Complainant

Respondent

Anonymised Parties

A team leader

A B2B outsourcing services supplier.

Representatives

self

Company manager

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-00014829-001

05/10/2017

The Complainant commenced employment with Company A on 18th May 2009. In December 2012 her employment transferred to Company B and then transferred to the Respondent Company in December 2014.

The Respondent company records show that the Complainant was absent from work on long term illness from the 15th June 2015 and was dismissed from the Respondent company on 30th June 2017 on the basis of capacity to fulfil the terms of her contract.

A complaint under section 8 of the Unfair Dismissals Act, 1977 was received by the Workplace Relations Commission (WRC) on 5th October 2017.

The Complainant commenced employment with an Agency, Company A on 18th May 2009.   In December 2012 her employment transferred to Company B and in December 2014 it transferred to the Respondent. All of the foregoing took place under the Transfer of Undertakings legislation.

As per the Company records, the Complainant had been absent from work on long term illness from 15th June 2015 and was dismissed from the Company on 30th June 2017 on the basis of capacity to fulfil the terms of her contract.

In her submission, the Complainant states that prior to her transfer to the Respondent, she had agreed with her line manager and HR in September 2014 that she would return from maternity leave on a three-day week. However, at the time the Complainant intentions were that she would avail of this time off from her sixteen-week unpaid maternity leave entitlement, that legally she was not allowed to do. The advice provided from Company B to her line manager at that time was therefore incorrect.

LD HRBP with the Respondent, contacted the Complainant in May 2015 to discuss her circumstances and possible date of return to work. She did advise the Complainant that the previous approval she had received was incorrect, but that she could avail of parental leave on her return to work.   This was confirmed in writing to the Complainant by letter on 26th May 2015.

During 2016, the Respondent held a number of long term absence reviews with the Complainant, during which she was unable to provide any potential date of return to work.   She was informed on each occasion, and on other occasions, that the Respondent may not be able to keep her role open indefinitely. At her request, these meetings took place off site and at no stage did she raise any concerns about the venue. The Respondent would never have proceeded if the Complainant felt in any way uncomfortable.

In November 2016, she attended at the Respondent’s request, an Occupational Health Assessment.   The OHA determined that, in his considered opinion, the Complainant was unfit for work and his prognosis was that she would remain unfit for work for the foreseeable future. The Complainant received a copy of this report and a follow up meeting was arranged with her and HR to discuss the findings. The Complainant did not contest any of the findings, agreed that she remained unwell and was not in a position to confirm any possible date for her return to work.

In April 2017, the Respondent received a doctor to doctor report from the OH Specialist in which the Complainant’s GP confirmed that he could not predict when the Complainant would be fit for work. Following further discussions between LD HRBP and the Complainant, and based on a full review of the medical evidence provided, the Respondent took the decision to terminate her employment.

RESPONDENT’S CASE:

1.       Regrettably the Complainant’s illness prevented her from returning to work in a reasonable time frame-over two years.

2.       The Respondent has taken reasonable steps to ascertain her medical situation and believe that she had been afforded a reasonable amount of time to improve.

3.       At her long-term absence review meetings, she was informed that the Respondent may not be in a position to keep her job open indefinitely and she was not in a position to provide a possible return to work date.

4.       The Respondent apprised itself of the full facts about the Complainant’s medical condition through reports from her own medical practitioner and its occupational health advisor, before arriving at a decision to terminate her employment. Both reports stated that she would be unfit for work for the foreseeable future.

5.       Reports from the long-term absence meetings and the occupational health advisor were shared and discussed with the Complainant and she had the opportunity to comment on these findings.

6.       Subject to medical certification, the Respondent offered to bring the Complainant back on reduced working hours.

7.       The Respondent came to the reasonable conclusion that the Complainant’s situation would not improve for the foreseeable future.

8.       The Respondent would respectfully request that the Adjudicator upholds the Respondent’s position that it was fair and reasonable in its treatment of the Complainant in all circumstances and that her claim for unfair dismissal is not upheld.

