Complainant

Respondent

Anonymised Parties

An Employee

A Manufacturing Company

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-00007245-001

29/09/2016

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

CA-00007042-001

16/09/2016

The Complainant transferred into the Respondent's company on 6 December 2015. The Complainant was employed by the Respondent as a cleaning operative, working a full-time, 40 hour per week contract, on an 8 x 5 day/ 4:30 pm to 12:30 am shift

The Complainant applied for and was granted two weeks annual leave commencing 20 June 2016. She was due to return to work on 4 July 2016.

On 30 June 2016 the Complainant telephoned her Supervisor and informed him that she would not be back on the due date as she was to have surgery. The Complainant advised her Supervisor that she would not be returning to work until 25 July 2016. At this point the Supervisor requested that a medical certificate be submitted.

As no certificate was submitted and several attempts by the Supervisor to make contact were unsuccessful, the Respondent's HR Manager wrote to the Complainant on 12 July 2016. This correspondence advised the Complainant, inter alia, that if she did not make contact with the Respondent upon receipt of the letter, her employment may be terminated.

By way of letter dated 26 July 2016 the Respondent informed the complainant that her employment was terminated with immediate effect. A further 3 weeks elapsed before correspondence, dated 15 August 2016, was received from the Complainant. The Respondent replied to this correspondence on 13 September 2016 stating that the decision to terminate the contract would not be revoked.

It was submitted on behalf of the Complainant that she is a Latvian national living and working in Ireland. The Complainant returns annually to Latvia for two weeks leave.

During her trip to Latvia in 2016 the Complainant attended a dentist on 27 June 2016, with a serious mouth infection. It was submitted that during this visit, the Complainant was treated for an infection and was also advised that extraction was required, which would have to take place under surgery. However, it was necessary to have the infection cleared before the surgery could take place. It was further submitted in evidence that the Complainant made 3 subsequent visits to the dentist on 11, 13 and 22 July 2017, with the extraction taking place on the final date.

In summing up on behalf of the Complainant, legal representative stated that the Respondent action in terminating the Complainant's contract of employment was disproportionate in the circumstances. It was contended that the matter should have been dealt with internally.

The Respondent stated in submission that the Complainant sought and was granted two weeks annual leave.

The Respondent is satisfied that, by her own admission, the Complainant was in Latvia on 30 June 2016 when she made phone contact with her Supervisor. The Respondent further stated that it received a medical certificate in August 2016, which was dated 27 June 2016 and which had issued in from a medical practice based locally in Ireland. The certificate, which was presented in evidence at the Hearing, says the claimant was suffering from dental work.

It was stated on behalf of the Respondent that the employee contract clearly states that a medical certificate must be submitted on or before the third day of consecutive absence and on a weekly basis thereafter. It is further submitted that failure to submit a medical certificate within the specified timeframe will render the employment contract null and void.

From the evidence presented at the Hearing it is clear that the termination of the Complainant's contract of employment resulted from her alleged failure to submit a medical certificate in a timely fashion.

The evidence shows that the Complainant developed a mouth infection while on two weeks annual leave in Latvia in 2016. Having made an appointment in the first week of annual leave (week beginning 20 June 2016), the Complainant attended a dentist in Latvia on 27 June. She was diagnosed as having a mouth infection and also requiring further dental work under surgery. As it was necessary to have the infection cleared before the surgery could take place, a further appointment was made for 22 July 2016.

This resulted in the Complainant requiring an additional three weeks leave from her workplace, as she was originally due to return to work on 4 July 2016. The evidence suggests that the Complainant contacted a Supervisor at her workplace on 30 June 2016 and advised that she would not be returning until 25 July 2016. It is contended that the Supervisor in question requested the Complainant to submit a medical certificate to cover the additional period.

On 12 July 2016, the Respondent wrote to the Complainant advising her of the requirement to submit medical certificates, on a weekly basis, for periods of absence from work. This correspondence also requested the Complainant to make contact with the Respondent immediately upon receipt of the letter. Finally, the Complainant was advised that if she did not make contact upon receipt of the letter, her employment with the Respondent "may be terminated."

According to the Complainant's evidence, she did not received this letter until she returned from Latvia on 25 July 2016. The Complainant's evidence further suggests that she immediately contacted the Respondent and spoke to Site Coordinator, who queried whether or not she had received the letter and further advised that she (the Complainant) should contact HR.

