Re ADJ-00000356- Correction Order
This Correction Order is made pursuant to Section 39(2) of the Organisation of Working Act 1997 and Section 82(2) of the Employment Equality Act 1998-2015. It corrects the Decision issued on 4 July 2017 and should be read in conjunction with that Decision
Where the original order issued reads the hearing was held on 15 February 2016 and it should be corrected to read the date of hearing as being 9th January 2017.
Adjudication Reference: ADJ-00000356
Parties:
| Complainant | Respondent |
Anonymised Parties | A Factory Operative | A Food Manufacturer |
Representatives | Dermot Monahan Solicitors | Purdy Fitzgerald, Solicitors |
Complaint(s):
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-00000397-001 | 22/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00000397-002 | 22/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00000397-003 | 22/10/2015 |
Date of Adjudication Hearing: 09/Jan/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Location of Hearing: The Ardboyne Hotel
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 8(1B) of the Unfair Dismissals Act, 1977; Section 79 of the Employment Equality Act, 1998; and Section 11 of the Minimum Notice & Terms of Employment Act, 1973, 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).
Following the hearing the Complainant submitted documents to confirm mitigating circumstances in relation to seeking alternative employment.
Background:
This case refers to a Factory Operative of Latvian nationality with no proficiency in English (the complainant). She was employed with the respondent 20th April 2005 until 31st of August 2015. She worked in various roles in the organisation and at the time of the termination of employment she had been working in the peeling room for approximately five years. The Complaint’s pay was €9.15 at the time of her termination of employment. The complainant has alleged that following a visit to the company doctor on 27th August 2015 she was unfairly dismissed and received a letter of her dismissal from her employer on 31st August 2015. The Complaint also maintains that she was not provided with sufficient notice in accordance with her entitlements under Minimum Notice & Terms of Employment Act, 1973. |
Summary of Complainant’s Case:
CA-00000397-001 Unfair Dismissal The complaint alleged that she was unfairly dismissed on 31st August 2015 by her employer. She maintained that she was unfit to work due to an illness and that her dismissal occurred shortly following her return from annual leave on 23rd August 2015. The Complainant maintained that after she had visited the Company Doctor on 27th August 2015 she had a meeting with the Respondent and subsequently received a letter from the Respondent on 31st August 2015 terminating her employment. CA-00000397-002 Discrimination Under Gender, Age , Disability and Race Ground; Complaint of Victimisation, Reasonable Accommodation and Dismissal for Discriminatory reasons. The Complainant withdrew her complaint under the Employment Equality Act. CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973 The Complainant maintained that she received no notice of her dismissal. She contended that she received a letter on 31st August 2015 informing her that her employment had been terminated on 31st August 2015 with immediate effect. |
Summary of Respondent’s Case:
CA-00000397-001 Unfair Dismissal
The Respondent denied that the Complainant had been unfairly dismissed.
The Respondent maintained that the Complainant had told her work colleagues and her manager in August 2015, before she departed on annual leave, that she would not be returning to work from her annual leave on 23rd of August 2015.
The Complainant’s direct manager who supervised her work in a peeling room confirmed this had been said to her, although in cross examination the Manager could not remember the exact day this was said. However, the Manager had subsequently reported to her own manager that she had been told the Complainant did not intend to return to work after her leave. The Respondent advised that its HR manager was subsequently told.
The HR manager in his evidence outlined that he would have known the complainant well where he would have celebrated birthday parties and other family events with her over the years. He maintained that when the Complainant returned from her leave she submitted a sick cert for the period 24th August to 31st August 2015. The Respondent submitted that the sick cert from the Complainant’s GP mentioned that she was presenting with Arthropathy and back pain. The HR Manager advised that he happened to meet with the Complainant when she was submitting her sick cert and where the Complainant advised the HR manager in the presence of the Payroll Officer that she would be submitting sick certs for some time as the medical problem prevented her from returning to work. The Respondent maintained that the HR manager understood from his conversation with the Complainant that that the Complainant had advised the HR manager that she did not see herself returning to work at all. The conversation had been translated through the Pay Roll manager who was also Latvian.
