ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002727

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

Date of Adjudication Hearing: 25/01/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

Some Medical evidence from the Complainant was advanced post the hearing. It was copied to all parties and their views noted.

This case is closely linked to ADJ 3441 having the same parties and almost identical facts.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

Preliminary Issues

The claim is out of time. No reasonable cause is advanced to warrant an extension being allowed beyond the initial six months.

Substantive Issues

The Complainant was offered an opportunity to appeal the dismissal decision. She chose not to do so. In written / e mail correspondence she made it clear that she was emphatically rejecting the opportunity to appeal.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

1. Is the claim in time?

2. Has “reasonable cause” been advance to warrant granting an extension to allow the claim?

3. If an Extension of time is granted is there a valid claim for Unfair Dismissal?

Legislation involved and requirements of legislation:

Unfair Dismissal Act, 1977 and S.I. No 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures

Decision:

As above:

Question 1: Is the claim in time?

The Complainant’s employment ended on the 9^th October 2015.

Six (6) months after that date would be the 9^th of April 2016.

Her claim (CA-00003799) as received by the Workplace Relations Commission on the 12^th April 2016.

The Secretariat of the WRC pointed out to the Complainant that her claim did not appear to fall within the time limits and invited her to make a submission seeking the granting of an extension.

No such submission was received.

Accordingly is there now a case for an extension of time?

Question 2: “Reasonable cause” for an extension?

The Legislation is quoted below

Section 8 of the Unfair Dismissals Act, 1977.

(1B) Subsection (14) of section 41 of the Act of 2015 applies to a decision of an adjudication officer under subsection (1) as it applies to a decision of an adjudication officer under that section subject to the modification that the words ‘ subsection (1) of section 8 of the Act of 1977 ’ shall be substituted for the words ‘ this section ’ .

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General —

( a ) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General

Accordingly, having reviewed all the extensive correspondence including the medical reports and heard the oral evidence I was satisfied that “reasonable cause “ had been presented to justify an extension beyond the initial six months. The Complainant’s medical history clearly indicated a person who should be afforded some licence in regard to time limits

The Medical evidence submitted post the hearing date and copied to all the parties confirmed this opinion.

I granted an extension of time and the claim is within time as provided for by Section 8 (2) b above.

Question 3: Is there a Well-founded claim. ?

The Pertinent Facts to be considered:

The Complainant had a considerable pattern of Sick Absences.

This obviously caused considerable operational difficulties for Respondent. On the 27^th of January 2014 the Respondent wrote via e mail to the Complainant stating as follows

“We have to date been covering your position on a temporary / agency basis but this is becoming prohibitively expensive for us and we have therefore decided that we must, for cost reasons, fill the role on a permanent basis.”

It is not hard to see how this was taken as a quasi-dismissal by the Complainant although it has to be tempered by the fact that the Complainant was a beneficiary of the Disability /Income Plan of the Respondent which required that she is and remain an employee of the Respondent firm. The E mail did state that the Complainant would remain an “employee of the firm” while on the disability plan but on that disability payment ending “We will look to see what positions are available”.

On the ending of the period on the Disability Plan, i.e. she no longer being completely disabled from all work, the Respondent (letter of the 28^th September 2015) wrote to the Complainant stating

“we are currently fully staffed; we do not have a suitable position for you. In those circumstances we regret that we have no option other than to let you go as an employee with effect from the date of this letter.”

An offer of appeal was made.

In the facts I could not find any evidence of the Respondent seeking a further medical report of the Complainant’s condition and of any effort being made to establish what exactly her then capabilities were. The case of Humphries v Westwood Fitness [2004]ELR 296 come to mind where the nature of the enquiries and consultations, with the Complainant, an employer should make in these types of situations is set out. The cited case was taken under the Employment Equality Acts but is now generally accepted as setting the standards in these types of cases.

It was accepted that the Complainant was no longer completely unable to carry out her duties but in view of her extensive medical history particularly in the mental health area there was an onus on the employer, I felt, to allow considerable latitude in relation to Appeal deadlines and the interpretation of the initial Appeal Rejection e mail

In regard to the Appeal “rejection” by the Complainant on the 5^th October the “fragile” (a phrase used in medical reports) state of mind of the Complainant might have been reflected upon. The Complainant’s medical situation was well known to the Respondent.

I could not find evidence that any additional inquiries or consultations with the Complainant took place in September 2015. This was surprising as in mitigation for the Respondent;  the HR Director had always been most active in this case for a number of years and had always been most sympathetic.

The Complainant’s letter/e mail of the 2^nd November 2015 is clearly an Appeal, albeit not possibly procedurally lodged within the seven working days period offered in the Respondent letter of the 28^th September.

Taking the standard of the “Reasonable Employer” and the well know medical history of the Complainant the letter of the 2^nd November should have been taken as an Appeal and responded to as such.

Coupled with the E mail of the 27^th January 2014 the above matters lead me to the conclusion that procedurally an Unfair Dismissal had taken place.

Redress

Deciding on what Redress is “just and equitable” in this case is obviously complicated by the background factors and the medical evidence. These all impacted on her ability to secure employment and will all have an influence on future employability.

The Complainant was unemployed from September 2015 to late January, sick from 25^th January to 31^st May 2016 with her ankle injury and not available for work. She secured a place on a Community Employment Scheme from the 13th June 2016 and continues there.

Talking all factors into account and the mostly procedural issues involved in the Dismissal I award , under Section 7 (1)(ii) of the Act, as “ just and equitable having regard to all the circumstances” the sum of €2,250 gross as Compensation – this being approximately 4 week’s pay.

Dated:   2^nd May 2017