Complainant

Respondent

Anonymised Parties

An employee

An outsourced solution provider

Representatives

Fionnuala Ní Bhrógáin Communications Workers' Union

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-00019399-001

24/05/2018

The Claimant was employed initially by Company A on 2nd June 1998 and via a series of TUPE transfers, her employment passed to the Respondent on 1st December 2014. She worked in a variety of roles during her career and ultimately worked as a Quality Assessor on a part time basis. The Complainant’s role was to listen to calls by agents and to provide scoring, coaching and feedback on their performance. Her employment was terminated on 9th February 2018 on the grounds of capacity.

After an unsuccessful internal appeal, the complaint was referred to the Workplace Relations Commission (WRC) on 24/05/2018.

Background to the Claimant:

1.       The Claimant was employed initially by Company A on 2nd June 1998 and via a series of TUPE transfers, her employment passed to the Respondent on 1st December 2014. She worked in a variety of roles during her career and ultimately worked as a Quality Assessor on a part time basis. The Complainant’s role was to listen to calls by agents and to provide scoring, coaching and feedback on their performance. Her employment was terminated on 9th February 2018 on the grounds of capacity.

2.       The Complainant had a long history of extended absences from work, mainly stress related, and an equally long history of making unwarranted and unfounded allegations about her line managers.   It should be mentioned that the Complainant enjoyed a generous sick pay scheme and could take up to 6 months off at full pay and an additional 6 months off at half pay. In 2017, she was absent from work a total of 154 days and during her long-term absence review meetings she was repeatedly warned that the company was becoming increasingly concerned about her capacity to fulfil her employment contract and that it would not be in a position to keep her job open indefinitely. During 2017, the Complainant went absent from work from 28th April 2017 until 02nd August 2017 and prior to her return she sought a number of clarifications about:

a)       Where she would be located? She was informed that she would be based on the 5th floor.

b)      Who would her manager be? She was informed who her manager would be.

c)       Would she be dealing with the same class agents?   She was informed that she would be working with new agents.

d)      Would she be doing a complaints role? She was informed that she would not be doing complaints.

e)      Clarification on her working hours? Confirmed that her requested working hours would be as they were before.

3.       The above was confirmed to the Complainant by letter dated 24th July 2017.   However, between the confirmation letter and the Complainant’s return, the 5th Floor was allocated to a new client and the Complainant was informed of this in advance.

4.       The Complainant then returned to work on 2nd August 2017 and allegedly refused to do any work as her login had expired. The log in issue is a normal occurrence when someone has been out on long term absence and as the client are the only ones to activate the logins, the date that the Complainant’s login would be restored was entirely outside the Respondent’s control.

5.       In the intervening period, her manager asked the Complainant to do some call listening to re-familiarise herself, which she refused to do and removed herself to a couch to read a novel.   The Complainant also was refusing to complete her ITime, the Respondent’s online time and attendance system or do any work to reintegrate herself back to the workplace. The team leader approached the HR Director for advice on this while at the same time the Complainant complained to the HR Director that she felt that the team leader was harassing her. The HR Director suggested that often one of the best ways to resolve these issues was through the informal process and both the team leader and the Complainant agreed, but the Complainant requested that she be accompanied by her Union Representative at a meeting which took place on 2nd August 2017 that looked at both party’s issues, and an agreement to move forward was reached and both the Complainant and her Representative thanked the HR Director for his interventions. The Complainant then went on long term absence from 11th August 2017.

6.       The Complainant was requested to attend a long-term absence review meeting in the Gresham Hotel with the Senior HR Manager on 26th October 2017. That morning, the Senior HR Manager was unavailable and the HR BP immediately rang the Complainant’s mobile offering her the chance to re-schedule or that the HR Director would attend in place of the Senior HR Manager. The Complainant did not answer her phone, so the HR BP left her a message to that effect. The HR Director and HR BP proceeded to attend the meeting in the Gresham Hotel. The Complainant and her representative were in attendance, and once again she was offered the option to postpone or proceed with the meeting. The Complainant and her Union representative both suggested that the meeting proceed. When the HR Director asked the Complainant, what could the company do to assist her return to work, she replied “provide me with a safe working environment”. When asked by the HR Director what she meant by that, she replied “you know exactly what I mean on the 5 points I raised before”. The HR Director asked her to tell him about these. The Complainant refused, stating that the HR Director should know well what she was referring to. The HR Director pointed out that he had been out of the business for a few weeks due to cancer surgery and couldn’t remember every detail. He asked the Complainant for her understanding but she refused to elaborate.