As a consequence, the Complainant was invited to the company’s Doctor which she attended with her daughter on 27th August 2015.
Following the medical examination by the company doctor the HR manager advised that he had been informed by the Doctor that having reviewed the complainant that the Complaint had a number of medical issues and felt it was extremely unlikely that due to these medical issues she would be in a position to return to work again. The HR Manager asked the Doctor to provide this advice to him in writing which the Doctor did on 28th August 2015 in a letter, and where the Doctor stated “regarding her fitness to work, following my assessment I would be of the opinion that this lady is currently unable to work and it is extremely unlikely should she be in a position to return to work at all.
The HR manager argued that he subsequently met the Complainant with her daughter and where the Complainant agreed with the company doctor’s assessment that she would not be fit to return to work. The HR manager further maintained that he was advised by the Complainant that it was her intention to remain on social welfare and that she understood and accepted the Company would terminate her employment on health grounds. The Respondent advised that accordingly, by way of letter on 31st August 2015, the Respondent did in fact terminate the Complainant's employment.
The Respondent argued that it took all reasonable steps to protect the complainant's employment, however it was clear from its doctor’s perspective that she was not able to work and it wasn't likely that she would be able to work again. On that basis it maintained the Complainant had not been unfairly dismissed.
CA-00000397-002 Discrimination Under Gender, Age , Disability and Race Ground; Complaint of Victimisation, Reasonable Accommodation and Dismissal for Discriminatory reasons.
As this element of the complaint was withdrawn and such withdrawal was consented by the Respondent I am not entitled to consider or make findings in relation to this element of the complaint.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
The Respondent argued that as the Complainant was not available for work no claim arises under the minimum notice in terms of applying an act 1973. As such the Respondent maintained it was not in breach of the Act.
Findings and Conclusions:
CA-00000397-001 Unfair Dismissal
The fact that the Complainant’s employment was terminated by way of a letter dated 31st August 2015 is not in doubt.
The Complainant in her evidence advised that she never intended to give her notice. Upon her return from annual leave she reported sick with a sick certificate covering her for the period 24th to 31st August 2015. The Complainant also submitted a further sick cert from 31st August to 7th September 2015. The Complainant also denied that she told colleagues at work or her immediate manager that she did not intend to return to work after her annual leave in August 2015. However, she advised that she received a letter dismissing her from work dated 31st August 2015.
The parties in the evidence submitted at the hearing acknowledged that they met on 24th August 2015 when the Complainant was submitting her sick certificate. However, there is disagreement about what was discussed between the HR manager and the Complainant at that time. The Respondent’s Payroll Manager was present during the discussions and maintained in her evidence that she understood the Respondent had advised that she did not intend to return to work. The Complainant advised that she mentioned that she would remain out of work and receive social welfare benefits until she was fit to return, and maintained that was the nature of the conversation at the time. There is therefore a conflict in the evidence provided to the hearing.
The evidence also supports that the Complainant attended the Company’s doctor on 27th August 2015 with her daughter. She brought her daughter as she felt she needed somebody to act as a translator. The Complainant maintains that the meeting with the Company doctor was short, there was no detailed physical assessment of her, and she was asked a series of questions relating to her condition. The Complainant also maintained that at the time of her visit to the Doctor the HR manager visited the Doctor and spent some time talking with him, and inferring hthe HR manager had influenced the Doctor. Following that the Complainant maintains that she met with the HR manager, however the Complainant contended that she never agreed with the HR manager that she would never be fit to return to work or that she wished to leave. The Respondent’s daughter who also provided evidence at the hearing acknowledged that discussions took place with the HR manager after the doctor’s visit and where she would have encouraged her mother to consider less arduous work due to her age and condition. However, the daughter maintained that the Complainant never agreed that she did not want to return to work. There is therefore a conflict in the evidence presented to the hearing on this matter.