Summary provided by Complainant.

BACKGROUND:

1.       I became pregnant in 2014 whilst managing the back-office team. It was then I was investigated on account of bullying by one of my agents. This was a very low time for me. I felt scared, stressed and anxious and started to question my management skills, to add to this I was heavily pregnant.   Myself and my whole team were questioned in relation to events that took place. I felt I was left in the dark a lot and didn’t receive the support that one would expect during this stressful time. To my relief, the claims were unfounded and my name was cleared, however the investigation went on for a number of weeks and was dealt with very unprofessionally and left me in a very vulnerable state.

2.       I was due to go on maternity leave on 31st October. Before leaving I had agreed with my line manager and HR that I would return on a 3-day week. In December of that year, the Company had yet again reviewed their vendor contract.   This meant the contract was to be taken over by the Respondent.

3.       Two weeks prior to my return in May 2015, I received a call from LD HRBP to say that my agreement was to be revoked and that it should have never been agreed upon, it was a mistake on their part.   HR had advised me incorrectly.   At this time, I had already been diagnosed with mental health issues and knew I would not be returning on the proposed date and had advised my manager accordingly. During discussions with LD HRBP she also advised me that I would have to reapply for my parental leave that was in place before I left, this was not guaranteed on my return. I felt like I was being ambushed. I had advised her of my health issues however she would just point out how things would be if and when I was to return. I couldn’t believe how I was being treated as an employee after 5 years of loyal service. This certainly was of no help to my health situation.

4.       It was March 2015 before I received any contact from my employer again. This was to attend an LTA meeting on 15th March 2015. They wanted to have this meeting at my place of work, however, I advised that I was not strong enough to go in so they asked that I meet them in a hotel directly opposite my place of work. We had a follow up meeting on 7th April. In this meeting I was told that they would not be able to facilitate a 3 / 4-day week as there were no positions available.   They would be unable to accommodate any requests for same. I was also advised that there was a remuneration package of almost €5,000 in AL if I wanted to consider my options. I was told after that these meetings would be held every 2 weeks thereafter which ceased to be the case as I never met with them in person again after this date.

5.       The next time they got in touch with me was Sept / October to arrange for me to go and see an occupational therapist which was arranged for the October and cancelled twice until it was definitely arranged to go ahead on 14th November. In this meeting, the therapist advised that the didn’t think I would be fit to return to work for the foreseeable future definitely not for a period of 4 to 6 months.

6.       On 13th February 2017, exactly 4 months to the date I received contact from my employer, a letter dated 6th February 2017 sent by registered post delivered on the date to attend a meeting that morning at 10.30am, however, I had missed the appointment as I only collected the letter from the post office that afternoon. I rang HR to advise of this and to rearrange, the complete lack of professionalism displayed left me feeling bewildered. I did advise that I would be unwilling to attend a meeting in the workplace or the hotel, the previous appointment left me very uncomfortable and anxious as the hotel was packed with people and we had no privacy. I asked that this meeting take place over the phone. It was then rearranged for 23rd February at 10.30am. They failed to make contact of any kind. I sent an email to question this and was told that LD HRBP who was to conduct this meeting was absent due to sickness. A follow-on meeting was then arranged for 7th March, but this was postponed as I hadn’t got copies of the medical report etc which was their main topic for discussion. This meeting did eventually take place on 14th March with LD HRBP. During this discussion, she pointed out that the occupational therapist had deemed me unfit to return and that unfortunately the Respondent would be unable to hold my position open indefinitely, I could either leave or be dismissed. I advised that it wasn’t in my best interest to leave. She did mention that it may affect my entitlement to jobseekers which I was a little shocked to be honest. If I was fit and able to work I would be returning to my position so the fact that she mentioned this was a little disturbing. I asked if she could let me know exactly what AL I was entitled to.

7.       I received no more communication from that point until I got in touch with them on 11th May to ask for a letter confirming my last day of work. At that point, LD HRBP followed up with AL discussions and informed me the figure quoted at last year’s meeting was incorrect and had to be reviewed.   To my dismay, without warning or discussion on the 28th June I received an email from my request about the letter confirming last day of work that the Company have decided to terminate my contract as and from 30th June 2017.