7.       Eventually, the HR Director stated that he would return to the office and get her full file and would be back in ten minutes.   On his return, the Complainant was not there and her Union Representative said that she was gone to the bathroom but would not be returning. The HR Director stated that a refusal to engage in the absence review process was a disciplinary matter and that the Complainant would be so informed.

8.       By letter dated 24th November 2017 the Complainant was informed about a disciplinary hearing to be held by the Senior HR Manager on 29th November 2017 regarding her non-participation in the Company’s long-term absence review process. At this matter, the Union Representative stated that he had advised the Complainant to go home on 26th October as there was, in his view, little or no chance of the meeting leading to a successful outcome. Given this explanation, the Company took no further action.

9.       It should be mentioned that at no stage did the Complainant attempt to explain any of the factors which she later relied on to justify her absences at this meeting.   Other than to retrospectively claim that she felt she did not have the support she needed about a safe working environment but would not specify what she meant by this.

10.   On 18th December 2017 the Senior HR Manager wrote to the Complainant in which he highlighted the Company’s continuing concerns regarding her poor attendance at work. The Senior HR Manager once again confirmed to the Complainant that her employment was at risk on the grounds of capacity and that, in the Company’s view, there was a real risk of returning her to a position which she found stressful. She was invited to a further meeting on 4th January 2018 and was informed that she was required to attend an Occupational Health Assessment scheduled for 10th January 2018.

11.   A further meeting was arranged for 9th February 2018, during which the Company’s concerns about the Complainant’s attendance were again discussed, particularly in light of her recent Occupational Health review, where the examining doctor stated that he was “unable to predict whether returning to work in the same working environment would not cause her further significant stress”. He further stated that “it appears to me that the concerns of the employer are reasonable and I note that there are no alternative suitable roles for this lady”. Following this meeting, having considered all facts, particularly her history of extended absences due to work related stress and on the basis that there was no suitable alternative role to offer the Complainant, the Company decided to terminate her position.

12.   Under Company procedures, the Complainant appealed this decision to the Vice President who heard the appeal on 13th April 2018 and informed the Complainant and her Union Representative that due to business travel he would reply as soon as possible. By letter dated 2nd May 2018 the Vice President upheld the position to terminate the employment of the Complainant.

Company’s Case:

1.       It is the position of the Respondent that the Complainant was dismissed on the grounds of capacity to fulfil her employment contract, due to her ongoing pattern of absences from work over a lengthy period of time.

2.       The Complainant had been warned on a number of occasions that the Company would not be in a position to keep her job open indefinitely.

3.       It is also our contention that there were serious concerns about placing the Complainant back in an environment which she alleged was continually making her sick and the Occupational Health Advisor stated that these concerns were reasonable.

4.       When challenged by the Vice President during her appeal hearing, it emerged that the Complainant had complaints against every line manager she had ever worked for and against every HR employee she had encountered.

5.       It is unfortunate that the Complainant could not offer any reassurances that her returning to work would be sustainable in the future, which was also the view of the Occupational Health Advisors.

6.       During her absence which lead to her dismissal, the Complainant never stated that she had any issues with how the meeting in the Gresham Hotel went nor offered this as any mitigation for her absences.   Had she done so, this would have been fully investigated at the time and action taken if necessary to allay any concerns.

7.       It should be noted that the generosity of the sick pay scheme that the Complainant enjoyed is unparalleled in our industry and that in the Respondent’s opinion the Complainant appears to have abused the scheme.

8.       In circumstances where an employee is absentee for more time than they are available to work for any reason, the Respondent would be reasonably entitled to draw an inference that they do not have the capacity to fulfil their employment contract and particularly where Occupational Health reviews confirmed the same.

9.       The Respondent believe that it has at all times treated the Complainant in a fair and reasonable manner and addressed her work-related concerns in a timely and pragmatic way.

1.       In 2017 the Complainant was absent from work from 1st May to 2nd August due to certified ill health.   During July 2017 there was engagement from the company to make arrangements for the Complainant to return to work on 2nd August. This resulted in a communication being sent on 24th July clarifying five main issues that were of concern to the Complainant.   Amongst those was a reassurance that the Complainant would return to the floor and colleagues with whom she had previously worked.

2.       The Complainant returned to work on 2nd August and was directed to attend work on a different floor to the one that had been agreed. On her return, no log in facilities were prepared to enable her to begin work.   This was raised with her team leader on the same day and with the IT Department (IT’s Easy) the reference number of which was sent to the team leader on 4th August.

