ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00006012

Complaint for Resolution:

Date of Adjudication Hearing: 21/02/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Attendance at Hearing:

Preliminary Issue

The respondent raised a preliminary issue as to whether the complaint had been lodged within the statutory time limits.

The complaint was recorded by the WRC as having been submitted on November 18^th 2016. The controversy arises over the complainant’s termination date.

He stated this to be June 30^th 2016, which was the date on which his notice expired and which, if accepted, would bring it within jurisdiction.

The respondent states that it gave notice on April 21^st, describing it as being ‘effective today’, which if accepted as the date of termination would require an extension of the date on the basis of the established legal principles for doing so.

The complainant, in a written submission prior to the hearing relied on Section 1 of the Unfair Dismissal Act 1977 which describes date of dismissal as being;

'where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.’

Further, section 7 of Minimum Notice and Terms of Employment Act 1973 states that;

“In any case where an employee accepts payment in lieu of notice, the date of termination of the person’s employment shall be deemed to be the date on which notice if given would have expired.’

This matter was previously considered by the Employment Appeals Tribunal in Michael Gaboor v NYD Limited UD 2436/11, MN2435/11, RP2968/11 and WT 973/11. 

While the Gaboor case turned on a different point, namely whether an appeal against termination extended the notice period beyond that provided for under statute, it is correct to say that it reinforced the position that the effective date of dismissal is the expiry of the statutory notice period unless there is some contractual provision to the contrary.

I find therefore on this preliminary point and on the basis of the long established jurisprudence of the Employment Appeals Tribunal that the Adjudicator is required to take note of the statutory notice period in determining the date of final termination.

In this case the complainant had continuous employment since 1999 and was therefore entitled to eight weeks’ notice. Accordingly, taking that into consideration, I find that the complaint was lodged within the six month’s period required by the legislation.

Respondent’s Submission and Presentation:

The key element in the background to the case is to be found in a very extended period of absence on sick leave on the part of the complainant and the various steps taken to bring about a return to work, which in fact never did happen.

The complainant first went sick in June 2013 and did not return to work.

In September 2013 the complainant wrote to the Regional Manager including a complaint about his regional manager and also seeking a pay review. He referred to the possibility of holding a ‘mutually beneficial meeting’ and there was a reference to a possible claim related to bullying and harassment and constructive dismissal.

At that point he was referred to the company doctor. It was submitted that he told the doctor that he had no issues with any employee and was certified as unfit for work at that point but the doctor’s opinion was that he would be fit to return soon.

There was a further meeting in October 2013 and no issue was raised by the complainant against any of the company’s employees.

Other meetings followed; in January 2014 and on March 3^rd at which latter meeting the complainant said he would be returning to work.

The respondent was in touch again about a return to work on April 4^th and met the complainant on May 16^th. At this meeting the complainant suggested a return to work on June 9^th. This was described by the respondent as a ‘good meeting’.

A meeting shortly afterwards on June 19^th was also described as ‘useful’.

Then, in the course of May and June the complainant began to raise issues about two co-workers; one of whom had left the company the previous September, and another.

The respondent wrote on June 4^th asking the complainant to provide further detail on his complaints but he failed to do so.

A fourth meeting was held on December 2^nd, again with a view to the complainant returning but he did not respond to the offer.

On January 27^th 2015 he was certified as medically fit to return to work. There is a long gap until May when the complainant said he would return to work but not until June 22^nd. He raised an issue about some aspect of an employee benefit scheme. There was nothing further until February of the following year, 2016 when the medical practitioner made some reference to the need to resolve the complainant’s outstanding issues.

On March 11^th the company sought that he confirm his intention to return to work within ten days it would be assumed that he was tendering his resignation from the business. He replied on April 14th saying that he would return subject to two considerations; first an acknowledgement of the issues he had raised and secondly, a commitment that there would be no repetition of them.

The respondent pointed out on March 25^th that it could not undertake an investigation into the behaviour of someone who was no longer an employee of the company. It requested a response by April 1^st but did not receive it until April 4^th.

On April 12^th the respondent proposed a tailored induction plan to facilitate the complainant’s return to work and a meeting was proposed for April 18^th which the respondent could not attend as he was abroad on holidays; he suggested meeting on April 26^th.

On April 21^st the company wrote to the respondent indicating that as he had stated that he was well enough to return to work but had failed to do so it was terminating his employment with effect from April 21^st.

Complainant’s Submission and Presentation:

The narrative set out above was not disputed.

The complainant stated that he had been suffering from stress and could not return to work and he referred to the letter from his doctor in which he stated that he could not return to work until the issues he raised had been resolved.

When he received the notice terminating his employment he pointed out in a letter of April 25^th 2016 that he had given an indication of his intention to return and drew attention to the failure of the company to address the grievances he had raised.

Findings and Conclusions  

It is hard to find fault with the handling of this case by the respondent between the departure of the complainant on sick leave and the beginning of April 2016.

The company showed patience in dealing with the matter over a period of just under three years. It demonstrated consideration to the employee, re-scheduling three meeting in late 2015 and early 2016.

The complainant on the other hand appeared indecisive and incapable of committing to a return to work. The reasons advanced by him for not doing so were insubstantial and lacking in credibility.

In particular, his insistence on pursuing a complaint against a former colleague is hard to understand, or at least placing this as an impediment to a return to work, if the person was no longer there. His requirement that the company make a commitment that here would be no repetition of the alleged events was a demand it could not meet, other than in the most general terms (which it might easily have done).

In particular he says in his letter to the respondent of April 25^th that he ‘was clearly anxious to begin the return to work process’ and drew attention to the failure of the company to ‘deal with the outstanding matters requested and as documented as serious concerns in [the] doctor’s report of 5^th February’.

He accused the company of ‘not acting with bone fides vis a vis my return to employment’.

To describe this line of argument by the complainant as disingenuous would be something of an understatement. The complainant was certified as being fit to return to work in January 2015. At that point he had already been off work for just over a year and a half.

He contrived to avoid doing so for a further fifteen months mainly by making a complaint which lacked substance and credibility either from the point of view of its content or of the delay in making it.

The company had a good basis for suspecting that the complainant had no serious intention of returning to work, or that a point had been reached after almost three years where it was well entitled to begin a process to terminate his employment.

Unfortunately for the respondent, it appeared to have finally lost patience with the complainant in April and in doing so, at a single stroke unravelled its conduct of the case up to that point.

The complainant had, perhaps for the first time that one can see in the evidence, a genuine reason to seek a deferment of the induction meeting being sought. The company had the option to delay the meeting until his return; a matter of only a few days.

Clearly the non-availability of the complainant was the ‘last straw’ for the respondent and it is hard not to feel some sympathy with its position given the narrative outlined above.

What was required at that point (April 21^st 2016) if it wished to terminate the complainant’s employment was that it initiate the procedure to terminate the employment, and to do so in accordance with the well-established requirements of fair procedure for such a process.

Had it put the complainant on notice of a hearing and its purpose, and complied with the other, relatively simple requirements of fair procedure involved in the termination of employment, it would have been in compliance with those well-established procedural requirements and might, in principle have effected a fair termination.

Its failure to do so has meant that the termination of the employment was unfair.

In making my award I take account of the conduct of the complainant and his very substantial contribution to the situation throughout the period.

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.

I uphold complaint CA-00008249-001 and award the complainant €2,500.

Dated:   5^th May 2017