UDD1720

The Appellant was employed by the Respondent from 8^thJune 2012 until the termination of her employment on 8^thJanuary 2016. The fact of dismissal is not in dispute.

The Appellant made a complaint to the Workplace Relations Commission on 11^thJanuary 2016 and the Adjudication Officer, in a decision dated 5^thOctober 2016, found that the Appellant had been unfairly dismissed and awarded the sum of €4,000 in compensation to be added to the payment of an amount of money paid to the Appellant at the time of her dismissal.

The Appellant, in her appeal, sought a greater award of compensation.

Background

The Appellant was employed as a credit supervisor with the Respondent. She was the direct line manager of three to five staff and she reported to Mr G, the Respondent’s Credit Manager. From December 2014 she reported to Mr D who took up the role of Credit Manager upon the departure from the employment of Mr G.

The Appellant complained that she was the victim of bullying by her direct reports, supported by her manager, shortly after 30^thOctober 2014. She detailed her complaints in letters to the Managing Director, Mr O’S, in November 2014.

The Staff reporting to the Appellant raised issues as regards bullying by the Appellant at or about the same time.

The Appellant was absent on certified sick leave from 15^thJune 2015 until her dismissal on 8^thJanuary 2016.

Her letter of dismissal stated that the Credit Manager had decided to dismiss her on grounds of ‘ill-health capability’.

Summary position of the Respondent

The Respondent submitted that the Appellant had made certain complaints as regards bullying by her reports and by her manager in late 2014. The Respondent submitted that these complaints were investigated by Mr O’S. The Respondent submitted that informal complaints had also been made by the Appellant’s direct reports as regards bullying by the Appellant. These complaints were also informally investigated by Mr O’S

The Respondent submitted that no findings were made against any person as a result of these investigations. The Respondent submitted that the procedures followed were informal. The Respondent also submitted that Mr O’S, in a letter of 9^thMarch 2015, offered to mediate between the Appellant and her team of direct reports. The Respondent received a letter dated 18^thMarch 2015 from the Appellant declining the offer of mediation.

The Respondent submitted that a restructuring of the Dublin office took place in mid-2015 which meant that the Appellant’s role was potentially redundant. She was absent on certified sick leave at the time and was written to on 29^thJuly 2015 to inform her of this situation. That letter invited the Appellant to apply for the post of manager of the Dublin credit office. The Respondent submitted that the Appellant expressed no interest in this position and, following interviews, another person was appointed to the role on 12^thAugust 2015.

The Respondent submitted that it had requested a medical report from the Appellant’s medical doctor with the consent of the Appellant and that report was received in October 2015. That medical report was submitted to the Court by the Respondent. It specified, in answer to a question from the Respondent to the medical doctor that the Appellant was unfit for work. That report also stated, in response to questions asking whether there were any short term or permanent adjustments to the Appellant’s work tasks or environment that would help facilitate rehabilitation or an early return to work, the following was recommended:

• ‘A resolution of the bullying in the workplace, the implementation of an anti-bullying policy and an assurance that any further episodes of bullying are effectively addressed in a timely manner’.

The Respondent submitted that a request was made of the Appellant on 4^thDecember to attend a further meeting. The Respondent submitted that the Appellant declined that invitation.

The Respondent submitted that, by letter of 24^thDecember 2015, Mr D advised the Appellant that she was being dismissed on grounds of ‘ill-health capability’. The letter advised the Appellant that she could appeal that decision by writing to the Managing Director of the Respondent.

The Respondent submitted that the Appellant wrote to the Respondent on 30^thDecember 2015 stating that she wished to appeal the decision to dismiss her and that further particulars would follow. The Respondent stated that nothing further was heard from the Appellant and no appeal process was initiated or undertaken.

The Respondent submitted that it had substantial grounds for the dismissal of the Appellant. The Respondent submitted that the Appellant remained unfit for work in September 2016.

Summary position of the Appellant.

