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-00013233-001

22/08/2017

The Complainant commenced employment with the Respondent in August 2006. She was dismissed from her employment with the Respondent by letter dated 16/02/2017, the effective date of dismissal as per said letter was 15/02/2017. On her complaint form to the WRC the Complainant has entered the date of dismissal as being 01/03/2017, this is also the date entered by her employer, the Respondent, on her P.45.

A preliminary issue was raised by the representative of the Respondent that the claim is out of time. I will address this issue prior to summarising the cases presented by both the Complainant and the Respondent in relation to the actual dismissal.

Section 1 (Definitions) of the Unfair Dismissals Act of 1977 reads as follows:

“date of dismissal” means

a)      Where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

b)      Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

     (l) the earliest date that would be in compliance with the provisions of the contract of

           Employment

     (ll) the earliest date that would be in compliance with the provisions of the Minimum

           Notice and Terms of Employment Act, 1973.

As per the Minimum Notice legislation the Complainant has a little over ten years’ service and would have had an entitlement to 6 weeks’ notice. From the date of the letter i.e. 16/02/2017 this would have expired on 29th March 2017. The claim is well within time and my decision on this point is that, as an Adjudication Officer in the Workplace Relations Commission, I do have jurisdiction to hear the complaint under Section 8 of the Unfair Dismissals Act, 1977.

The Complainant was dismissed by the Respondent on 15th February following an eight-month continuous absence from work. The Complainant was employed by the Respondent as a Sore Anchor (supervisor) based at the Drogheda Store under a Contract of Employment dated 1st August 2006.        

1.       Throughout the period of absence, the Complainant claims that she was furnishing sick certificates to the Respondent, she was sending these to the HR section and also mailing them to the Head Office. She was unable to furnish them to her store manager, as per normal procedure due to the fact that her store manager was absent on sick leave for some considerable time.

2.       The Complainant made attempts to contact her Sales Operations Manager (SOM) who she alleges did not answer her calls or just hung the phone from her.

3.       The Complainant’s home store had been closed for modernisation for some seven months and staff from this store were temporarily transferred to other stores within a reasonable distance from the home store.

4.       The Complainant was on sick leave for a considerable period and was requested to attend a medical examination. The Occupational Health Specialist deemed her to be fit for work bit her General Practitioner remained of the opinion that she was still unfit for work.

5.       The Complainant called her SOM to inform him that she was not fit for work as per her GP’s opinion and also informed him that she had sent letters to the Employee Relations Manager.

6.       The Complainant received her P45 in May 2017 and her “home store” reopened in July 2017.

1.       The Complainant failed to attend work on 1st June 2016 and did not communicate with the Respondent at all.

2.       After a two-week absence from work the Respondent wrote to the Complainant seeking an explanation for her unexplained absence from work. The Complainant failed to make contact as requested.

3.       On 25th June 2016, the Respondent again wrote to the Complainant outlining that in line with company procedure the Complainant was required to submit medical certificates on a regular basis to explain her absence. This letter requested the Complainant to contact her line manager on or before 1st July 2016 to discuss her ongoing absence and further outlined that should she fail to do so the Respondent would be left with no alternative but to presume that she had abandoned her employment and proceed to terminate the contract of employment.

4.       Again, the Complainant failed to contact her line manager.

5.       The Respondent was first made aware of the Complainant’s work related incident [which allegedly occurred on 31st May 2016] by letter dated 27 June from her solicitor.

6.       The Respondent wrote again to the Complainant on 7th July 2016 outlining that there had been no direct communication from her in a number of weeks. At this stage the Complainant had not been in contact for over five weeks.

7.       On 11th July 2016, the Complainant did make contact with her line manager to discuss the situation, she then confirmed by email that she had submitted medical certificates since 8th June 2016.

8.       The Complainant remained out of work for the months of July, August, September, October and November 2016.

9.       On 30th November 2016, a letter was sent to the Complainant inviting her to attend a medical examination. The Complainant attended this medical examination and in the opinion of the Occupational Health Specialist was fully fit to return to work.

10.   On 9th December 2016, the Respondent sent an email to the Complainant inviting her to make contact to arrange a meeting regarding her return to work.