On 26 July 2016 the Respondent issued a further letter which advised that as there had been no contact or medical certificate submitted, the Complainant's contract of employment had been terminated. There is no evidence of any further contact with the Respondent by the Complainant for a further three weeks until, by letter dated 15 August 2016, she sought to raise the matter of contract termination as a grievance through the formal Grievance Procedure. This request was declined by the Respondent.

Having carefully considered all the evidence presented, I am of the view that the Complainant was considerably negligent and lax in the manner in which she dealt with the situation leading up to the termination of her contract of employment. I find that the Complainant was particularly remiss in her failure to make contact with HR on her return from Latvia on 25 July 2016. This is particularly so given that: (a) she was in receipt of a letter, dated 12 July 2016, which was clearly putting her on notice that her contract of employment may be terminated, (b) 25 July was the date her employer was expecting her back to work (as per her telephone conversation with her Supervisor on 30 June) and (c) the Site Coordinator she spoke with on 25 July clearly advised her to contact HR.

In addition, there are also serious question marks in relation to the credibility of the medical certificates presented by the Complainant. The medical certificate submitted by the Complainant to the Respondent in August 2016 from a local (Irish) Medical Clinic is dated 27 June 2016. As the evidence presented clearly places the Complainant in Latvia on 27 June 2016, where the procedures referred to on this certificate took place, the validity of the certificate issued in Ireland is, at a minimum, questionable.

Secondly, the Complainant presented a document at the Hearing which purported to be a certificate from the dental clinic in Latvia, where the Complainant had her procedures carried out. This document was written in Latvian and the request to provide a certified translation of same has not been complied with. This further undermines the credibility of the evidence presented by the Complainant in support of her complaint.

However, notwithstanding all of the above, there are a number of aspects of the Respondents decision to terminate the Complainant's contract of employment which also give rise for concern.

Firstly, the Supervisor to whom the Complainant spoke on 30 June 2016, when she advised that she was going for surgery and would not be returning until 25 July, requested that she submit a medical certificate to cover the additional period of absence. It would not be unreasonable, in that context, for the Complainant to consider that her absence was, therefore, approved by her employer.

Given that the Complainant was actually in Latvia at the time and that the Supervisor does not appear to have given any particular instruction with regard to timeframes for submitting the certificate, it was not unreasonable that the Complainant was of the view that she could present the certificate when she returned to work.

Secondly, it should also be noted that the letter from the Respondent, dated 12 July 2016, was sent to the Complainant at her Irish postal address. Therefore, the Complainant was unaware of the potential threat to her employment until she returned to Ireland on 25 July 2016. The evidence shows that, having read the letter on her return from leave, the Complainant did make contact with the Respondent on 25 July 2016.

While I accept that the Complainant did not make direct contact with HR, as advised by the Site Coordinator she spoke to on 25 July 2016, I believe it is reasonable to conclude that the Complainant had, in effect, complied with the instruction contained in the letter of 12 July 2016 to contact a member of Management or the HR Manager.

In that context, I find the Respondents issuing of a letter of termination on 26 July 2016, the day after the Complainant had made contact, in compliance with the earlier instruction to do so, to be somewhat questionable in terms of timing.

Finally, I find there to be some validity to the representations made on behalf of the Complainant, by her legal representative at the Hearing, in relation to the disproportionate nature of the sanction of dismissal. While I note that the Complainant's contract of employment, as submitted in evidence by the Respondent, states that failure to submit a medical certificate within the specified timeframe will render the employment contract null and void, the Respondent's letter of 12 July 2016, which restates this position, clearly set out, in the final paragraph, that the failure by the Complainant to make contact upon receipt of the letter "may" lead to a termination of the contract.

In a context where (a) the Respondent was out of the country at the time this issue arose and did not have sight of the letter of 12 July until her return on 25 July, at which point she did make contact with the Respondent and (b) where there does not appear to be any evidence of a previous disciplinary record, I find the Respondent's decision to terminate the contract of employment, in the arbitrary and hasty fashion it did on 26 July 2016, to be disproportionate in the circumstances.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I uphold the Complainant's complaint of unfair dismissal on the basis that the sanction is disproportionate.

Consequently, I direct that the Complainant receive a sum of €1,500.00 in compensation. This sum factors in the Complainant's own contribution to her termination and the credibility issues pertaining to elements of her evidence.

Sickness Absence

Proportionality of Sanction