Complainant

Respondent

Anonymised Parties

An employee

A Resource Centre

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-00011608-001

29/05/2017

The Complainant commenced employment with the Respondent on 09/01/2008. After an absence of approximately 20 months the Complainant was dismissed from employment by reason of frustration of contract. In her WRC Complaint Form the Complainant alleges that she was the victim of ongoing bullying and harassment from one of the Board members and the Respondent failed to do anything about it after she had reported same.

It is noted that the Complainant’s representative submitted a supplementary submission and statements from other individuals – I have not read and/or considered these, to do so would entail hearing the case over again. All parties are asked to present their entire case at the hearing.

In her role with the Respondent the Complainant was responsible for the day to day operation of the resource centre and the day to day co-ordination of the programmes, staff management and the financial management of the centre. She reported directly to the Chairperson of the Board, which comprised of some voluntary members and some members from funding bodies.

On 9th April 2015, the Complainant went on sick leave, her medical certificate stated she was suffering from a chest infection. Prior to this period of sick leave the Complainant visited the Chairperson of the Board and spoke to her in confidence regarding a personal matter which she claimed was the cause of her anxiety and proposed sick absence from work.

On 25th May the Respondent wrote to the Complainant in relation to the number of sick days taken to date in 2015. The note was to advise her that she would be moving to half pay by a certain date should she not be back in work by this stage. The Respondent received no reply to this letter which had been sent by Registered Post.

On 17th June, the company again wrote to the Complainant advising her that they had not received any social welfare benefits from her and pointed out that they had not received any medical certificates from her since 8TH June.

On 15th August 2015, the company wrote to the Complainant who had now been absent for some 5 months to request that she attend an occupational medical assessment to ascertain her fitness or otherwise to resume her duties. An appointment was made for 10th October 2015 (some two months after the letter).

The medical report dated 15th October 2015 recommended a return to work on a part-time basis for two weeks and then full-time. It is noted in this report that a meeting with the Chairperson should take place prior to a return to work.

The Chairperson wrote to the Complainant on 29th October 2015 informing the Complainant that she would be happy to meet the Complainant to discuss any return to work issues and then the letter refers to other issues for discussion:

·        IT Tutor & IT Room

·        Report from Framework dated 05/08/2018 raising several concerns about the running of the centre.

·        Signing in/out book for insurance purposes.

·        Filing system in your office was in disarray.

·        Number of uncertified sick days taken in 2015 and policy on same.

The Complainant did not communicate with her employer post receipt of this report, she did not respond to the request from the Chairperson to meet she simply continued to send medical certificates from her GP.

The Complainant replied on 18th November addressing each point contained in the Chairperson’s letter and suggested a meeting on either 30th November or 1st December 2015.

A meeting took place on 7th December 2015, present at this meeting were the Chairperson and Secretary of the Respondent Board, the Complainant and her union representative. At the meeting discussions focused on the following:

·        Complainant’s failure to furnish medical certificates

·        Why the Complainant had failed to return to work when she had been passed fit to do so.

·        Unsubstantiated allegations of bullying raised for the first time.

·        Process contained in the staff handbook on this subject.

·        Issues arising that had come to light since the Complainant commenced her absence from work.

The Respondent received a letter dated 7th December 2015 from the Complainant’s union official – in this letter the points raised included:

·        Return to work certificate and returning to work.

·        Matters of Supervision, Support and Appraisals – to be dealt with on return.

·        Issue with a Board member – this matter has not been dealt with.

·        IT Co-ordinator – no discussion, possibility of litigation.

·        Work Plan – three attempts to meet with appropriate person. The Complainant went on sick leave in May 2015 prior to having the plan completed.

·        Appointment of Counsellor – the Complainant went on sick leave.

·        Men’s Group funding – this was incomplete when the Complainant went on sick leave.

·        Filing system – system worked for the Complainant, willing to be trained in how to do it differently.

·        10 uncertified sick days – thought she had previously submitted sick cert but will check with GP.

·        Train Tickets – Complainant claims she had never seen or received any train tickets in relation to this.

At the conclusion of the meeting the Chairperson indicated that there were” other matters”. These should be put in writing and they can be dealt with on a different day.

