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-00017863-002

09/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017863-003

09/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017863-004

09/03/2018

The Complainant commenced employment with the Respondent, an apartment complex owner’s management company, in April 2011. He worked as a caretaker in the apartment block for 16 hours per week, 64 hours per month and was paid €1,083.00 gross per month.   His employment ended on 13th September 2017. A Complaint Form was lodged in the WRC on 9th March 2018.

The Respondent presented a written submission.

The Respondent submitted that it is an apartment complex owner’s management company. The company is solely funded by the payment of service charges by these owners to cover the provision of services provided.  

The Respondent submitted that it was disappointed that the Complainant had not come to them in the first instance with his grievance before taking a claim to the WRC. The Respondent was surprised to receive notice of the Complainant’s grievances via the WRC proceedings.

The Respondent confirmed that the Complainant had commenced employment with them in 2011 and that his employment was terminated on 13th September 2017.

In 2016 the Respondent became aware that the Complainant had no contract of employment and attempted to put one in place. However, due to a dispute about a pay increase the Complainant refused to sign the proposed contract.

The Complainant went out on sick leave on 20th April 2017 and thereafter submitted sick notes, which covered virtually the entire period.     During the absence the Respondent submitted that it regularly sought to get an understanding of the Complainant’s condition and when he might be able to return to work. According to the Respondent, the Complainant was unable to give any further information relating to his illness and/or whether he would be able to return to work at any future date. The Respondent offered the Complainant the opportunity to attend an independent medical assessor but the offer was declined.

The Respondent submitted that despite there being no contract in place and the Complainant not having an entitlement to sick pay the company continued to pay him until 31st May 2017, a full six-weeks after he became ill. In addition, despite that sum already being in excess of the 7.6 days annual leave he was due the a further 10 days salary €500 in recognition of the time he spent with the them on 31st October 2017.

The Respondent submitted that it had acted fairly in its dealings with the Complainant, offering him ample opportunity to return to work and not seeking repayment of the additional salary paid to him during his absence.   The six weeks paid to him being in excess of any notice entitlement.

In oral evidence at the hearing the Respondent stated that the Complainant’s contract of employment allows for only one weeks’ notice, that the six weeks’ overpayment of salary included 7.6 days of annual leave pay due to the Complainant and that the €500 paid in October 2017 was an ex-gratia payment.

The Respondent stated that the reason the company had never sent the Complainant for a scan was because he, the Complainant, had told them that he was already getting a scan and there was no point getting two scans done at that stage, however when the Respondent did push the Complainant about getting a scan there was a “miraculous” recovery and the Complainant was ready to return to work.

The Respondent stated that there was no role to return to when the Complainant was coming back as the Respondent had changed the way the Complainant’s work was done. There was no role for him as a contractor had taken over the Complainant’s role.

In response to questioning the Respondent stated that they never sought medical advice as when they checked with the Complainant he had told them that he hoped to be back soon.

Regarding the Letter of Dismissal, the Respondent stated that they were only fulfilling the instruction they had been given by the Directors of the Respondent company.

The Complainant submitted that he had commenced employment with the Respondent in April 2011 and worked 16 hours per week in a caretaker capacity.

At the hearing the Complainant stated that on 19th April 2017, while working for the Respondent he hurt his back. He informed his manager about this on 20th April and continued to send in medical certs on a weekly basis.

The Complainant met with the Respondent on 15th August 2017 and told him, the Respondent, that the injury had improved and that he hoped to return to work in mid-September. At this meeting the Respondent told the Complainant that although cover had been put in place his job would be there for him when he returned. The Respondent also asked the Complainant if he would be willing to be examined by a company appointed doctor, to which he said he would.

On 30th August 2017, the Complainant emailed the Respondent and informed him that his doctor had told him that his back injury was sufficiently improved to allow for a return to work within a fortnight.

On 6th September 2017 the Complainant emailed the Respondent and told him that he hoped to return to work on Monday 18th September 2017.

On the 13th September 2017 the Complainant emailed the Respondent informing him that he would return to work on 18th September with a doctor’s certificate attached stating that the Complainant was fit to return to work on 18th September 2017.