Evidence submitted to the hearing indicates that a sick certificates have been presented on behalf of the Complainant for three periods. One in March 2015 for a week, one certificate for the period 24th to 31st August 2015, and another sick certificate from 31st August 2015 to 7th September 2015. The hearing is satisfied that the last sick certificate was provide to the Respondent at the time.
The HR manager denied that he discussed the specific medical details of the Complainant with the Company doctor or that he influenced the Doctor’s decision to make a recommendation that the Complainant would never be fit to return to work.
There is also a conflict in the evidence regarding whether the Complainant told her colleagues and her immediate manager that she did not intend to return to work. In her evidence her manager recalled that she had been told this by the Complainant but she could not recall when she would have been told or when she heard it.
In accordance with the evidence I am satisfied that the Complainant received a letter from the Respondent dated 31st August 2015 where this letter terminated her employment. On the same date the Complainant had a sick certificate for a further week. There was no evidence presented to the hearing that indicated the Respondent considered this medical certificate either before terminating the contract of employment or when it received same. Instead the respondent has relied on the assertion that the Complainant had said before she went on leave, upon her return from leave, and at a meeting on 27th August 2015, that she did not intend to return to work. The Respondent has also relied upon its doctor’s opinion where the HR manager was observed meeting with the doctor at the time of the Complainant’s visit to the doctor, and where no independent medical opinion was sought to either ascertain the long term fitness of the Complainant, or what if any reasonable accommodation could be made to facilitate her return to work.
It is further noted that the Complainant’s contract states that either party may terminate the employment by giving one weeks’ notice in writing. No such notice was provided by the Complainant nor sought by the Respondent yet it now wishes to rely on the basis that the Complainant had in fact notified them on circa 24th and 27th August 2015 that she did not intend to return to work. Instead the Respondent maintains that it relied upon both a medical report from its own doctor and a verbal notification form the Complainant to terminate the Complainant’s contract of employment.
In accordance with Section 6 of the Unfair Dismissals Act, 1977, dismissal of an employee shall
be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. In addition, Section 6 (4) (a) of the Act states that the dismissal of an employee shall be deemed, for the purposes of the Act, not to be an unfair dismissal, if it results wholly or mainly from the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.
The hearing is mindful of the fact that the Respondent has argued that the Complainant advised she was unfit to work and that its own Doctor stated that the Complainant was unlikely to be fit to work again. It is further noted that the Complainant has contested this and has gained employment elsewhere since her job was terminated.
Whilst I acknowledge the evidence provided suggests the HR manager understood the Complainant had advised that she did not wish to return to work, I am satisfied under the circumstances that this could have been misunderstood by the HR manager at the time. I base this conclusion on the fact that following the Complainant’s medical examination her daughter advised that the Complainant never sought or said this. He daughter testified that it was the Complainant’s desire to return to work once she was fit to do so again.
The Act requires substantial grounds for the dismissal to be fair. I making my finding I have considered this and the following issues as submitted at the hearing:
- the fact that the Complainant never submitted her intention to terminate her employment in writing as is required in her contract of employment, nor did the Respondent seek that;
- the fact that the Respondent did have a meeting with the company doctor at the time of the Complainant being examined and subsequent to that, sent a letter of termination based on the Doctors opinion;
- the fact that the Respondent did not follow up to get a further medical opinion when the Complainant submitted a further one week sick cert on 31st August 2015; and
- the fact that there was language difficulties and a very strong probability that either or both the Complainant and Respondent could have misunderstood each other and particularly so in the Respondent relying on hearsay regarding what the Complainant might have indicated to others before going on leave, and its discussion with her on her return from leave.