On 10th December 2015, a letter was sent to the Complainant requesting that she furnish a medical certificate from her doctor confirming that she is fully fit to return to work. On receipt of such a letter the Respondent will issue a list of matters that require investigation. This letter also advises the Complainant that she should put in writing any problem she may have with a member of the board.

On 11th December 2015, the Complainant’s union official wrote to the Respondent informing that in referring to “other unresolved issues” the Complainant had had a relapse in her fatigue condition and saying that while her union representative had clearly stated at the union meeting that outstanding matters could be dealt with on a different day he was now seeking that these issues be detailed in full in writing.

On 17th December 2015, the Respondent wrote to both the Complainant and her union representative in response to their letter dated 11th December regarding outstanding issues and their proposal for an independent investigation.

There was no reply to the letter of 17th December, on 19th January 2017 the Respondent wrote again to the Complainant pointing out that she continued to be absent from work and that no medical certificate had been received since 1st December last. This letter asked why she had been absent from work and was it her intention to resign from her position. On 21st January, the Complainant replied saying that she had no intention of resigning and that she would in touch in relation to other matters in due course.

By letter dated 27th January 2016 the Complainant’s union representative informed the Respondent that the Complainant would be willing to engage in an investigation of the points raised in correspondence of 17th December 2015. The union official then went onto ask who would be carrying out the investigation and to provide a number of possible dates. On 3rd March 2016, a second letter requesting the answers to questions raised in the letter of 27th January 2016. This letter also states that the Complainant is anxious that this matter be dealt with as soon as possible.

On 15th March 2016, the Respondent acknowledged the letter and stated that they were happy to engage however as the Complainant remains on certified sick leave we cannot naturally engage in any process at this point so once she is certified as fit for work or at a minimum certified as being fit to go through the engage we will then commence the necessary process. The Respondent ended by saying that it would be contrary to all good practice for us to engage in meetings on serious matters when the Complainant is certified sick.

By letter dated 21st March the Complainant’s trade union representative wrote to the Respondent asking for the name of the nominated investigator and to offer a number of dates when the investigation might take place.

On 30th March the Respondent wrote to the Complainant’s union rep stating “for absolute clarity it was you as her representative who proposed that despite being on sick leave the Complainant would be willing to participate in an investigation process and not us as her employer as you have now stated on a number of occasions. Furthermore, we are really shocked at your proposing and continuing to seek this”.

On 5th April 2016, the Complainant’s union representative replied to the Respondent and pointed out that it was the respondent who had initially brought up the subject of a certificate of fitness to participate in an investigation and not him and quoted letter of 17th December, page 4, paragraph at the top of the page.

By letter dated 9th May 2016 the Respondent advises of the need for another medical assessment in an endeavour to establish when the Complainant may be in a position to return to work, “We will then ideally subject to the findings of this medical need to sit and discuss with you what arises next”.

By letter dated 10th May the Complainant’s union representative wrote to the Respondent referring to his letter dated 5th April and enclosing a medical certificate that confirms the Complainant is fit to participate in a workplace investigation.

By letter dated 17th May the Respondent wrote to the Complainant advising that they were reluctant with the idea that we engage in detailed investigations and matters with you until both parties are satisfied as to your absolute fitness to commence and conclude such a process. This letter then requests confirmation from the Complainant that she is willing to attend a medical assessment. The Complainant replies the next day to inform the Respondent that she is willing to attend such an assessment.

By letter dated 10th June 2016 the Respondent advises the Complainant that a medical assessment has been arranged for the 21st June at 10.30am.

By letter dated 28/06/2018 the Respondent writes to the Complainant cancelling the medical appointment and states this is outside their control and we will be in touch with you in due course to arrange an alternative appointment.

On 5th July 2016, the Respondent sends new arrangements for the medical assessment - Tuesday 12th July 2016 at 3.10pm.

In the report from the Occupational Health Specialist dated 18th July 2016 there is confirmation that she is fit to participate in a workplace investigation and that the Respondent should continue to accept medical certificates from the Complainant’s GP until the investigation has been concluded.

By letter dated 29th July 2016 the Respondent advises the Complainant that it has been noted that she is fit to meet and discuss matters arising with your employer…..” Prior to forwarding you details of matters arising in writing for you to review in advance of a meeting we will convene to discuss these, I would like to confirm if you are in agreement with our occupational health specialist and feel comfortable now at this stage to meet on these matters”.

