ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006415

 Anonymised PartiesA Personal AssistantA Charity   Representatives (Solicitor)                                        

Complaint:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00008838-001 17/12/2016   Date of Adjudication Hearing: 03/08/2017 Venue: Lansdowne House Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

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

Background:

The Complainant was employed as a PA from the 15th December 2005 to the 14th July 2016. She alleges that she was absent from work on sick leave since September 2014 as a result of a workplace injury. She stated that she submitted medical certificates to the Respondent on an ongoing basis during the period of her absence. She informed the Respondent by email on the 20th June 2016 that she was ready to return to work as the social welfare review board confirmed that she was fit to return to work. On the 14th July 2016, she received a letter from the Respondent stating: “As you have been absent without leave since 7th November 2015, we have had no other option but to adopt the view that you did not wish to continue in your employment with the respondent. As such, your previous working hours have been reallocated and are therefore no longer available. Your contract of employment with the respondent is therefore ceased with immediate effect.” She wrote to the Respondent on the 17th August and pointed out that she continued to provide medical certificates to [the respondent] throughout her period of absence from work due to the effects of a work related back injury and the suggestion that no medical certificates have been received since 6th November 2015 is totally incorrect. The Respondent wrote to the Complainant on the 25th October 2016 “During the period June 2015, July 2015, August 2015 and October 2015 there were various communications exchanged between you and the [respondent] in relation to your sick leave and your failure to submit medical certificates and the consequences of the failure to do so. The last medical certificate received by the respondent was on the 9th October 2015. Therefore, you are considered to be absent without leave. You were reminded on numerous occasions of your obligations to comply with the provisions of the [respondent] Absence Management Policy and the consequences of failing to do so. Consequently, you frustrated your contract of employment and are no longer an employer of the [respondent]. The Complainant filed a complaint under the Unfair Dismissals Act 1977 on the 17th December 2016 alleging that she was unfairly dismissed by the Respondent.

Summary of Respondent’s Case:

The Respondent outlined the following submissions at the hearing: The Respondent is in receipt of recent email correspondence of the 20th and 27th June 2016 in which the Complainant indicated her intention to return to work, having been cleared to do so by the Social Welfare Medical Review Board. The Complaint has been absent from work from September 2014. The Respondent received medical certificates covering her absence up to 6th November 2015, however no further medical certificates have been received since that date. The respondent recognises that ill health is an unavoidable fact of life and to this end has an Absence Management Policy in place which sets out the rules governing sick pay and the procedures to be followed when availing of sick leave. From previous correspondence from HR over the course of the Complainant’s absence, you were advised that employees are required to comply with the provisions of the policy when they are unable to attend work due to illness. Specifically, medical certificates are required from the 3rd day onwards and must cover the full period of the absence. Medical certificates much be submitted on a fortnightly basis in a timely manner to facilitate rostering and cover arrangements so as to ensure service delivery is not impacted. The Respondent has not received medical certificates or any other communication from the Complainant since the 7th November 2015 and she has not been on any other form of approved leave. The Complainant has been viewed as being absent without leave effective from that date. Employment is dependent on the employer providing a role and the employee being able to fulfil that role through regular and uninterrupted attendance at work. The Complainant has been absent without leave since 7th November 2015 and the Respondent therefore, has no other option but to adopt the view that she does not wish to continue in her employment with the respondent. As a result, her previous working hours have been reallocated and are therefore no longer available. Her contract of employment with the respondent is therefore ceased with immediate effect. Her P45 will be issued to her new address early next week. The Respondent received correspondence from the Complainant on the 17th August 2016, 1st September 2016, 16th September 2016 and 6th October 2016 in response to her dismissal. The Respondent outlined the following position: The Respondent now has had an opportunity to review all of the documentation in relation to the Complainant’s employment. Two particular matters of a material nature arose in the course of the Complainant’s employment with it. The Complainant worked with the respondent in the capacity of a PA providing services to a vulnerable and disabled service user. By letter dated 16th February 2015, the solicitor for that particular service user wrote to the respondent in connection with the Complainant.   The letter in question made certain very serious allegations against the Complainant pertaining to significant sums of money that had been taken/misappropriated from the service user by the Complainant. The allegations stated that as part of the Complainant’s duty in her capacity of PA she had access to the service user’s finances to assist with day to day living and expenditure. The sum of money involved, which was alleged to have been misappropriated was €28,000 and this misappropriation was alleged to have been carried out by way of fraudulent cheques being issued. In addition, it was alleged by the service user that further sums of moneys had been loaned to the Complainant and had never been repaid and that furniture belonging to the service user had also been allegedly taken by the Complainant. The solicitors concerned informed the respondent that they had written directly to the Complainant in her personal capacity in relation to the money allegedly taken from the service user’s account and were awaiting a response from the Complainant.   The respondent in its capacity as the employer of the Complainant was put on notice by the solicitors that the Complainant was employed by the respondent when the alleged offences took place. The respondent wrote to the solicitors concerned on the 25th February 2015 informing them that given the very serious criminal nature of the allegations detailed in their letter of the 16th February 2015 that the matter should be referred to An Garda Síochána for an investigation. The respondent wrote to the Complainant on the 27th April 2015 enclosing a copy of the letter received from the service user’s solicitors and informed the Complainant that the matter was being viewed as extremely serious. The Complainant was reminded of the Respondent’s Code of Conduct whereby the acceptance of gifts or borrowing money from a service user is viewed as gross misconduct. The Complainant was also informed that an investigation was to take place by the respondent and in order to conduct the internal investigation it was necessary to ascertain the Complainant responses to the allegations made against her. As the Complainant was on certified sick leave at the time, as an alternative to scheduling a meeting with the Complainant, at that point the Complainant was requested to submit a written statement outlining her responses to the allegations made by the service user’s solicitors in their letter dated 16th February 2015. That written statement was to be furnished as soon as possible but no later than close of business on Friday 8th May 2015. The Complainant was provided with a copy of the Respondent’s Disciplinary Policy as well as a copy of its Code of Conduct. It was entirely reasonable for the respondent to seek an explanation from the Complainant given the very serious nature of the allegations which had been made against her. The respondent received further correspondence from the service user’s solicitors by letter dated the 27th April 2015 informing the respondent that it intended prosecuting the allegations on behalf of the service user and that they intended to name the respondent and the Complainant as joint defendant in the said action. No response was received by the respondent from the Complainant to its letter dated the 27th April 2015. On the 5th June 2015, a further letter issued from the respondent to the Complainant informing her that she had failed to respond to the request for a response to the allegation made by the particular service user. The Complainant was asked to attend a meeting with the respondent’s HR staff on the 12th June 2015.   Further, the Complainant was requested to confirm her attendance at the meeting before the 10th June 2015. On the 6th June 2015, the Complainant sent an email to the respondent stating that her solicitor was dealing with the allegations which had been made by the service user in question and she would not agree to be questioned by the respondent in relation to these allegations. The Complainant alleged that she had a doctors’ appointment on the 12th June 2015 and that she would not be able to attend the meeting which had been arranged for the 12th June 2015. The respondent wrote to the Complainant on the 10th June 2015 setting out the procedural issues pertaining to the investigation process and requested the name of her solicitor. The Complainant was also informed that a new date for the investigation meeting would be sent shortly. On the 10th June 2015, an email was received by the Complainant that she was free to attend an investigation meeting any time the following month but he Complainant failed to provide the name of her solicitor who was dealing with the allegations made in the letter dated the 16th February 2015. On the 7th August 2015, a letter issued to the Complainant from respondent stating that the investigation meeting was rescheduled for the 25th August 2015 and the Complainant was requested to furnish the name of her representative who would accompany her at the meeting and to confirm her attendance no later than the 21st August 2015. A further email was sent to the Complainant on the 11th August 2015 enclosing a copy of the correspondence in relation to the investigation meeting and the Complainant was again requested to confirm her attendance at close of business on the 21st August 2015. On the 21st August 2015, the Complainant sent an email to respondent HR stating that she had an appointment the day of the meeting and that her solicitor had dealt with the allegations made by the service user and that she was not mentally fit to be engaging with the investigation and would not be attending.   The respondent received no correspondence from any solicitor’s firm or any representative on the behalf of the Complainant in relation to addressing the allegations made. The Complainant refused and neglected to engage or co-operate with her employer in dealing with these most serious allegations made against her. The second matter of material nature was the issue of the Complainant’s sick leave. There was extensive correspondence exchanged between the respondent and the Complainant. In September 2014, October 2014, November 2015, January 2015, February 2015, March 2015 and April 2015 on the issue of the Complainant’s sick leave. The Complainant was advised on numerous occasions of the procedures in relation to the submission of sick certificates in respect of her absence from duty. The Absence Management Policy of the respondent was sent to the Complainant on a number of occasions and further the contents of the said policy were explained to the Complainant on a number of occasions also. In June 2015, the respondent wrote to the Complainant once again requesting her to submit outstanding sick certificates covering the period 27th March 2015 to 26th June 2015 and reminded her of her duty to comply with the provision of the Absence Management Policy and the Complainant was put on notice that if she failed to submit sick certificates she would be considered to be absent without leave. The Complainant wrote to the respondent on the 2nd July 2015 stating that she was ill and had forgot to submit medical certificates. There were two further communications to the Complainant, namely on the 3rd July 2015 and 27th July 2015 in relation to the Complainant’s failure to submit medical certification and the consequences of her failing to do so. During the period, June 2015, July 2015, August 2015 and October 2015 there were various communications exchanged between the respondent and the Complainant in relation to the Complainant’s sick leave and her failure to submit medical certificates and the consequences of her failure to do so. The last medical certificate received by the respondent from the Complainant was on the 9th October 2015. Thereafter the Complainant was considered to be absent without leave and no further medical certificates were submitted by the Complainant. The Complainant failed, refused and neglected to engage or co-operate with her employer in dealing with the investigation process into the very serious allegation made against her. Up until September 2016 the respondent have had no record of any solicitor, representative trade union or otherwise writing to it in relation to the said allegations. The Complainant failed, refused and neglected to submit medical certificates or keep her employer appraised of her absence from duty in accordance with the respondent’s Absence Management Policy despite the fact that there were extensive communications with the Complainant for a protracted period. The Complainant was reminded on numerous occasions of her obligations to comply with the provisions of the respondent Absence Management Policy and the consequences of her failing to do so. Consequently, the Complainant frustrated her contract and is no longer an employee of the respondent.  