I therefore find that the Dismissal was unfair in light of the Respondent’s impulse to dismiss the Complainant within one week which appears was initially based on an assumption and hearsay that she did not want to return to work, and subsequently an insufficiently thorough assessment of her capability to continue working on medical grounds. In this regard it is noted that the HR Manager met with the company doctor at the time of the Complainant’s assessment.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
The Respondent in its own admission decided to issue the Complainant with a termination letter on 31st August 2015. I am satisfied that this letter was issued on the assumption that the Complainant had said she did not intend to return to work and where, as identified above, I am not satisfied the Respondent had acted fairly in drawing this conclusion. The Respondent also contended that it was relying on the company doctor’s assessment for the basis of its dismissal.
The Complainant did not provide notice in writing as it was obliged to do under her contract of employment,. Therefore, particularly in light of the language difficulties and the fact the Complainant provided a further sick certificate, it is unreasonable for the Respondent to rely on an assumption that the Complainant gave verbal notice as negating its obligations to provide the Complaint with notice. I am therefore satisfied that it was the Respondent who decided to terminate the Complainant’s employment and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4.2 (d) of the Act requires if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks notice.
Decision:
Section 41 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.
CA-00000397-001 Unfair Dismissal
In accordance with Section 7 (1) of the Unfair Dismissal Act 1977, I find the Complainant was unfairly dismissed. I uphold that the Complainant is entitled to be compensated for the Unfair Dismissal. In deciding upon the compensation to be awarded I have taken into account that the Complainant was unavailable to work until 2nd November 2015 (based on Form MC2). It is further noted that the Complainant found work of 10 hours per week before 2 November 2015, and subsequently obtained part time work from 29th February 2016. As no P60 or other notification of earning has been provided I award compensation for 35 hours per week (based on her average week of 46 hours with before her dismissal) from 2nd November 2015 to 29th February 2016, a total of seventeen (17) weeks at €9.15 per hour which amounts to €5,444.25. In making this award I am conscious that the Complainant did not actively follow up her grievance for being dismissed on the basis as a foreign national she was not aware of her rights at the time of her dismissal.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
In accordance with Section 4(2) d of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to six weeks’ notice as she has over 10 years’ service but less than 15 years’ service at the time of her dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation amounting to six week pay.
Dated: 4th July 2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Unfair Dismissal, Minimum Notice |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00000356
Parties:
| Complainant | Respondent |
Anonymised Parties | A Factory Operative | A Food Manufacturer |
Representatives | Dermot Monahan Solicitors | Purdy Fitzgerald, Solicitors |
Complaint(s):
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-00000397-001 | 22/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00000397-002 | 22/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00000397-003 | 22/10/2015 |
Date of Adjudication Hearing: 15/02/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Location of Hearing: The Ardboyne Hotel
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 8(1B) of the Unfair Dismissals Act, 1977; Section 79 of the Employment Equality Act, 1998; and Section 11 of the Minimum Notice & Terms of Employment Act, 1973, 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).
Following the hearing the Complainant submitted documents to confirm mitigating circumstances in relation to seeking alternative employment.
Background:
This case refers to a Factory Operative of Latvian nationality with no proficiency in English (the complainant). She was employed with the respondent 20th April 2005 until 31st of August 2015. She worked in various roles in the organisation and at the time of the termination of employment she had been working in the peeling room for approximately five years. The Complaint’s pay was €9.15 at the time of her termination of employment. The complainant has alleged that following a visit to the company doctor on 27th August 2015 she was unfairly dismissed and received a letter of her dismissal from her employer on 31st August 2015. The Complaint also maintains that she was not provided with sufficient notice in accordance with her entitlements under Minimum Notice & Terms of Employment Act, 1973. |
Summary of Complainant’s Case:
CA-00000397-001 Unfair Dismissal The complaint alleged that she was unfairly dismissed on 31st August 2015 by her employer. She maintained that she was unfit to work due to an illness and that her dismissal occurred shortly following her return from annual leave on 23rd August 2015. The Complainant maintained that after she had visited the Company Doctor on 27th August 2015 she had a meeting with the Respondent and subsequently received a letter from the Respondent on 31st August 2015 terminating her employment. CA-00000397-002 Discrimination Under Gender, Age , Disability and Race Ground; Complaint of Victimisation, Reasonable Accommodation and Dismissal for Discriminatory reasons. The Complainant withdrew her complaint under the Employment Equality Act. CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973 The Complainant maintained that she received no notice of her dismissal. She contended that she received a letter on 31st August 2015 informing her that her employment had been terminated on 31st August 2015 with immediate effect. |
Summary of Respondent’s Case:
CA-00000397-001 Unfair Dismissal
The Respondent denied that the Complainant had been unfairly dismissed.