By letter dated 13th September 2016 the Respondent wrote to the Complainant as a matter of urgency, to reply to the following three questions:

1.      Are you fit to return?

2.      If not, are you fit to engage but not return?

3.      If not, when if at all does you GP perceive you will be fit?

By letter dated 10th November 2016 the Respondent again wrote to the Complainant requesting answers to the questions raised in the letter dated 13th September 2016. This letter also points out the Complainant’s failure to respond to the letter of 13th September and goes onto say that “Should you fail to engage and or provide the relevant necessary certification we will deem this failure to respond yet again to the Board to constitute your confirming to us the termination of your employment with xxxx xxxx by virtue of the frustration of your contract of employment with us.

We will then proceed to issue your P45 and formally consider your employment to be at an end.

I would ask that you treat this letter with urgency and ensure you respond promptly”.

The Complainant replied to this letter on 17th November 2016 the Complainant replied as follows:

“Following on from your letter dated 10th November 2016, I am not willing to engage in any investigation due to the harassment and bullying I suffered”.

By letter dated 24th November 2016 the Respondent informs the Complainant of her dismissal from employment:

“We have now reached a stage of frustration of contract with you whereby you have made yourself unavailable to reasonably discharge your contractual requirements for us, principally that of being available and fit to undertake your duties.

I therefore wish to advise you that this letter serves as formal notice from the Board of the termination of your employment by reason of frustration of contract on your part”.

The Complainant received four weeks’ pay in lieu of notice and all outstanding holiday entitlement.

Conclusion.

The Respondent’s representative has concluded by making the following points (this has been summarised as many of the points have already been mentioned).

·        Two separate occupational health reports found that the Complainant was fit and able to resume her duties yet despite this she failed to report for work or communicate with the company as to why she was not returning to work.

·        On multiple occasions she ignored and failed to respond to correspondence from the company during her absence.

·        The alleged issue of bullying by a board member was raised for the very first time at the meeting at which she and her advisor were present in December 2015, the Chairperson of the Board and the Board member present on the day at the meeting are clear in this regard and despite being advised on how to proceed with raising these matters in a normal forum she did not do so at any stage in the 11 months following this. The Staff Handbook has a clear policy on this.

·        The Complainant stopped communicating with the Respondent in July 2016.

·        The Complainant provided no medical certification from 15th August 2016 to explain her absence from work.

·        The Complainant states that she was bullied by member(s) OF THE Board and she reported this but it was not acted on. The Respondent completely refutes this and is at odds with what she stated at the meeting with the company in December 2015 where she was accompanied by a highly knowledgeable representative……. This did not arise, she did not raise this with board member in her support and supervision discussions, in her appraisals, in her dialogue with Board Members or Chairperson(s) or at any stage during her employment.

·        The Complainant was paid in line with the Respondent’s sick pay scheme.

·        The Complainant states that she had no support or supervision for four years see attached at Appendix 40.

·        The Complainant states that at the meeting on 7th December 2015 the Chairperson and Board Secretary were very aggressive towards her and her union representative. The company utterly refutes this as does the Chairperson. At no stage either verbally or in anycorrespondence following the meeting did the trade union suggest to the company that they found this to be the case.

·        The Complainant did not as she alleges in her complaint form continue to send in medical cert in a timely fashion.

·        Ms Holland replied to the company on 17th November 2016, this was the first response since July 2016, informing the company that she did not want to participate in any investigation and gave no reasons for adopting this position.

·        The Complainant in effect voluntarily ended her contract by virtue of frustration of contract.

·        The Complainant was paid all holiday pay due from January to November2016 and as a good will gesture four weeks’ pay in lieu of notice and was issued with a P45 on 30th November 2016 as it was clear to the Company at this stage that she had no intention of returning.

The Complainant commenced employment with the Respondent organisation in January 2009.

The Complainant was very happy in her job and secured funding for all types of projects and managed the ongoing projects. As manager of these projects she received no personal supervision. On the contrary, she endured bullying from members of the Board. This bullying was reported but not acted on by the Board.

The Complainant’s health deteriorated due to this bullying and this resulted in some time off work. Save for one occasion she was not paid while out sick. She furnished medical certificates on a regular basis.