8.       I can’t believe how my situation has been handled. After almost 8 years service, this has had a massive emotional impact on my confidence, my ability and my self-esteem. After the birth of my first child, I returned to work following my maternity leave. I would have considered myself to be a very hardworking, reliable, honest employee with an excellent attendance and punctuality record. Due to unforeseen circumstances after the birth of my second child, my mental health took a turn for the worst and I suffered immensely in all aspects of my life. I feel embarrassed and hurt and almost ashamed for being out of the workplace with a mental illness. The way the Company have dealt with me overall leaves a lot to be desired.   The meetings that took place were in a hotel lobby / bar area with absolutely no privacy to discuss my situation. This was very intimidating and contrary to any guidelines for treating an employee.   I didn’t feel that they made any great effort to help me put in place a plan to get me back to work. I felt they put up barriers when I would suggest something e.g. no positions available. It has been unprofessional and totally disorganised. There is no clear-cut process. Things have not been followed up professionally. I was made to feel as if it was me against them. I don’t believe I have been treated fairly or that there is any consistency within the HR Department for dealing with employees who are out on long term sick whether it be contract or other.

I have carefully considered the events of this case as presented by both parties.

Since commencing employment in 2009 the Complainant has been carrying out the same job for three different employers and it has not helped matters that a transfer of employers has taken place during the period of her maternity leave.

On commencing maternity leave the Complainant felt that an agreement had been reached that would allow her to return to work on a three-day week. This arrangement would see her availing of two days per week of extended maternity leave for a period of 80 days (sixteen weeks) – this is actually a breach of maternity leave rules and this fact was brought to the Complainant’s attention by her new employer, the Respondent in this complaint.

A number of meetings were held with the Complainant during her absence and she was unable to provide any indication of when she may be fit enough to return to work. It is claimed by the Respondent that the Complainant was informed at these meetings and at other times that the Company may not be able to keep her role open indefinitely.

Any meetings that took place were conducted off-site, the choice of venue has been criticised by the Complainant however the Respondent points out that at no stage did the Complainant raise any concern regarding the venue. At the Complainant’s request the meeting originally scheduled for 6th February 2017 (registered letter informing of this meeting was received on 6th February) was held over the telephone. This meeting was held on 14th March 2017. I t was during this telephone meeting that the Complainant claims she was told that she could leave or be dismissed.

The final medical examination took place in November 2016. The Occupational Health Specialist determined that in his considered opinion the Complainant was unfit for work and his prognosis was that she would remain unfit for work for the foreseeable future. The Complainant received a copy of this report and a follow-up meeting was arranged to discuss the content of the report. The content of the report was not contested by the Complainant who agreed that she remained unwell and was not in a position to confirm a possible return date.

In April 2017 the Respondent company received a “Doctor to Doctor” report from the Occupational Health Specialist in which the Complainant’s GP confirmed that he could not predict when the Complainant would be fit for work.

Following further discussions between the Complainant and the Respondent HR personnel and based on a full review of medical evidence provided the Respondent took the decision to terminate the Complainant’s employment.

Case Law.

In Dunnes Stores Ltd v O’Brien (UDD 1714) the Labour Court concluded that there was no prospect of the complainant returning to work from her absence on sick leave in the foreseeable future, the respondent had been entitled to dismiss her on the grounds that she was incapable of performing the duties for which she had been engaged. In coming to this conclusion, the Labour Court declared itself satisfied that the Respondent had afforded the claimant fair notice regarding the possibility of her dismissal; the claimant had not been in a position at any stage to provide an indication of a return to work date and lastly, the claimant had been afforded an opportunity to be heard by the respondent.

It is against this background that I feel there is no option but to decide that the Complainant in this instant case was not unfairly dismissed, the complaint therefore fails.

For the reasons outlined above the complaint fails.

Long term absence: Unfair Dismissal.