply until after the post was filled, citing that she needed to consult her solicitor.

I note that she was offered the post of Clerk but she declined on the basis that the alleged bullying would have to stop.

I note that she declined to meet with the company to discuss matters.

I find that the Respondent was entitled to make the position of Supervisor redundant.

I note that they placed her at risk of redundancy.

I note that they then failed to properly look at alternatives to redundancy.

I find that the Complainant did not help her situation by not attending at meetings requested by the Respondent.

I find that the dismissal by reason of redundancy was somewhat procedurally unfair.

Therefore either way: dismissal by reason of incapability or by reason of redundancy or both the dismissal was unfair on procedural grounds.

I note that the Complainant is still unfit for work. Therefore re-instatement is not an appropriate redress.

I find that compensation is the most appropriate redress.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Also under Section 8 of the Unfair Dismissals Act, 1977

I have decided that the Respondent should pay the Complainant €4,000 in addition to the monies already paid. This quantum reflects the Complainant’s contribution to the dismissal. This is to be paid within six weeks of the date below.

1) Organisation of Working Time Act                 CA-00001898-001

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The holiday entitlements claimed have been paid.

Findings

I find that this matter has been resolved.

Decision:

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

Also under section 27 of the Organisation of Working Time Act, 1997 under Section 8 of the Unfair Dismissals Act, 1977

I have decided that no decision was required.

Eugene Hanly

Adjudication Officer

Dated: 7^th October 2016