She was afraid to return to work as the person who was bullying her was still a Board member and she felt that her employer was not taking her complaint seriously and had failed to deal with the fact that she had no supervision for over four years.

A meeting with her employer was arranged and this took place on 02/12/2015.The Chairperson and Secretary to the Board were present and they appeared to be very aggressive toward the Complainant who was accompanied at the meeting by her trade union representative. The subject of an investigation was introduced for the first time. The Respondent mentioned that they were proposing to bring in an independent investigator to deal with the matter.

The Respondent requested a letter from the Complainant’s doctor confirming that it was alright for the matter of the investigation to go ahead while the Complainant was still on sick leave. The Complainant’s doctor furnished such a certificate in May 2016 but the Complainant didn’t hear anything further.

The Complainant attended at the Company doctor and she confirmed that she was fit to return to work.

On 24th November 2016 the Complainant was dismissed from employment without the matter of the bullying being addressed.

Incidents of Bullying.

The Complainant’s written submission contained an extensive summary of incidents that the Complainant felt were incidents of bullying. I will refer to the alleged perpetrator as Mr ABC for the purpose of anonymity. This summary contained the following:

·        Bullying commenced in 2014 – Mr ABC would make false comments in an aggressive manner in front of staff and service users in relation to the Complainant’s pay and conditions.

·        On at least two occasions Mr ABC entered the Resource Centre unaware that the Complainant was present. He made comments to the administrator and another staff member in relation to the Complainants employment conditions, stating that she was out using her car for work and it would cost the project for mileage allowance.

·        Mr ABC had borrowed a shovel from the Centre and when the Complainant asked him to return the shovel he returned to the Centre with the shovel, shouted aggressively and threw the shovel at the Complainant narrowly missing her. This incident terrified the Complainant and was witnessed by several other people. The Complainant reported the incident to the Chairperson who assured the Complainant that she would deal with the matter, three months passed and nothing was addressed. Mr ABC’s behaviour towards the Complainant continued and it was affecting her work.

·        At a Board meeting in November 2014 the Complainant raised the issues about Mr ABC. One Board member stated “this is nothing to do with me, it’s between you and Mr ABC”, he then started to laugh. After some discussion at said Board meeting, Mr ABC stated “she is right, Ihave done all of the things she has said. I don’t like her and I don’t trust her”. He then left the meeting (this is all recorded in the minutes of the Board meeting).

·        Mr ABC’s admission was confirmation of the bullying the Complainant had received. The Complainant was re-assured by the chairperson that the behaviour of Mr ABC was not acceptable. Mr ABC was apparently informed that he needed to change or leave the Board.

·        Given the conditions that the Complainant was working under she persevered working for as long as she could, lasting until May 2015. It was at this point that her health gave in. She was declared unfit for work by her GP.

·        The Complainant’s wages were stopped in June 2015.

·        The Complainant provided medical certificates monthly until it was requested by the Respondent that she submit medical certificates on a weekly basis, she complied with this request.

·        The Complainant was asked to attend a company doctor in August 2015. The company doctor suggested that the Board Chairperson should meet with the Complainant prior to her returning to work and that she should return to work on a part-time basis for two weeks and then commence full-time working.

·        The suggested meeting took place in December 2015, some four months later.

·        In December 2015 the Complainant accompanied by her trade union official met with the Board Chairperson and Board Secretary. The two Board members were very aggressive and the Chairperson was asked, by the trade union representative, to lower her voice as she was so loud and aggressive.

·        It was at this meeting that the Complainant was initially informed that they were launching an investigation into the matter and that they would be in touch in this regard.

·        In March 2016, some three months later, the Complainant received a letter asking her to submit a letter from her doctor stating that she was fit enough to participate in an investigation, this letter was supplied.

·        In August 2016, the Complainant’s trade union representative wrote to the Respondent seeking clarity about the investigation.

·        The Complainant then received a letter asking her to attend the company doctor to ascertain if the Complainant was fit to participate in an investigation.

·        The company doctor was shocked at the inaction over the previous year.

·        The Complainant received a letter in November 2016 stating that they were terminating her contract.

This experience has been one of the most difficult experienced by the Complainant. She was threatened, verbally abused and was on the receiving end of violent behaviour from one Board member. The Respondent failed to provide the Complainant with a safe workplace.