The Appellant submitted that the she had been bullied at work by both her direct reports and by her manager. She submitted that she had made the managing director of the Respondent, Mr O’S, aware of her contention in this regard in October 2014. She submitted that she had written to the Respondent on 26^thJanuary 2015 setting out her concerns. She submitted that she continued to be bullied until she became unfit for work on 9^thFebruary 2015. She returned to work on 16^thApril and she submitted that she continued to be bullied and harassed. She was certified unfit for work again on 15^thJune 2015.

She submitted that the Respondent did not follow any procedure or produce any documentation purporting to demonstrate that her concerns had been dealt with through any procedure.

She submitted that the reason that she was unfit for work was the failure of the Respondent to adequately address her contention that she was being bullied and harassed at work. She stated that she was notified of her dismissal by letter dated 24^thDecember 2015 and that she was afforded no opportunity to appeal that decision notwithstanding her stating by letter dated 30^thDecember 2015 that she wished to appeal.

Discussion and Conclusions

The Appellant has set out to the Court a history, since October 2014, of reporting bullying and harassment to the Respondent. It is not for the Court in the within appeal to assess the validity of any allegations of bullying or harassment or to make findings in that regard.

The Respondent has set out that the complaints of the Appellant were investigated but has described only the most informal of processes as having been followed in that regard.

The Respondent contends that the dismissal of the Appellant was for substantial grounds. Those grounds according to the letter of 24^thDecember 2015 were ‘ill health incapacity’.

The Appellant’s medical doctor had, on request, advised the Respondent of a need to put procedures and undertakings in place as regards dealing with complaints of bullying. Such procedures, the medical doctor advised, were necessary to facilitate the Appellant in her return to work. No evidence has been placed before the Court of any attempt by the Respondent to act on the advice received. The Respondent did not demonstrate that any policies or procedures had been put in place.

The Respondent, one month after a meeting with the Appellant in November 2015, decided to dismiss her for the grounds stated and invited an appeal. That appeal was initiated by the Appellant but the Respondent failed to act on that appeal. The Respondent set out to the Court that following the letter of appeal nothing further was heard from the Appellant.

The decision to dismiss the Appellant was based on an assessment of incapacity unsupported by any medical validation. To the contrary, the only medical opinion submitted to the Court, that of the Appellant’s medical doctor who had been requested by the Respondent to make such a report, appeared to suggest that if certain steps were taken by the Respondent the Appellant’s return to work would be facilitated. Those steps were not taken.

A most significant aspect of the within matter is the failure of the Respondent to act on the appeal of the Appellant. No appeal was afforded to her and no engagement undertaken following her letter of 30^thDecember 2015 confirming her intention to appeal the decision to dismiss her. In the circumstance where an employer had written to an employee notifying of a decision to dismiss and that employee has written to confirm an intention to appeal, it is incumbent on the employer to act on that indication and to make arrangements to properly hear and consider the appeal. No such steps were taken in this case.

In a case of dismissal it is for the Respondent to demonstrate that the dismissal was fair and that the procedures employed in reaching a decision to dismiss and in arriving at the point of dismissal were fair. The Court concludes that the fundamental requirements of fair procedure have not been met by the Respondent. In particular an assessment of ill health incapacity has been made without apparent medical validation and in the face of what appears to be a failure by the Respondent to act upon the only medical report requested or secured. In addition, following the decision to dismiss and notwithstanding the fact that an intention to appeal was confirmed by the Appellant, no appeal of the decision to dismiss was arranged or facilitated.

In all of the circumstances the Court finds that the Appellant was unfairly dismissed.

Determination

The Court finds that the Appellant was unfairly dismissed. The Court determines that an award of compensation is appropriate in this case.

In assessing compensation, the Court notes that the Appellant remained unfit for work from the date of dismissal until 1^stMarch 2017, the date of the Court hearing. The Court has no information to suggest that the Appellant will remain unfit for work after that date. The Court therefore determines that the Respondent should make a payment of €20,000 to the Appellant in compensation for financial loss suffered as result of her dismissal. This amount is approximately equivalent to seven months’ salary of the Appellant at the time of her dismissal and is in addition to any sums paid upon the termination of her employment.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
8 May 2017.______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.