On 9th August Ms Cassidy again approached the team leader to resolve the issue with log-ins. There were several exchanges throughout that day leading to the Complainant filing a formal grievance with the HR department. The subject line of the email submitting her grievance read “confidential”.

3.       On 10th August the Complainant was approached by her team leader and asked to attend a meeting for which the Complainant asked for an invitation to be sent via email. The team leader left and returned at the Complainant’s desk with the HR Director who called her to a meeting. There was no written invitation sent to the Complainant in advance. The Trade Union representative was invited, minutes before, to attend what was put to him as an informal meeting. The Complainant, taken by surprise being approached at her desk, attended the meeting in good faith.

4.       During the course of the 10th August meeting, the HR Director directed the Complainant to read her complaint out loud to the team leader. The Complainant was then questioned about her complaint by the subject of the complaint, the team leader, in the presence of the HR Director. It is not clear when the team leader became aware of the complaint or its contents. No company policies including Grievance, Disciplinary, Bullying & Harassment or Dignity at Work policies were provided or referred to during the meeting. No company notes were taken and no minutes were provided after the meeting.

5.       The Complainant returned to certified sick absence on the following day 11th August.

6.       In November 2017, a long term absence review meeting was held in the Gresham Hotel with the Complainant, the HR Director and the Trade Union Representative. During the course of this meeting, the Complainant became upset and the Trade Union Representative called for the meeting to be adjourned.   No minutes were provided after the meeting.

7.       On 24th November, the Complainant received a letter from the HR Director accusing her of having “walked out” of the meeting and for this reason her access to the company sick pay scheme was being suspended. The letter goes on to invite the Complainant to a disciplinary hearing. Disciplinary procedures were provided with the letter.

8.       The disciplinary hearing was held on 1st December 2017 and was conducted by the Senior HR Manager.   During the meeting it was put to the Complainant that she had left the long-term absence meeting abruptly.   The Trade Union Representative then clarified that he had suspended the meeting and he spoke to the HR Director on the basis that she was becoming agitated. Also during this meeting the Complainant indicated that she believed she as fit to return to work and outlined the extra measures undertaken to improve her health including mindfulness, exercise, counselling and lower medication. She also indicated that she would be prepared to deal with any issues.   There was no outcome to this disciplinary meeting.

9.       On 17th December the Complainant called the HR BP notifying of her intention to return to work. The following day the Complainant received a letter indicating that no further action would be taken on the basis of the Trade Union Representative’s evidence of halting the meeting in November.   No mention is made of restoring the Complainant to the company sick pay scheme on this basis. However, the same letter then goes on to invite the Complainant to a further disciplinary meeting in January 2018.

10.   On 19th December the Complainant made a second call to the HR BP to discuss her return to work. During this call, the Complainant was informed that she was suspended until the disciplinary hearing in January. No suspension letter was received; however, it was confirmed by email from the HR BP. No reason was given for the suspension.

11.   A meeting was held on 4th January 2018 to “discuss [her] overall capacity to fulfil the terms of [her] employment contract”. The meeting was conducted by the Senior HR Manager. He notes that “this meeting is not a disciplinary meeting”. The Senior HR Manager further notes that the Complainant has provided a certificate from her doctor indicating her fitness to return to work.

12.   It was agreed that the Complainant would attend an Occupational Health assessment scheduled for 10th January 2018.

13.   On 9th February, the Complainant attended a disciplinary hearing conducted by the Senior HR Manager where the Occupational Health Assessment was discussed. No minutes were provided after the meeting.

14.   Later that date, the Complainant received the outcome of the hearing notifying her that the “company has now reached the decision to cease [her] employment effective immediately”.

15.   The Complainant indicated her intention to appeal and sought time to conduct a data request. Once completed an appeal was submitted on the grounds that the company failed to comply with the principles of natural justice and fairness as set out in the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000), the calculation of the number of days’ absence and the validity of the Occupational Health report. The appeal hearing was held on 13th April 2018 conducted by the Vice President. The Vice President entered the room and stated that the hearing could last no more than 30 minutes as he had another engagement.

16.   During the appeal meeting, the Complainant and her representative raised what was felt were the main issues with the process to date, as outlined above. The Complainant also queried the calculation of days absence. The Vice President undertook to look at the calculation and said that it may be due to the Complainant working part time. It is the Union position that this issue was not addressed satisfactorily in the outcome letter as the Vice President simply concludes that “there can be no disagreement between us that the Complainant has missed substantial time off work that would constitute frustration of contract ….”. It is not outlined what constitutes “substantial” time off work or how that conclusion can be reached without knowing the actual number of days absence.