The Complainant was informed by the Board in December 2015 that they were holding an investigation – by November 2016 no investigation had been conducted.

The Complainant was bullied by her employer.

The Complainant is a professional Community Worker. The values and principles of community work are equality, inclusion, empowerment and respect. The Respondent claims to uphold these values and principles. During this process the Complainant has been disempowered and treated with the utmost disrespect.

Recent Irish Case Law.

Detail of the following cases were submitted by the representative of the Complainant.

Michael Lyons v Longford and Westmeath Education and Training Board [2016] No 708 JR

In this case the High Court emphasised that individuals are entitled to legal representation and the right to cross examination during a workplace investigation where the complaint could lead to a dismissal or impinge on an individual’s good name.

The right to cross-examine one’s accuser by counsel was also discussed in another recent High Court case, EE V Child and Family Agency [2016] IEHC 777.The central issue in EE was whether the right to fair procedures in a child abuse investigation included the right to cross-examine a complainant of full age who is available but unwilling to attend. The High Court noted that the right to cross-examine is a fundamental one, particularly “where there are matters at stake that strike at the heart of an applicant’s family relationships”.

The letter dated 24th November 2016 from the Respondent Chairperson to the Complainant clearly states the following:

“I therefore wish to advise you that this letter serves as formal notice from the Board of the termination of your employment by reason of frustration of contract on your part”.

Irish judges have only rarely considered the basic principles of the doctrine of frustration. In Re theTrusts of the Will of Simon Sheil, Kenny J in the Supreme Court outlined three possible bases upon which the doctrine of frustration might be said to rest:

        I.           ‘Where there has been such a change in the circumstances that the performance of the contract has become unlawful, or

      II.           Where events make it physically impossible for the contract to be performed, or

    III.           Where, although performance is physically possible there has been such a change as to destroy the whole object of the contract to make performance no longer viable in commercial terms’.

It is not always easy to determine whether there has been such a change in circumstances as to frustrate the contract.

The Case.

A meeting took place on 02/12/2015, present at this meeting were the Respondent’s Chairperson and Board Secretary with the Complainant and her trade union representative. The Complainant states via her complaint form that this was the first mention of an investigation. It was indicated that an independent investigator would be appointed to deal with this matter. The Complainant then states, via her complaint form that “The company requested a letter from my doctor confirming that it was alright for me to have this matter investigated while I was out on sick leave. My doctor furnished such a letter in May 2016”. (The meeting in question took place on 7th December 2015).

Following this meeting, on the same date, the Complainant’s trade union representative wrote to the Respondent and summarised, what appears to be, the items that had been discussed at the meeting.

I note that in relation to the alleged bullying behaviour towards the Complainant from a Board member, the trade union official has stated:

“The Complainant’s issue with a member of the Board. While the Board may have considered this matter had already been dealt with, the Complainant does not have the same opinion. The Complainant believes she was isolated by the Board member and that she had suffered unfair treatment for a period of approximately two years. The Union Official, suggested a mediationprocess be established to deal with this matter”.

In her reply to this letter the Chairperson of the Board advises that the Complainant ‘should put theissue in writing’.

There are two points I want to make as the Adjudication Officer in this case:

1.      The Complainant does not appear to have made a written complaint.

2.      The Complainant alleges that she was asked to provide a medical certificate that would certify her fitness to participate in an investigation (meeting of 7th December 2015) she complied with this request 6 months later.

The letter dated 17th December 2015 from the Respondent Chairperson to the Complainant’s trade union official is somewhat confusing.

Paragraph 1 on page 1 reads:

“The Board had taken the decision, correctly, in my view that it would not deal or raise issues with the Complainant whilst she was out on sick leave and would wait for her return to work”.

Paragraph at bottom of page 3 and top of page 4 – this reads:

“I want to repeat and emphasise that the Board considers that these are matters that should be independently investigated. I am therefore not prepared to engage with you in relation to them until such an independent investigation has been carried out. This investigation will be initiated when your client resumes her employment. If the Complainant confirms to us that she is willing to engage in such an investigation, whilst out on sick leave and has no objection to it, then the Board would proceed to appoint an independent investigator”.

The above-mentioned letter was replied to on 27th January 2016 and confirmed the Complainant’s willingness to engage in an investigation.