The Respondent maintained that the Complainant had told her work colleagues and her manager in August 2015, before she departed on annual leave, that she would not be returning to work from her annual leave on 23rd of August 2015.
The Complainant’s direct manager who supervised her work in a peeling room confirmed this had been said to her, although in cross examination the Manager could not remember the exact day this was said. However, the Manager had subsequently reported to her own manager that she had been told the Complainant did not intend to return to work after her leave. The Respondent advised that its HR manager was subsequently told.
The HR manager in his evidence outlined that he would have known the complainant well where he would have celebrated birthday parties and other family events with her over the years. He maintained that when the Complainant returned from her leave she submitted a sick cert for the period 24th August to 31st August 2015. The Respondent submitted that the sick cert from the Complainant’s GP mentioned that she was presenting with Arthropathy and back pain. The HR Manager advised that he happened to meet with the Complainant when she was submitting her sick cert and where the Complainant advised the HR manager in the presence of the Payroll Officer that she would be submitting sick certs for some time as the medical problem prevented her from returning to work. The Respondent maintained that the HR manager understood from his conversation with the Complainant that that the Complainant had advised the HR manager that she did not see herself returning to work at all. The conversation had been translated through the Pay Roll manager who was also Latvian.
As a consequence, the Complainant was invited to the company’s Doctor which she attended with her daughter on 27th August 2015.
Following the medical examination by the company doctor the HR manager advised that he had been informed by the Doctor that having reviewed the complainant that the Complaint had a number of medical issues and felt it was extremely unlikely that due to these medical issues she would be in a position to return to work again. The HR Manager asked the Doctor to provide this advice to him in writing which the Doctor did on 28th August 2015 in a letter, and where the Doctor stated “regarding her fitness to work, following my assessment I would be of the opinion that this lady is currently unable to work and it is extremely unlikely should she be in a position to return to work at all.
The HR manager argued that he subsequently met the Complainant with her daughter and where the Complainant agreed with the company doctor’s assessment that she would not be fit to return to work. The HR manager further maintained that he was advised by the Complainant that it was her intention to remain on social welfare and that she understood and accepted the Company would terminate her employment on health grounds. The Respondent advised that accordingly, by way of letter on 31st August 2015, the Respondent did in fact terminate the Complainant's employment.
The Respondent argued that it took all reasonable steps to protect the complainant's employment, however it was clear from its doctor’s perspective that she was not able to work and it wasn't likely that she would be able to work again. On that basis it maintained the Complainant had not been unfairly dismissed.
CA-00000397-002 Discrimination Under Gender, Age , Disability and Race Ground; Complaint of Victimisation, Reasonable Accommodation and Dismissal for Discriminatory reasons.
As this element of the complaint was withdrawn and such withdrawal was consented by the Respondent I am not entitled to consider or make findings in relation to this element of the complaint.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
The Respondent argued that as the Complainant was not available for work no claim arises under the minimum notice in terms of applying an act 1973. As such the Respondent maintained it was not in breach of the Act.
Findings and Conclusions:
CA-00000397-001 Unfair Dismissal
The fact that the Complainant’s employment was terminated by way of a letter dated 31st August 2015 is not in doubt.