17.   The Complainant also raised the matter of the Occupational Health report. In the report it again stated that the Complainant had missed a total of 154 days in 2017. It further states that the company has “no suitable alternative roles” and cites a “detailed referral letter” citing “legal advice”. The Complainant sought a copy of the referral letter from the company and this was declined as it was deemed “a legally protected document”.   Notwithstanding the fact that the Complainant never made a complaint about her role, per se, there is no evidence of what exercise was conducted by the company to seek an alternative role or what engagement was had with the Complainant to seek such a role.   The report concludes that the Complainant is currently fit for work but ultimately cites the concerns of the employer in the recommendation.

18.   In the appeal meeting it was proposed that an independent, third party medical expert be engaged. However, the company declined to discuss this proposition and did not address it in the outcome letter.

19.   Finally, it was put to the company that the Complainant had no history of disciplinary sanction since her initial employment in 1998.

20.   The outcome was given on 2nd May 2018 upholding the company’s decision to terminate her employment.

Summary of Union Case:

1.       The Complainant made numerous attempts to return to work as this was frustrated by the company on each occasion.

2.       The Complainant was medically certified for each absence period. It was not until she sought to return to work that the company began procedures to discipline her.

3.       Company processes were routinely ignored or failed to meet adequate standards of natural justice and fairness.

4.       The Complainant disputes the HR Director’s account of the meeting of 10th August in the appeal outcome letter.   She further disputes the team leader’s account and strongly denies an accusation made by her that was not put to the Complainant before appearing in the appeal outcome letter. As there are no minutes of this meeting, the Vice President had to rely on the evidence of the two individuals the Complainant alleges did not follow fair procedures.

5.       Regarding that same meeting, in the appeal outcome, the Company maintains that because the team leader had separately approached the HR Director regarding the Complainant’s performance/behaviour that it was proper to bring these two separate issues together to be addressed in a single informal meeting.

6.       It is the Union’s position that if there were questions to answer regarding performance this should have been dealt with separately, via a disciplinary process. Having sought a formal grievance hearing, in writing, with the subject line “Confidential” the Complainant had a reasonable expectation that a grievance process be initiated.

7.       The Complainant was suspended from the company sick pay scheme in November 2017 and was not restored/reimbursed when the company conceded that she did not “walk out” of a meeting. She has been without pay ever since.

8.       The Complainant was informed on a phone call (made by her) that she was suspended. She was never given a suspension letter, or a reason for the suspension. The suspension, awaiting a disciplinary hearing, spanned the Christmas period and let to considerable distress.

9.       Due consideration was not given to the fact that the Complainant had a previously unblemished employment record.

10.   The decision to dismiss the Complainant under such circumstances was excessively punitive, given her repeated attempts to return to work.

Given all the above the Union respectfully requests the Adjudicator to find that the Complainant was unfairly dismissed. As a result, the Union is seeking reimbursement of lost earnings dating to the Complainant’s suspension from the company sick pay scheme on 24th November 2017. The Union further asks the Adjudicator to direct the company to re-engage with the Complainant regarding a return to her role.

The Union appreciates the assistance of the Workplace Relations Commission in this regard.

Extensive submissions were presented by both parties – there were differing and conflicting views presented at hearing.

My job in hearing the complaint is the same as that outlined by the EAT in the case of Looney and Co v Looney (UD 843/1984):

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the Eat to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

In this instant case I have to look at the actions of the employer and consider were these the actions of a reasonable employer.

The Complainant had lost a lot of time from work due to absenteeism, there is no doubt about that. When present at work she was a difficult employee to manage, this was clearly stated at hearing, although her union representative does point out that she had an unblemished record of employment.

I note that prior to a return to work, a letter dated 18th December 2017 was sent to the Complainant, this letter from the Senior HR Manager invites the Complainant to a meeting on 4th January 2018 to discuss the Company’s concerns regarding the Complainant’s continued employment. It is important that we look at the content of this letter:

‘I refer to your recent disciplinary hearing in relation to the long term absence review meeting held in the Gresham Hotel. Based on the evidence put forward by PS, CWU, that he had instructed you to go home on the day, the Company have decided not to take any further action against you.

However, of continuing concern to the Company, is your lack of ability to fulfil the terms of your contract of employment, particularly in your poor attendance at work. Indeed, a review of your attendance profile over many years, indicates continuous absence issues with work related stress, and as I discussed with you at our meeting, this is the cause of serious concern to the Company.