Summary of Complainant’s Case:

The following is a summary of the Complainant submission: The Complainant was totally taken back by the contents of the letter that she received by the Respondent on the 17th August 2016, which stated that her contract of employed is “ceased with immediate effect from the 14th July 2016”. The Complainant stated that she continued to provide medical certificates to the Respondent throughout the period of her absence from work due to the effects of a work related back injury which occurred in September 2014.   The suggestion that no medical certificates had been received by the Respondent since 6th November 2015 is totally incorrect. Copies of medical certificates were submitted at the hearing, which shows that the Complainant did submit medical certificates on the following dates: ·        19th December 2015 – 5th February 2016 ·        6th February 2016 – 18th March 2016 ·        19th March 2016 – 8th April 2016 ·        9th April 2016 – 20th April 2016 Throughout the period of the Complainant’s absence from the workplace she was never once informed that her employed was at risk. The Complainant accepts that she failed to submit medical certificates on a number of occasions on time and in line with the Absence Management Policy. However, this omission was due to the fact that she was ill and that she had moved home on a number of occasions. In June 2016, she submitted emails to the Respondent advising that she had been cleared to return to work by the Social Welfare GP and requested the Respondent to advise what date should she return. The Respondent ignored her emails. On the 14th July 2016, she received a letter from the Respondent advising her that her contract of employment with the respondent has ceased with immediate effect because she failed to submit medical certificates on time and in line with the Absence Management Policy. The Respondent dismissed her unfairly.

Findings and Conclusions:

The Respondent has argued that the Complainant’s contract of employment ended due to frustration because of her failure to submit medical certificates or to keep her employer appraised of her absence from duty in accordance with the respondent’s Absent Management Policy, despite the fact there were extensive communications with the Complainant in relation to this matter over a protracted period of time. By letter dated 27th July 2015, the Respondent advised the Complainant that they were providing her with one final opportunity to provide outstanding medical certificates in line with the respondent’s Absence Management Policy.   A deadline of no later than the 11th August 2015 was put in place. She was advised that her failure to comply with this requirement may result in disciplinary action, up to and including dismissal. The deadline came and went and the Respondent took no disciplinary action. The Respondent continued to engage with the Complainant regarding the receipt of medical certificates in line with the Absence Management Policy. This engagement continued in August and October 2015. On the 14th July 2016, the Respondent wrote to the Complainant advising her that her contract of employer with it is ceased with immediate effect. On the 25th October 2016, the Respondent wrote to the Complainant stating that she had frustrated her contract of employment and is no longer an employee of the respondent. The Respondent failed to apply the disciplinary procedures against the Complainant for failing to abide by the Absence Management Policy, despite advising her on the 27th July 2015 that they would do so. The Respondent should have applied these procedures after the deadline of 11th August 2015 had expired. The Respondent also failed to follow-up on the Report from the Social Welfare GP in June 2016, clearing the Complainant to return to work. That report should have been followed-up on by the Respondent. The Complainant failed, refused and neglected to engage or co-operate with her employer in dealing with the investigation process into the very serious allegation made against her.   The respondent received no correspondence from any solicitor’s firm or any representative on the behalf of the Complainant in relation to addressing the allegations made. However, the Respondent failed to fully apply its grievance procedures in relation to this matter. The Complainant did not frustrate her contract of employment. The Complainant was dismissed from her employment by the 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.

Based on the evidence presented by both parties, I find that the complaint is well-founded. The Complainant was unfairly dismissed by the Respondent. The Respondent failed to apply the disciplinary procedures against the Complainant for failing to abide by its Absence Management Policy, despite advising her on the 27th July 2015 that they would do so. The Respondent should have applied these procedures after the deadline of 11th August 2015 had expired. The Respondent also failed to follow-up on the Report from the Social Welfare GP in June 2016, clearing the Complainant to return to work. That report should have been followed-up on by the Respondent. However, the Complainant did contribute to her dismissal by failing to abide by the respondent’s Absence Management Policy. The Complainant also failed to actively seek work in order to mitigate her losses. Based on the evidence presented at the hearing and taking all the circumstances of this case in account, I recommend that the Respondent pay to the Complainant €6,500 in compensation for being unfairly dismissed from her employment. This sum should be paid within six weeks of the date of this recommendation.   Dated: 10.01.2018 Workplace Relations Commission Adjudication Officer: John Walsh