The Complainant in her evidence advised that she never intended to give her notice. Upon her return from annual leave she reported sick with a sick certificate covering her for the period 24th to 31st August 2015. The Complainant also submitted a further sick cert from 31st August to 7th September 2015. The Complainant also denied that she told colleagues at work or her immediate manager that she did not intend to return to work after her annual leave in August 2015. However, she advised that she received a letter dismissing her from work dated 31st August 2015.
The parties in the evidence submitted at the hearing acknowledged that they met on 24th August 2015 when the Complainant was submitting her sick certificate. However, there is disagreement about what was discussed between the HR manager and the Complainant at that time. The Respondent’s Payroll Manager was present during the discussions and maintained in her evidence that she understood the Respondent had advised that she did not intend to return to work. The Complainant advised that she mentioned that she would remain out of work and receive social welfare benefits until she was fit to return, and maintained that was the nature of the conversation at the time. There is therefore a conflict in the evidence provided to the hearing.
The evidence also supports that the Complainant attended the Company’s doctor on 27th August 2015 with her daughter. She brought her daughter as she felt she needed somebody to act as a translator. The Complainant maintains that the meeting with the Company doctor was short, there was no detailed physical assessment of her, and she was asked a series of questions relating to her condition. The Complainant also maintained that at the time of her visit to the Doctor the HR manager visited the Doctor and spent some time talking with him, and inferring hthe HR manager had influenced the Doctor. Following that the Complainant maintains that she met with the HR manager, however the Complainant contended that she never agreed with the HR manager that she would never be fit to return to work or that she wished to leave. The Respondent’s daughter who also provided evidence at the hearing acknowledged that discussions took place with the HR manager after the doctor’s visit and where she would have encouraged her mother to consider less arduous work due to her age and condition. However, the daughter maintained that the Complainant never agreed that she did not want to return to work. There is therefore a conflict in the evidence presented to the hearing on this matter.
Evidence submitted to the hearing indicates that a sick certificates have been presented on behalf of the Complainant for three periods. One in March 2015 for a week, one certificate for the period 24th to 31st August 2015, and another sick certificate from 31st August 2015 to 7th September 2015. The hearing is satisfied that the last sick certificate was provide to the Respondent at the time.
The HR manager denied that he discussed the specific medical details of the Complainant with the Company doctor or that he influenced the Doctor’s decision to make a recommendation that the Complainant would never be fit to return to work.
There is also a conflict in the evidence regarding whether the Complainant told her colleagues and her immediate manager that she did not intend to return to work. In her evidence her manager recalled that she had been told this by the Complainant but she could not recall when she would have been told or when she heard it.
In accordance with the evidence I am satisfied that the Complainant received a letter from the Respondent dated 31st August 2015 where this letter terminated her employment. On the same date the Complainant had a sick certificate for a further week. There was no evidence presented to the hearing that indicated the Respondent considered this medical certificate either before terminating the contract of employment or when it received same. Instead the respondent has relied on the assertion that the Complainant had said before she went on leave, upon her return from leave, and at a meeting on 27th August 2015, that she did not intend to return to work. The Respondent has also relied upon its doctor’s opinion where the HR manager was observed meeting with the doctor at the time of the Complainant’s visit to the doctor, and where no independent medical opinion was sought to either ascertain the long term fitness of the Complainant, or what if any reasonable accommodation could be made to facilitate her return to work.
It is further noted that the Complainant’s contract states that either party may terminate the employment by giving one weeks’ notice in writing. No such notice was provided by the Complainant nor sought by the Respondent yet it now wishes to rely on the basis that the Complainant had in fact notified them on circa 24th and 27th August 2015 that she did not intend to return to work. Instead the Respondent maintains that it relied upon both a medical report from its own doctor and a verbal notification form the Complainant to terminate the Complainant’s contract of employment.
In accordance with Section 6 of the Unfair Dismissals Act, 1977, dismissal of an employee shall
be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. In addition, Section 6 (4) (a) of the Act states that the dismissal of an employee shall be deemed, for the purposes of the Act, not to be an unfair dismissal, if it results wholly or mainly from the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.