Clearly the Company has a duty of care to you and could not condone placing you in a situation where the issue of work related stress may arise. We are also concerned that if we were to return you to such a situation, you would end up where you once again could go absent on work related stress. This leads us to question whether you have the overall capacity to fulfil your employment contract.

Accordingly, you are requested to attend a further disciplinary meeting with me on Thursday January 4th at 11.00am to discuss the Company’s concerns regarding your continued employment. I would remind you that you are entitled to be accompanied at this meeting by your trade union representative’.

Yours sincerely,

At the meeting on 4th January 2018 the Senior HR Manager states that this is not a Disciplinary Meeting but a follow up to a previous meeting. The letter outlined above and dated 18th December quite clearly refers to a Disciplinary Meeting.

At this meeting the Complainant was informed that she was required to attend “an Occupational Health Appointment to determine your suitability for work” – should this not be her fitness for work? The appointment with the Occupational Health Specialist was scheduled for 10th January 2018, some six days after this meeting. It should be noted that the Complainant had provided a medical certificate from her own GP stating that she was fit to resume work on 20th December 2017.

Towards the end of this meeting the Senior HR Manager states that “This meeting is being held in accordance with our company procedures. Based on your past record, the company are obliged to establish whether or not you are fit to carry out your role. We will wait to receive the report from the OHA and we will then schedule another meeting”.

Moving forward to the meeting with the Occupational Health Specialist held on 10th January 2018.

The Referral Form completed by the Respondent reads as follows:

Reason for referral: Please attach a job description.

Ms XXXXXXX (name inserted) has a history of absence allegedly based on work related stress, dating as far back as 2010.

In 2017 she missed a total of 154 days in two periods (1/5/17 to 2/8/17 and 11/8/17 to 19/12/17). When Ms XXXXXXX (name inserted) returned to work on 2/8/17 she complained about her role, her manager and work location and went absent from work again.

In December 17, she claimed that she was fit to resume work and that she would return to the exact environment that she previously claimed had caused her work-related stress. As a responsible employer, xxx (company name inserted) have a duty of care to her and could not consider or condone (based on legal advice) placing her back in the same environment that had caused her stress. The Company have suitable alternative roles for her. Of continuing concern to the Company is Ms XXXXXXX’s lack of ability/capacity to fulfil the terms of her contract of employment. Ms XXXXXXX (name inserted) works approx. 32 hours per week.

The report from the Occupational Health Adviser at point 4.2 reads as follows:

Occupational Issues: In my considered opinion, this lady is currently fit for work. On saying this, I am unable to predict whether returning to work in the same working environment would not cause her further significant stress. It appears to me that the concerns of the employer are reasonable and I note that there are no alternative roles for this lady.

I note the OHA’s considered opinion that the Complainant is fir for work.

The next meeting took place on Friday 9th February 2018. The main topic of this meeting was in relation to concerns regarding the Complainant’s ability to fulfil the terms of her contract of employment. The Complainant was provided with the opportunity to state her case at this hearing. It is worth noting that no minutes of this meeting were presented at the hearing, minutes of other meetings had been opened at hearing.

Later, the same day, 9th February 2018 the Senior HR Manager wrote to the Complainant, part of this letter reads as follows:

‘Having carefully reviewed the facts as presented during this meeting and based on earlier discussions, the company has now reached a conclusion.

You are being notified that the Company has now reached the decision to cease your employment effectively immediately. Your last date of employment is today, the 9th of February 2018’.

The letter dated 18th December 2018 invites the Complainant to attend a disciplinary meeting on January 4th, 2018 to discuss the company’s concerns regarding continued employment. In the minutes of this meeting the Senior HR Manager states “This meeting is not a disciplinary meeting but a follow up to our previous meeting”.

The letter dated 09th February refers, at paragraph 2 to a “hearing”.

The letter of referral to the Occupational Health Adviser, that was not issued to the Complainant due to it being described as being a “legally protected document” is biased in favour of the Respondent.

The Occupational Health Adviser has stated that in “his considered opinion” the Complainant was fit to return to work.

I have considered all arguments and now find that the Complainant was unfairly dismissed by the Respondent.

Having found in favour of the Complainant I order the Respondent to pay compensation of six months’ pay. As per complaint form the Complainant was earning €2,200 per month, the compensation is therefore €13,200.

Compensation should be paid within 42 days of the date of this notice.

I find in favour of the Complainant. The redress is outlined above.

Unfair Dismissal.