Another letter to the Respondent Chairperson from the trade union official and dated 03rd March 2016 requested details of who would be conducting the investigation and asked for some dates when this might take place. It also pointed out that the Complainant was anxious that the matter be dealt with as soon as possible.

On 15th March 2016, the Respondent Chairperson replied stating that they were pleased that the Complainant was happy to engage however as she remains on certified sick leave we cannot naturally engage in any process at this point so once she is certified either fit to return or at a minimum fit to engage we will then commence the necessary process.

The Complainant’s union official replied to this letter on 21st March 2016 and reminded the Respondent Chairperson of what she had said in her letter of 17th December 2015:

“If the Complainant confirms to us that she is willing to engage in such an investigation, whilst out on sick leave and has no objection to it, then the Board would proceed to appoint an independent investigator”.

There had been no mention of a medical certificate prior to the Chairperson’s letter of 15th March 2016.

On 30th March 2016, the Respondent Chairperson wrote to the trade union official:

“Thank you for your letter dated March 21st regarding the Complainant.

For absolute clarity it was you as her representative who proposed that despite being on sick leave the Complainant would be willing to participate in an investigation process and not us as her employer as you have stated on a number of occasions. Furthermore, we are really shocked at your proposing and continuing to seek this.

To be absolutely clear under no circumstances would we consider it professional, reasonable or appropriate to commence an investigation process with an individual who is certified as suffering from stress and unfit to be in work for quite extended period of time now.

We will naturally in line with the company disciplinary procedures and best practice codes of conduct deal with all matters arising in an appropriate manner once the Complainant has been medically cleared to engage fully in such a process.

Should you have any further queries please do not hesitate to contact us,”

There is no evidence contained within the Respondent’s submission that would suggest that it was the Complainant’s trade union representative who initially proposed that an investigation should proceed when the complainant confirmed her willingness to commence when she remained on sick leave. This was proposed by the Respondent.

On 9th May 2016 the respondent, by letter, invited the Complainant to attend for another assessment from an Occupational Health Specialist and asked the Complainant for confirmation of her willingness to attend such an assessment.

On 10th May 2016 the Complainant’s trade union representative send a medical certificate confirming the Complainant’s fitness to take part in an investigation carried out in her workplace.

By letter dated 17th May 2016 the Respondent Chairperson wrote:

“For clarity if there was any confusion in our last correspondence with you, we believe that your wellbeing and health and safety are naturally paramount in this situation and we feel uncomfortable with the idea that we engage in detailed investigations and matters with you until both parties are satisfied as to your absolute fitness to commence and conclude such a process.

For this independent medical clarity, we are therefore seeking that you attend for an occupational health medical which as you will appreciate is carried out by a highly-qualified practitioner who fully understands matters relating to workplace fitness, as distinct from a general practitioner who takes as per their qualifications a more general approach to health and fitness.

In addition, we wish to alleviate any ongoing concerns we have regarding differing opinions from medical advisers.

As you will know after your last occupational medical the doctor confirmed you fit to return to work yet your GP continued and still continues some 5 months later to certify you as unfit to return to work.

We would now like to have you attend for a further occupational assessment to endeavour to advise us when or if it is felt you will be fit to resume your duties, and or should this not be feasible to comment on your fitness to engage in the proposed investigation.

I would be grateful if you could confirm your willingness to attend for a medical and we can then go about scheduling it”.

The Complainant replied the next day confirming that she would attend.

The Respondent Chairperson wrote to the Complainant on 10th June to inform her that the medical assessment had been arranged for 21st June 2016.

The medical assessment eventually took place on 12th July 2016, the medical report issued on 18th July and this stated:

“In my opinion the Complainant is medically fit for work, however, it may not be appropriate for her to do so pending the outcome of the investigation and the employer may continue to accept medical certificates from the GP until the investigation is concluded”.

On 29th July 2016, the Respondent Chairperson wrote to the Complainant confirming that she had received the medical report, however this letter states:

“However, I have also post the date of this report received a further medical certificate from your GP dated 18/07/16 to 15/08/16.

Prior to forwarding you details of matters arising in writing for you to review in advance of a meeting we will convene to discuss these, I would like you to confirm if you are in agreement with our occupational health specialist and feel comfortable now at this stage to meet on these matters.