On 15th September 2017 the Complainant received a registered letter from the Respondent, dated 13th September, dismissing him from his employment. A copy of the letter was presented and it read:

Dear NAME

I am writing to inform you that unfortunately there is no longer a position for you to return to the COMPANY NAME.

I appreciate that this may come as a surprise but due to the long-term nature of your absence the management company has had no option but to make alternative arrangements.

Kind regards

The Complainant wrote to the Respondent on 27th September expressing his disappointment at having been dismissed.

On 2nd October 2017 the Complainant received another registered letter from the Respondent, stating that although he had been overpaid by six weeks they would not be looking for a repayment but they would not be paying him the holiday pay he was due. The Complainant responded to this letter and told the Respondent that he thought the six-weeks’ pay he had received was sick pay. On 16th October the Complainant received a letter from the Respondent telling him that he would be paid his holiday pay and that his P45 would be forwarded to him.

To date, the Complainant stated that he has not received his holiday pay. Nor has he received the €500 mentioned by the Respondent as having been paid as an ex--gratia payment.

The Complainant stated that he has a part-time business, for many years, which gives him some weekend work. However, the salary he earned with the Respondent has not been replaced. He has applied to several positions elsewhere but without success. He did pick up some part-time work in September 2017.

In closing, the Complainant stated that he had done what was expected of him when he was absent by keeping in continuous contact with his employer, including meeting with him.

Section 6(4) of the Unfair Dismissals Act 1977 to 2007 states:

                “Without prejudice to the generality of subsection (1) of this section, the                 dismissal of an employee shall be deemed, for the purposes of this Act, not     to be an unfair dismissal, if it results wholly or mainly from one or more of      the following:

               ( a ) the capability, competence or qualifications of the employee for         performing work of the kind which he was employed by the employer to         do           […]”

It is a long established that persistent absence from work, whether certified or not, may render an employee incapable of doing his/her job and as such may justify dismissal. The case of Reardon v St Vincent’s Hospital, UD74/79, was one of the earliest cases to address this, and the principle has stood since. In that case, the Claimant, Mr Reardon, had a pattern of absence over a period of time, all of which were medically certified, and the Tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6(4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed.

In addition to the above stated case, the EAT also reaffirmed its position pertaining to employees with an unacceptable absence record - reference the case of Behan v An Post, UD 320/2006whereby the Tribunal determined:

                “[T]he Claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the Claimant's incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the    circumstances”

Thus, where an employee is absent from employment for a prolonged period, an employer may be justified in terminating the contract of employment.   The considerations which apply in such cases include the following:

(1)    The continuing absence poses actual or potential problems for the employer.

(2)    There is no reasonable prospect of an early return to work.

Taking each of these two points individually;

1.       I find that the continuing absence of the Complainant did not cause a problem for the employer as another system had been put in place to cover the Complainant’s work while he was absent.

2.       I find that there was a reasonable prospect of an early return to work as the Complainant was only a matter of days away from returning to work when he was dismissed.

In addition to the above, an employer is expected to make an employee aware of the problem their absence is creating for them and the possible consequences for the employee’s continued employment if the situation is not resolved. The Complainant in this case was never put on notice that his absence was creating a serious problem for the Respondent. In fact, using the Respondent’s own terminology, as used in the dismissal letter, it must have come as a “surprise” to the Complainant that he was being dismissed.

I find that the Complainant was unfairly dismissed. It was a dismissal of an employee just about to return to work from an (unpaid) absence of five months. It would seem to me that the Respondent had put a maintenance/caretaking system in place while the Complainant was out and preferred that system to continuing to employ the Complainant.   Rather than deal with this in a manner expected of any decent employer the Respondent unceremoniously dismissed the Complainant, cold-heartedly and without even a nod to the requirements of natural justice.

For the above reasons I find that the Complainant’s dismissal was unfair within the meaning of the Act.

Having regard to the totality of evidence adduced by the Parties at the hearing, including the Complainant's evidence in relation to his loss to date attributable to his dismissal and his efforts to mitigate that loss, I award the Complainant €12,996 by way of compensation, being the equivalent of 52 weeks’ remuneration. As the award is made by way of compensation for loss of earnings it is subject to income tax.

Long-term absence, return to work, notice