ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004575

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

Date of Adjudication Hearing: 24/10/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Unfair Dismissals Act 1977

Complainant’s Submission and Presentation:

The claimant commenced employment with the respondent on the 7^th.March 2005 as a Clerical Officer/Teller.A transfer of undertaking took place on the 27^th.March 2015.The claimant was on long term sick leave from the 15^th.May 2013 until her dismissal on the 3^rd.June 2016.

It was submitted that the occupational health doctor determined on the9th.March 2016 that the claimant would be unfit to return to work for the foreseeable future.The respondent proceeded to terminate the claimant’s contract of employment on medical grounds and this was communicated to her at a meeting on the 18^th.May 2016 – the employer was asked to reconsider their position and agreed to do so.The union invoked the provisions of Bolger v Showerings (Ireland) Ltd {1990}ELR 184, Lardner in support of their contention that the respondent had failed to give the claimant fair notice that her dismissal for incapacity was being considered and the respondent had failed to give the claimant an opportunity of being heard.

It was submitted that the first indication that dismissal was being considered was when the decision to dismiss was communicated to the claimant at the meeting on the 18^th.May 2016 It was advanced that while the employer indicated it would reconsider , it was contended that there was no evidence that genuine reconsideration took place – it was submitted that it follows that the claimant was never afforded an opportunity of being heard.

Respondent’s Submission and Presentation:

The respondent set out the background to the claimant’s employment history and summarised the claimant’s sick leave record from 2007- May 2013 when she commenced long term sick leave.It was submitted that 2 medical reports dated the 3^rd.July 2015 and the 9^th.March 2016 determined that the claimant was unfit to return for the foreseeable future.The respondent wrote to the claimant on the 9^th.May 2016 to arrange a meeting after they had shared the medical reports .The meeting took place on the 18^th.May – she was advised that the respondent had made a decision to terminate her contract of employment.Compensation/redundancy was sought and rejected on the grounds that this was no a redundancy situation and the possibility of medical recovery was remote.It was submitted that the board did reconsider the decision to dismiss at its meeting on the 23^rd.May but reaffirmed their original decision.It was submitted that given the length of absence and the bleak medical outlook that the dismissal was fair and fully justifiable.

Decision

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.I accept the contention of the claimant’ s representative that no evidence has been advanced to demonstrate that there was a genuine consideration of the claimant’s request for a review of the decision to dismiss – in any event any such reconsideration would have been post the decision to dismiss which was communicated to the claimant on the 18^th.May 2016.In such circumstances, I find the claimant was denied an opportunity to be heard and the dismissal was consequently procedurally unfair.I require the respondent to pay the claimant 4 weeks pay within 4 weeks of the date of this decision.

Minimum Notice and Terms of Employment Act 1973

Claimant’s Presentation and Submissions

It was submitted that the claimant was dismissed without notice or payment in lieu thereof and that she was entitled to compensation of 6 weeks pay in accordance with the Act – calculated as €2892.

Respondent’s Submission and Presentations

The respondent submitted that the claimant was not entitled to recover anything under the Minimum Notice Act – because she was not available for work having been off sick for a number of years.It was submitted that compensation only arises “ by reason of the default of the employer” .It was advanced that the claimant was not ready and willing to work .She was unavailable to work owing to long term illness and both sides medical reports agreed the claimant was unfit to work.The respondent invoked the provisions of McLoughlin v D.N.U. Ltd M 744/1987 , Lehane v Feeney UD 868/1987and Mcintyre v Hendrik Haulage Ltd M 2623/1992 in support of their contention that if notice had been given and the employee could not have worked out that notice because she was sick , there is no loss due to the employers default – the loss being due to the claimant’s inability to earn.

Decision

I have reviewed the evidence presented at the hearing and have concluded that as the claimant was unavailable to work any notice , she has no entitlement to compensation under the Act and accordingly I find against the claimant.

Dated:   20^th January 2017