Complainant

Respondent

Anonymised Parties

A Legal Secretary

A Firm of Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00015249-001

24/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015249-002

24/10/2017

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

CA-00015249-003

24/10/2017

The Complainant was engaged for a short period of time with the Respondent Solicitor’s Firm as a legal secretary. The Complainant had some twenty years of experience in this role. The Complainant had been taken on as a permanent member of staff on the 25th of July 2017. This was subject to the Complainant completing a satisfactory probation period. Several issues arose during the employment and some ten weeks later Complainant was let go on the 5th of October 2017. The Respondent says it let the Complainant go as a result of the number of absentee days she had taken. The Workplace relations Complaint Form is dated the 24th of October 2017.

The Complainant gave evidence on her own behalf. The Complainant indicated that this was a more difficult working place than any she had worked in before. The Complainant was excited to have the job but felt herself to be inadequately trained up in the specific processes applied in this fast-moving work environment. As the Complainant, had come into the position from a temporary arrangement (which had only lasted about two weeks) she did not get the normal induction course as she was considered to already be immersed in the workplace. The evidence suggested that she might have got one half of what was expected.

The Complainant had increased levels of anxiety as her own performance issues came into focus. The Complainant took a number of sick days in consequence. The Complainant’s contact in the HR department was a Ms. COR. The Complainant says she told Ms. COR about a long-standing issue she had in relation to depression. The Complainant believes that her disability was a factor in the termination of her employment.

The Respondent’s case was presented by one of the partners DJ. He outlined that the Complainant was in a pool of Secretaries and that there was intended to be a collegiate atmosphere amongst the 8 members of that pool such that any one of them would assist with any problems which a recruit might have. They look out for each other. The Respondent indicated that the process of recruitment is expensive and the it is intended that a successful candidate will remain with the Employer for the long term and thus a lot of effort was made to ensure new employees would learn the ropes and settle in. There is no system for clocking in and out and it is intended that there would be give and take in this regard. If an employee needs an afternoon off, then the employee would perhaps make up the time by working later on another occasion. The Complainant was taking days off without following the protocol which left her colleagues faced with extra work. The ratio of days off to days worked was too high and within two and a half months of starting, the Complainant was let go.

I have carefully considered the evidence adduced. At the outset, the Complainant withdrew her claim under the Payment of Wages Act. It was noted that the Respondent had conceded a mistake had been made in the assessment of wages payable and the Complainant had been reimbursed in the period of time between issuing the Workplace Relations Complaint Form and the hearing date.

The Complainant claims that she was unfairly dismissed. As the Complainant, had not 52 weeks’ service with the Respondent Employer the Complainant was not entitled to seek relief under the Unfair Dismissal legislation. The Complainant understood that in bringing her complaint under the Industrials Relations Act the Complainant could only get a recommendation and not an enforceable Order.

The Complainant brought an additional claim under the Employment Equality legislation claiming that she was discriminated against because of her disability. In the circumstances, the Complainant is obliged to make out a Prima Facie case before the burden of proof will shift to the Respondent.

The Complainant delivered her evidence in some detail. The Complainant started working with the Respondent on a temporary basis. This commenced on the 3rd of July 2017. The Complainant was placed in a in a pool of legal secretaries all working to the Defence Litigation Department. The Complainant would ultimately be assigned to one Partner.

The Complainant said that the work was difficult. Despite the fact that she had 20 years of experience in the field of legal administration and service this particular office she found to be very demanding. The Complainant agreed with the Respondent partner DJ that the atmosphere amongst the legal secretary pool was good. There was no problem with looking for assistance and explanation during the working day. More senior secretaries expected to help where a new recruit didn’t have the full skillset. Despite this the Complainant was very upset when she was personally rebuked by an outside client when she had erroneously communicated something which she shouldn’t have. The Complainant did give evidence that one of the in-house Solicitors with the Respondent Employer did apologise to her for the letting her become exposed in the way that she had. The Complainant did seek and get further training though this retraining she said was insufficient and she was anxious about making errors or omissions

The Complainant explained that she had a long-standing diagnosis of depression and anxiety. This condition is being treated and the complainant remains under the care of her medical practitioner. The Complainant has been on different medication over the years and as and when the need arose. The Complainant’s condition was not necessarily known to her employer at the commencement of her employer.

