ADJ-00008536

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008536

Parties:

Complaint(s):

Date of Adjudication Hearing: 03/10/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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).

Background:

The Claimant commenced employment with the Respondent on August 5th 2014 as a data analyst. The Claimant was remunerated at a net rate of €2,500 per month. On April 23rd the Claimant signed a contract with the Respondent as a permanent employee.

The Claimant initially had to complete 200 tasks per day and this rose to 1000 per day. The Claimant stated that she was asked to 'speed up' and increase her daily numbers of tasks. The Claimant sought clarification on what was expected but no reply was received. The Claimant began to work from home to keep up with her daily targets.

The claimants tasks were carried out with the continuous use of a mouse and keyboard and the claimant stated that she suffered a repetitive strain injury to her hand and wrist as a result.

Despite informing her manager of her injury in November 2015 and her GP's recommendation that she be sent for ergonomic assessment, the Claimant was informed by her team leader in February 2016 to increase her numbers. The Claimant went on sick leave from February 12th to March 12th 2016 due to her injuries. On returning to work the Claimant worked overtime on a daily basis to catch up and complete her daily targets. During the following months the Claimant stated that she had her WFH access revoked and never received an explanation as to why, she requested an appointment for psychotherapy from the respondent, she was spoken to about her performance in front of work colleagues, she began to experience panic attacks and migraines as a result of work related stress, she was also diagnosed with synovitis of long flexor tendons due to repetitive strain injury, she attended Coisceim counselling service due to the mental health difficulties she was experiencing as a result of stress in the workplace, she was requested to return her Laptop which she used for work and on July 20th 2016 her ID badge was cancelled and she was informed that she no longer worked there.

As stated in the claimants submission, she was on paid sick leave from June 20th 2016 to November 30th 2016 as a result of physical and mental work related injuries and unpaid sick leave from November 30th 2016 to March 22nd 2017, the latter date being the date she received her termination of employment notice.

It was stated in the respondents submission that they were asked by a client to have the claimant removed from a maps project. The respondent also submitted that they attempted to find alternative work for the claimant but were bound by the constraints of her work permit. The Respondent also submitted that following an e mail from the claimant highlighting suitable jobs within the respondents company for her, they offered her one of those positions subject to her completing a medical, the Claimant declined this offer.

Findings:

Both parties made written and verbal submissions at the hearing.

It is imperative that when dealing with claims of unfair dismissal that all circumstances are given consideration, but the most important aspect of the dismal process is whether or not fair procedures in the interests of natural justice and fairness are applied to the individual who is the subject of such a process, and it is clear the claimant in this instance did not receive the benefit of any procedures that resemble natural justice.

I find that the respondent did make efforts to retain the services of the claimant but were bound by the constraints of the conditions of the claimants work permit. But when certain aspects of these constraints were reduced the respondent offered the claimant employment, albeit a short duration, the claimant refused the offer despite the fact that the claimant had highlighted this position as a suitable alternative.

Furthermore I find the claimants actions somewhat contributed to the frustration in attempting to find a resolution. 

2. clearly states in the claimants submission that she was on paid sick leave from June 20th 2016 to November 30th 2016 as a result of her physical and mental injuries.(point 34 claimants submission). This is in direct contradiction to point 27 on the claimants submission where it is stated that on the 20th July 2016 the claimant attended work in the morning as usual. When she went to scan her work ID badge through the gate she was informed that it had been cancelled by the respondent. Why would the claimant be seeking access to a clients premises while on paid sick leave?. 

3. In reference to the use of her private e mail. The claimant stated that she did not wish to be contacted on it by work but yet stated that she uses it to contact her managers due to losing her remote access. The respondent accommodated the claimant by setting up a new work e mail for her but she did not use it. The only outcome of that action is to frustrate and hinder any attempt at finding a resolution furthermore an email from the claimant to the respondent in response to an e mail invitation to a meeting was not only aggressive but argumentative and once again could only serve to frustrate any attempt by the respondent to engage in constructive dialogue with the claimant. 
4. By letter dated August 26th 2016 the respondent made an offer of alternative employment, it also outlines a phased return to work to accommodate the claimants injury. This offer was not accepted by the claimant. It is also clear from correspondence to the claimant by letter dated July 25th 2016 that she would not be returning to the client site as it was clear that the relationship had broken down. The respondent however was paying the claimant sick pay well beyond her contractual entitlement. 

4              Why didn't the claimant use the respondents policies and procedures to raise a grievance about her perceived mistreatment. 

5. In the claimants submission (point 41) the claimant has (applied) for numerous jobs but was unable to attend for interview due to the severity of her panic attacks and her injured wrist and hand. The claimant must demonstrate that she has attempted to mitigate her losses and it appears that on her own admission she was unfit for work, this would have a direct bearing on any award. 

In conclusion, I find the dismissal of the claimant was unfair due to the absence of any procedures that subscribe to the interests of fairness and natural justice, however I find that the claimant contributed significantly to the dismissal by her actions and unwillingness to engage with respondent.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 award the claimant €653.85. 

Dated:   08/02/18

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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