11.   By email dated 15th December the Complainant informed the Respondent that she was not fit for work.

12.   On 19th December, the Respondent wrote to the Complainant seeking details of her General Practitioner for the Respondent’s Occupational Health Adviser to make contact and consult with the GP regarding the Complainant’s return to work. There was no contact from the Complainant.

13.   On the 5th January 2017, the Complainant was invited to attend a meeting on 12th January 2017. Again, the Complainant failed to attend and made no contact with the Respondent.

14.   The Respondent wrote to the Complainant on 18th January outlining that notwithstanding that the Complainant had been submitting medical certificates, no contact had been made with the Respondent since she had been deemed for to return to work. This letter went onto state that failure to respond to the letter would leave the Respondent with no alternative but to assume that the Complainant had abandoned her employment.

15.   The Respondent wrote again to the Complainant on 30th January 2017 outlining that the Complainant was in breach of her contract of employment and outlining that the Complainant had had also failed to engage with the Respondent and respond to their letters. This letter requested the Complainant to contact her line manager on or before 7th February 2017 to discuss her ongoing unexplained absence. This letter outlined that if no response was received the Complainant’s contract of employment would be terminated on 8th February 2017.

16.   By undated letter received on 7th February 2017 the Complainant outlined that she did not own a mobile phone and that she would be happy to return to work whenever her GP thought it appropriate.

17.   The Respondent wrote to the Complainant on 16th February 2017 outlining the history of her absence and attempts made to contact her and how she had repeatedly failed to respond to the Respondent’s communications. This letter also informed the Complainant had been terminated effectively on 15th February 2017.

Further Submissions:

1.       It is submitted that it is well established that an employer is not under an obligation to keep a position open indefinitely for an employee who is absent by virtue of illness.

2.       It is submitted that regularity of attendance is a fundamental employee responsibility – Flood v Bus Atha Cliath (UD91/1993).

3.       It is submitted that the Respondent had no option but to dismiss the Complainant in circumstances where she repeatedly and consciously failed to engage with her employer throughout her 8-month absence.

4.       The Respondent further submits that it is not for the adjudicating body to substitute its view for that of the employer. The task of the WRC is not to consider what sanction imposed lay within the range of reasonable responses available to the Respondent. As set out by the Employment Appeals Tribunal in McGee v Beaumount Hospital (UD 136/1984).

I have considered the written submission from the Respondent and the verbal submission from the Complainant.

I noted at the hearing of this case that the Complainant remains unfit for work and is in receipt of social welfare benefits.

It was also noted that the Complainant had requested a leave of absence for a period of one year prior to her alleged accident.

I note that Clause 8.2 addresses the absence notification required by the Respondent in all cases of employee absenteeism.

Clause 8.4 gives the company the right to request employees to attend a doctor or consultant nominated by the company and at the company’s expense.

At the time of dismissal the Complainant had been absent from work for a period of just over 8 months. Whilst this period would be considered lengthy it is not, in my opinion, excessive. Many employees have returned to work after absences of this duration.

The Respondent’s representative has quite clearly pointed out that the job of the WRC adjudication service is not to substitute its views for that of the Respondent. I must consider the question of reasonableness not only displayed by the Respondent but also that of the Complainant.

Efforts made by the Respondent to establish when the Complainant may be in a position to return to work are very much in line with their own policies on this subject and do not materially differ from the policies adopted by most other companies. I would however point out that there appears to be an unexplained gap in the process i.e. July, August, September, October and November. By the end of November when the Respondent wrote to the Complainant in relation to a medical examination the Complainant had been absent from work for 6 months. This could have possibly been managed in a timelier manner.

The Complainant repeatedly failed to engage with her employer, the Respondent, in relation to her return to work and it is easily understood why the Respondent would conclude that the Complainant had no intention of returning to work and that the Complainant was intentionally attempting to frustrate the Respondent’s efforts to facilitate a return to work.

When the Complainant’s employment was terminated by letter dated 16th February 2017 she was also informed of her right to appeal this decision, she chose not to exercise this right.

I find it impossible to find any merit in the manner in which the Complainant behaved during this entire period

I find it impossible to find any merit in the way the Complainant behaved during this entire period and find it impossible to disagree with the Respondent’s assertion that “the Complainant had no intention of returning to work and that the Complainant was intentionally attempting to frustrate the Respondent’s efforts to facilitate a return to work”

For the reasons outlined above the complaint fails.

Unfair Dismissal; Long term absenteeism.