The hearing is mindful of the fact that the Respondent has argued that the Complainant advised she was unfit to work and that its own Doctor stated that the Complainant was unlikely to be fit to work again. It is further noted that the Complainant has contested this and has gained employment elsewhere since her job was terminated.
Whilst I acknowledge the evidence provided suggests the HR manager understood the Complainant had advised that she did not wish to return to work, I am satisfied under the circumstances that this could have been misunderstood by the HR manager at the time. I base this conclusion on the fact that following the Complainant’s medical examination her daughter advised that the Complainant never sought or said this. He daughter testified that it was the Complainant’s desire to return to work once she was fit to do so again.
The Act requires substantial grounds for the dismissal to be fair. I making my finding I have considered this and the following issues as submitted at the hearing:
the fact that the Complainant never submitted her intention to terminate her employment in writing as is required in her contract of employment, nor did the Respondent seek that;
the fact that the Respondent did have a meeting with the company doctor at the time of the Complainant being examined and subsequent to that, sent a letter of termination based on the Doctors opinion;
the fact that the Respondent did not follow up to get a further medical opinion when the Complainant submitted a further one week sick cert on 31st August 2015; and
the fact that there was language difficulties and a very strong probability that either or both the Complainant and Respondent could have misunderstood each other and particularly so in the Respondent relying on hearsay regarding what the Complainant might have indicated to others before going on leave, and its discussion with her on her return from leave.
I therefore find that the Dismissal was unfair in light of the Respondent’s impulse to dismiss the Complainant within one week which appears was initially based on an assumption and hearsay that she did not want to return to work, and subsequently an insufficiently thorough assessment of her capability to continue working on medical grounds. In this regard it is noted that the HR Manager met with the company doctor at the time of the Complainant’s assessment.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
The Respondent in its own admission decided to issue the Complainant with a termination letter on 31st August 2015. I am satisfied that this letter was issued on the assumption that the Complainant had said she did not intend to return to work and where, as identified above, I am not satisfied the Respondent had acted fairly in drawing this conclusion. The Respondent also contended that it was relying on the company doctor’s assessment for the basis of its dismissal.
The Complainant did not provide notice in writing as it was obliged to do under her contract of employment,. Therefore, particularly in light of the language difficulties and the fact the Complainant provided a further sick certificate, it is unreasonable for the Respondent to rely on an assumption that the Complainant gave verbal notice as negating its obligations to provide the Complaint with notice. I am therefore satisfied that it was the Respondent who decided to terminate the Complainant’s employment and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4.2 (d) of the Act requires if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks notice.
Decision:
Section 41 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.
CA-00000397-001 Unfair Dismissal
In accordance with Section 7 (1) of the Unfair Dismissal Act 1977, I find the Complainant was unfairly dismissed. I uphold that the Complainant is entitled to be compensated for the Unfair Dismissal. In deciding upon the compensation to be awarded I have taken into account that the Complainant was unavailable to work until 2nd November 2015 (based on Form MC2). It is further noted that the Complainant found work of 10 hours per week before 2 November 2015, and subsequently obtained part time work from 29th February 2016. As no P60 or other notification of earning has been provided I award compensation for 35 hours per week (based on her average week of 46 hours with before her dismissal) from 2nd November 2015 to 29th February 2016, a total of seventeen (17) weeks at €9.15 per hour which amounts to €5,444.25. In making this award I am conscious that the Complainant did not actively follow up her grievance for being dismissed on the basis as a foreign national she was not aware of her rights at the time of her dismissal.
CA-00000397-003 Complaint of not receiving Statutory Minimum Notice under the Minimum Notice and Terms of Employment Act, 1973
In accordance with Section 4(2) d of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to six weeks’ notice as she has over 10 years’ service but less than 15 years’ service at the time of her dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation amounting to six week pay.
Dated: 4th July 2014
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Unfair Dismissal, Minimum Notice |