Complainant

Respondent

Anonymised Parties

Services Officer

State Body

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-00012421-001

11/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012421-002

11/07/2017

The Complainant was employed as a Services Officer from 20th July 2015 to 13th January 2017. He was paid €451.52 per week. He has claimed that he was unfairly dismissed and has sought compensation. He has also claimed that there were illegal deductions from his wages.

The Complainant was dismissed. His probationary period was extended by six months. During his employment he was absent for 66 days. While he was on sick leave he failed to comply with notification requirements regarding medical certificates, notifying his employer and notifying about his return to work. So, it was not just his absence but also how he handled his absence. The probationary period was to ensure suitability. While his initial reviews were satisfactory difficulties arose with punctuality and attendance from around November 2015. Initially it was dealt with informally but matters were escalated to a formal footing and in writing. The matters became even more pronounced and resulted in a proposal to terminate the employment in June 2016. Following representations made on his behalf his probation was extended by 6 months. His attendance and punctuality deteriorated further during this extended period. Due to his absence the other three Services Officers were obliged to cover his work on a regular and unplanned basis. During this time he was given every opportunity and support to assist him address these issues, these included the services of the Employment Assistance Service, an appointment with the Chief Medical Officer and the extension of his probation. The Respondent accepted late provision of medical certificates outside of the required period, which enabled him to receive pay while otherwise on unauthorised leave. His contract of employment clearly set out in Sec 5 the performance review process and in Sec 7 it provided for the extension of the probation. Sec 14 of his contract clearly sets out the provisions of sick leave. They set out in great detail the trail of correspondence and activity from 7th March 2016 to his dismissal on 13th January 2017. The Respondent held 4 probationary reviews. The Complainant objected to not being made permanent but did accept the extension to his probationary period. When he appealed against the action of the Respondent he failed to attend work the following day. 56 % his absence was in the extended period of the probation. He continuously failed to demonstrate satisfactory service, by reason of failings in punctuality, attendance and non-compliance with notification and leave requirements. Ultimately his employment was terminated on 13th January 2017. The Respondent was obliged by statute not to retain him in employment. The Respondent stated that he was afforded fair procedure at all times. He was offered the opportunity to make representation once the proposal to terminate was made and he availed of that opportunity. He was offered an opportunity to appeal the decision which he did. He was afforded the opportunity of an oral hearing and to have representation with him. He was at all times treated fairly and reasonably. He was dismissed in accordance with fair procedure and in circumstances where he had not demonstrated performance during his probation or extended probation. Therefore this claim should be dismissed.

I note the written and verbal submissions made by both parties.

I note the contractual provisions pertaining to reviews of performance in Sec 5 of the contract of employment.

I find that the Respondent was entitled and obliged to carry out periodic reviews of the Complainant’s performance and attendance during probation.

I note that Sec 7 of the contract of employment provides for an extension to the probationary period. Therefore, I find that the Respondent was acting in accordance with his contractual provisions in extending the probationary peruiod.

I also note that the Complainant accepted the extension to his probation.

I note that his contract of employment in Sec 14 clearly sets out the provisions of the sick pay scheme and the notification requirements.

I note that he was absent for 66 days in this employment.

I note that 56 % of all absence was in the extended period of the probation.

I find that the Complainant failed to comply with the notification requirements of the sick pay scheme.

I note that the Respondent exercised a considerable amount of leniency and discretion in its application of the rules of sick pay.

I find that the Complainant failed to fulfil his contract of employment, which is to attend work on a regular basis.

I find that this is a fundament breach of his contract of employment.

I am satisfied that the Respondent showed considerable tolerance in this case, which took into consideration his personal difficulties.

However, ultimately the Complainant failed to respond and correct his absence problems.

I found no evidence whatsoever that he was dismissed because the Respondent didn’t like him or because of where he allegedly took his breaks.

I do not accept his statement that he never received warnings or disciplinary action.

I find that he was on probation. This is the period where an employer assesses the suitability of a new employee and the new employee assesses the new employer’s suitability to their needs.

In this case the Respondent carried out four reviews and extended the probation which is a very clear signal of their concerns about his suitability.

I find that the Respondent applied fair procedure throughout the process and had sufficient reason to terminate the employment.

Therefore, I find that this dismissal was both substantively and procedurally fair.

The Complainant stated that he was advised by the Respondent that he owed them money because of an overpayment in wages resulting from sick leave. He never consented to this deduction. He is claiming that the recoupment of the overpayment is an illegal deduction from wages.

The Respondent stated that he was paid in full pending the receipt of medical certificates, which were delayed. Upon applying these certificates then it was established that he was overpaid. According to Sec 5.5 of the Payment of Wages Act they were entitled to recoup an overpayment. They wrote him on numerous occasions seeking the repayment of €733.00. He did not respond. Not responding is a form of consent. They then recouped the amount from a refund of pension contributions. This recoupment was made when he was not an employee. This claim is rejected.

I note that the Complainant failed to present medical certificates on time.

I note that the Respondent exercised a degree of discretion to paying him while out sick in the absence of medical certificates.

I note that upon receipt of the medical certificates it was established that he had been overpaid according to the rules of the sick pay scheme.

I find that this was an overpayment.

I note that Sec 5(5) of the payment of Wages Act states, “Nothing in this section applies to a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where – (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of (I) any overpayment of wages.

Therefore, I find that the Respondent was entitled to implement the reimbursement according to Sec 5(5) of this Act.

Unfair Dismissal and deductions from wages