I look forward to hearing from you and will forward you the details of the issues once I hear from you.

Should you have any further queries please do not hesitate to contact me”.

By letter dated 13th September 2016 the Respondent Chairperson wrote to the Complainant informing her that she had not received a reply to her letter in July. The latter part of this letter raises three questions to be answered by the Complainant:

1.      Are you fit to return?

2.      If not are you fit to engage but not return?

3.      If not when if at all does your GP perceive you will be fit?

The Complainant failed to reply to this letter. On 10th November 2016, the Respondent Chairperson once again wrote to the Complainant and raised the three questions again. This letter goes onto state:

“I am now requesting that you formally respond to me on the queries we previously raised and raise again here today within 5 working days of receipt of this letter.

Should you fail to engage and or provide the relevant necessary certification we will deem this failure to respond yet again to the Board to constitute your confirming to us the termination of your employment by virtue of the frustration of your contract of employment with us.

We will then proceed to issue your P45 and formally consider your employment to be at an end.

I would ask that you treat this letter with urgency and ensure you respond promptly”.

On 17th September 2016, the Complainant responded to this letter:

“Following on from your letter dated the 10th November 2016, I am not willing to engage in any investigation with ………… due to the harassment and bullying I have suffered”.

On 24th November 2016 the Respondent Chairperson wrote to the Complainant, this letter informs the Complainant that:

“We have now reached a stage of frustration of contract with you whereby you have made yourself unavailable to reasonably discharge your contractual requirements for us, principally that of being available and fit to undertake your duties.

I therefore wish to advise you that this letter serves as formal notice from the Board of termination of your employment by reason of frustration of contract on your part”.

In coming to a decision in this case I have considered all aspects of the case and read the submissions through very thoroughly. I have given careful consideration to what has been said by both parties at hearing.

In Bunyan v United Dominions Trust the Irish EAT endorsed the following view:

‘” the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”

In this instant case, it is not my job to decide the question whether or not, on the evidence before me, the employee should be dismissed. The decision has been taken and my function is to test such decision against what I consider the reasonable employer would have done and/or concluded.

The first mention of an investigation in this case was at the meeting on 7th December 2015, the final reference to such an investigation was in November 2016, some 11 months later. This, in my opinion, is not the way a reasonable employer would conduct its business. The employee is not faultless on this subject either. Both Respondent and Complainant could have acted in a more expeditious manner to ensure a workplace investigation took place.

The Respondent’s letter dated 17th December 2015 to the Complainant’s trade union official is at best, misleading, and is not what one would expect from a reasonable employer. What were the Respondent’s objectives in sending out this letter?

After the second medical examination, the Complainant was deemed fit for work with a suggestion that she should not return to work until the investigation has been concluded. The Occupational Health Adviser also states “the employer may continue to accept medical certificates from the GP until the investigation is concluded “This report was issued on 18th July 2016. The content of the Respondent’s letter dated 13th September 2016 has me somewhat confused in relation to medical certificates, all the Complainant was doing was complying with what the Respondent’s Occupational Health Adviser had suggested to her i.e. asked that the employer continue to accept medical certificates until the completion of the investigation.

I noted at the hearing that the Complainant commenced employment with an institution of the State in early December 2016. The Complainant received one month’s pay in lieu of notice from the Respondent at the end of November 2016, therefore there is no loss of earnings between the two employments. In her new employment her salary is more than that paid in her former employment.

I have come to the conclusion that at a given point in time the Respondent decided that they were not going to let the Complainant return to her position and this would help explain the barriers and time lags throughout the entire process.

Equally so, I have come to the conclusion that at a point in time, the Complainant, made the decision that she was never going back to her position with the Respondent. This could have taken place at some stage during the recruitment process with her new employer, this could have taken several weeks if not months when you consider all aspects of the State’s recruitment procedures.

I have, for the reasons outlined above, decided that the Complainant was unfairly dismissed.

Under the Unfair Dismissals Act, if an employee has sustained no loss by reason of the dismissal, as for example, by obtaining immediate employment without injuring pension or other rights, he/she will be entitled to compensation of not greater than 4 weeks’ remuneration.

I award the Complainant the sum of €3,000.00, this sum represents four weeks’ remuneration.

Unfair Dismissal, Long term absenteeism.