By the end of July 2017 the Complainant was obliged to take several days off work. The Complainant notified her employer by way of a voicemail message left at the main reception desk. This is contrary to what is clearly stipulated in the contract of Employment requirements which specifically requires that the Head of the Department or the Head of HR be personally notified of any proposed absence arising through ill-health.

The Complainant was taken aside on the 2nd of August 2017 by DOR (who worked within the HR department) and the Complainant was advised that there was an operative sick leave policy which needed to be adhered to. The Complainant confirmed in evidence that she understood her obligations. The Complainant further stated in evidence that she opened up to COR about her own health condition and she says she explained that she had long standing diagnosis of depression and anxiety which left her occasionally vulnerable and unable to make it to work. The Complainant felt that being honest was the best policy and she understood that her employer would be sympathetic and reasonable in circumstances where the employer was now on notice of her condition.

On Thursday the 14th of September the Complainant went home early complaining of feeling unwell. The Complainant did not contact the Head of Department or HR the next day (a Friday) and once again left a message with the Reception Staff that she would not be in that day. COR contacted the Complainant and indicated that the method of communication was not acceptable and requested sight of an appropriate medical certificate to be produced in line with the Contract of employment.

The Complainant did not return to work the following week and came back on Monday the 25th of September – missing some seven days of work. In the meantime the Complainant did submit a series of medical reports and certs which cited her her inability to attend work to be as a result of an acute chest infection and/or bronchitis. This was therefore not an absence arising out of any other medical condition and so the depression/anxiety disorder did not appear to arise.

COR brought the issue of this prolonged absence to the attention of DJ. In addition to the unexplained absences of late July, the Complainant had been out of work for 9 days in the 9-week period since she had commenced with the employer. A worrying pattern had been established. DJ gave evidence that he had no knowledge that the Complainant had an anxiety or a depressive disorder. It seems COR, if she had absorbed this information in the first place, did not share the knowledge with DJ. In fact, DJ was faced with a considerable period of absence being covered by medical certificates which barely covered the task.

DJ said he assessed the situation and concluded that the number of absences in the nine-week period were just too many and too difficult to sustain going forward. He says he formed the intention to dismiss the Complainant. As the Complainant was in the early stage of her probationary period, DJ believed his decision was permissible.

As it happens, the Complainant herself came forward at about this time and requested of COR that the employer formally dismiss her. The Complainant needed the Employer to do this so that she, the Complainant, would be entitled to Social Welfare. The Complainant wanted to take time out of work to look after her mother.

DJ stated that such a request would not be countenanced in the ordinary course. He did however see the fortuitous dovetailing of two wants – the Complainant wanted to be let go and the Employer wanted to let her go. The Employer had already decided to let the Employee go and so it was that at a meeting on the 5th of October 2017 the employment was prematurely terminated.

I cannot find that the Complainant’s dismissal was unfair. It was clear in the course of the evidence that the Complainant agreed with almost entirely with DJ’s account of what happened. The Complainant agreed that she had actively sought termination in furtherance of her own wish to be at home to care for her parent. She recalled DJ describing the letter of termination as the “golden ticket” since it happened to be exactly what she was looking for. There is no further recommendation I can make in this regard.

In considering the claim under the Employment Equality Acts, I cannot again find in the Complainant’s favour. Whilst I accept that the complainant was suffering with anxiety and depression and that this would be a disability recognised under the Employment Equality Acts, I do not find that the decision to dismiss was in any way related to or predicated on the fact of this disability. The Complainant’s medical status was entirely unknown and unknowable to JD and had no bearing on his decision. Even if COR had known of this medical condition early on in the employment relationship, it was not a factor in the 7-day absence from the workplace which had been the trigger for the decision to terminate the employment. The Complainant has not therefore made a Prima Facie case of discrimination on the grounds of disability as against the Employer.

I make no recommendation under the Industrial Relations Act 1969

The Complaint under the Employment Equality Acts fails.

The complaint brought under the Payment of Wages Act was withdrawn by the Complainant.