Complainant

Respondent

Anonymised Parties

General Operative

A Pig Farm

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00007099-001

13/09/2016

On 13   September ,2016, the Complainant lodged a complaint of Unfair Dismissal with   the WRC .The Claim was disputed by the Respondent and the case went to   hearing on April 4, 2017 .Dismissal was disputed .

The Complainant had worked at the Respondent Pig Farm for   a period of 14 months in a job he enjoyed when on 5 August, 2016, he   submitted a Sick Note to the Respondent to cover a planned 4 week absence. The   complainant had a pressing Medical problem for which he had been advised to   seek treatment.

On August 9, 2016,   The complainant received a missed call on his phone from the respondent .When   he called back, he was informed that the company “had to leave me go as they   needed someone to fill my role “. He was informed his P45 and Holiday pay   would be forwarded to him.

The complainant suggested the name of a locum replacement,   but was informed that the company had secured their own replacement. He was   advised to call back when he was better to see if his job was still available.

The complainant made contact on 8 September and was   informed that there was no work available. The complainant gave evidence of   loss and mitigation. The complainant did not have a contract of employment   .He subsequently secured work at a different Farm for a number of months.

The Respondent was aware of the complainants Medical   Condition and endeavoured to support him and standby him in the aftermath of   a Court case, following which he was placed on remand .He sustained a   Shoulder Injury in April 2016, necessitating a weeks sick leave .He took some   days off in June without notice and further absences followed.

The Respondent established that drugs had been found on   the property and the Gardaí were alerted. The Respondent was concerned for   the complainant’s welfare but was unable to keep his job for him when he went   for treatment. The Respondent was unable to keep his job open for him, was of   the view that that the complainant resigned his employment and was given an   additional payment on termination .The suggested locum for the complainants   position was not satisfactory.

The company was taken over on 8 September, 2016 and 4 of   the staff transferred .The respondent   submitted the staff handbook after the hearing and this was forwarded to the complainant.The   respondent submitted that they had acted reasonably in all the circumstances   .

I   have carefully considered both submissions presented in this case .I were   struck by the high level of support given to the complainant by the respondent   in the context of his medical difficulties. However, this is a complaint of   Unfair Dismissal and I must apply the law to the facts of the case.

The provisions for an Unfair dismissal are   set down in Section 6 of the Act.

6

6. — (1) Subject to the provisions   of this section, the dismissal of an employee shall be deemed, for the   purposes of this Act, to be an unfair dismissal unless, having regard to all   the circumstances, there were substantial grounds justifying the dismissal.

There are certain exclusions /defences available to a Respondent   incorporated in Section 6(4) of the Act.

(4)   Without prejudice to the generality of subsection (1) of this section, the   dismissal of an employee shall be deemed, for the purposes of this Act, not   to be an unfair dismissal, if it results wholly or mainly from one or more of   the following:

( a) the capability, competence or   qualifications of the employee for performing work of the kind which he was   employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee,   and

( d) the employee being unable to   work or continue to work in the position which he held without contravention   (by him or by his employer) of a duty or restriction imposed by or under any   statute or instrument made under statute.

(6) In   determining for the purposes of this Act whether the dismissal of an employee   was an unfair dismissal or not, it shall be for the employer to show that the   dismissal resulted wholly or mainly from one or more of the matters specified   in subsection (4) of this section or that there were other substantial   grounds justifying the dismissal.

I am also permitted to look at the reasonableness of the conduct of   the respondent in respect of the dismissal. This is not aimed at criticising   the respondent, or of substituting my views for that of the respondent,   rather this Section serves to assess for reasonableness.

(7) Without prejudice to the generality of   subsection (1) of this section, in determining if a dismissal is an unfair   dismissal, regard may be had, if the   adjudication officer , as the case may be, considers it appropriate to do so   —

( a ) to the reasonableness or   otherwise of the conduct (whether by act or omission) of the employer in   relation to the dismissal, and

(b ) to the extent (if any) of the   compliance or failure to comply by the employer, in relation to the employee,   with the procedure referred to in Section 14 (1) of this Act or   with the provisions of any code of practice referred to in paragraph (d)   (inserted by the Unfair Dismissals (Amendment) Act, 1993)Section 2 (2) of this Act. ]

I have established that a   period of turbulence accompanied the complainant during the latter months of   his employment, which caused the respondent to lose a certain amount of trust in him. I am   satisfied that the complainant did not tender his resignation as evidenced by   his undisputed record of events where he sought to return to work post sick leave.

The respondent submitted a staff handbook after the hearing, which   referred to one main company and some subsidiary companies .The complainant   received a copy of this on June 14 and did not submit further comment.

I reviewed the section on Absences and noted that there was a plainly   worded section on the protocol around management of sick leave, which did not   appear to have been followed. There was no reference to a period of a four   week absence being a watershed in determining grounds for dismissal .I did   note that there was some scope for   provision of a medical certificate to support a return to work post sick leave.   There was also provision for a review of sick leave.

I accept the evidence of the respondent that he believed that the   business would not sustain a four week absence of the complainant. However,   the complainant submitted a medical certificate which indicated that he was   unavailable to attend work for that period. It was not correct to interpret   this as a resignation.

Consequently, not withstanding the challenging work record prior to the   complainant’s submission of his intention to seek a four week treatment for   his condition, I found that there were serious procedural deficiencies in how   the respondent managed the period of sick leave, which were unreasonable   and fatal to the complainants employment.

I found that the respondent dismissed the complainant on 9 August,   2016 and there were no substantial   grounds justifying this action. I have found the complainant to be unfairly dismissed.

Decision:

Section 8 of the Unfair   Dismissals Acts, 1977 – 2015 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 have given consideration to   the evidence submitted by the complainant on mitigation and loss Given that I   have established that the complainant was unfairly dismissed by the respondent, In   accordance with Section 7 of the Act, I award compensation of 1,500 euro.