ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016048
Parties:
| Complainant | Respondent |
Anonymised Parties | A Special Needs Assistant | Board of Management of a School |
Representatives | Forsa Head Office | Mason Hayes and Curran |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00020834-001 | 27/07/2018 |
Date of Adjudication Hearing: 23/01/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This case involves a claim for Unfair Dismissal on behalf of a Special Needs Assistant against the Board of Management of a School. Both parties were represented, the complainant by her Union and the Respondent by their Solicitors. Both parties made helpful written submissions. I received a copy of a Doctors letter referred to at hearing. Neither party were able to locate the complainant’s contract of employment. |
Summary of Respondent’s Case:
The Respondent is the Management of a Primary School. The Complainant commenced work as a Special Needs Assistant in November 2006. She availed of a career break during the school year 2015/2016 which she extended into the subsequent school year of 2016/17. However, the complainant changed her mind and sought to return to work. The Respondent permitted her return on reduced hours which were then normalised to the 32-hour week full time position in September 2017. The Complainant resumed work in September 2016. On 6 February 2017, the complainant commenced on pregnancy related sick leave, which was changed a few weeks later to work related stress. Her absence continued until the conclusion of her protective leave in October, where her absence continued but the reasoning for same reverted back to work related stress. In March 2017, the complainant initiated a grievance against Mr. A, the Principal at the school, based on her reduction in hours. He in turn offered to meet with the complainant, only to learn from her that she intended meeting the Chair of the Board, Fr B. The Respondent allocated an extern to hear the grievance, Ms C, who concluded that there were no grounds for the grievance. This was confirmed to the complainant on 25 September 2017. The Union wrote to the Respondent in November 2017 raising a reference to an earlier grievance, clarification was sought by the respondent, but nothing further was heard from the Union until the parties met surrounding the complainants ongoing absence from work in June 2018. The Respondent submitted that the complainant was expected back to work on 9 October 2017. By then the complainant had disengaged and missed notification of sick deadlines, causing a delay in sourcing substitute cover. She refused to engage in the Garda Vetting Procedure. The Respondent referred the complainant to their Occupational Health Advisors on 10 November 2017. She was reviewed on 5 February 2018 and deemed medically unfit for work but fit to participate in a process to try and resolve any perceived work-related difficulties. She was to return in 6 weeks. The Complainant disengaged from the process and missed three subsequent scheduled appointments. A letter dated 12 June 2018 followed from Respondent to Complainant which summarised the status of her employment as” at risk” due to her non compliance with Occupational Health and her failure to communicate with the respondent .The Complainant was invited to be heard at a meeting of the Board of Management set for Thursday, June 21 , the purpose of which was to consider the extent of the complainants absence and the termination of employment .The Meeting was rescheduled to June 28 to facilitate the complainants availability . The meeting proceeded as planned but was unsatisfactory due to the complainants failure to give explanations for her absence or indicate a return to work date .The Respondent re-affirmed their position on the lack of any information from the complainant on why she had been non-compliant with Occupational Health Dept and non-communicative with the respondent , who had no idea of her intentions regarding return to work. The Respondent submitted that they had no medical evidence on the complainant’s potential to resume work. They issued notice of termination of employment. The Respondent submitted that this was a fair, reasonable and proportionate measure by the Board in response to the complainant’s disengagement at Board and Occupational health level. The Respondent had honoured the principles of fair procedures and natural justice. The respondent ha followed the Circular 0054/2015. In addressing the complainant’s submission on loss and mitigation, the Respondent relied on jurisprudence in Coyle V Tipper house ltd, in the case of an Unfair Dismissal, where the complainant had been unfitting for work since the date of termination through redundancy. The EAT did not make an award of compensation due to the omnipresent disability payments. The Respondent relied further on O Sullivan V O Sullivan UD941/2007(2009) where continuous receipt of disability payments caused an award of 4 weeks pay by the EAT. The Respondent disputed the claim for Unfair Dismissal and any claim for compensation as a result. Evidence of Mr A, Principal Mr A confirmed that he referred the complainant to Occupational health in the aftermath of her grievance. This was a discretionary referral. He subsequently increased her hours to 32 hrs pe week at his earliest opportunity. She had submitted certs for a range of conditions from Pregnancy, Pneumonia and Work-related stress. He confirmed that the complainant had disengaged from OccupatioanlHealth and the Garda Vetting process. Replacement cover was haphazard because of her disengagement. She continued unpaid leave. He took advice on process from the Schools advisory service. During cross examination Mr A confirmed that replacement SNAs couldn’t be sought due to the lag in the complainant’s medical certificates. The Complainants mother spoke on her behalf when she was away from home in April 2018. Mr A had no intention of actioning the Disciplinary procedure against the complainant, his main issue was that she would not engage with Occupational Health Department. The Board of Management believed that dismissal was the correct measure taken, as the complainant had presented substantial grounds for her dismissal. This was the first dismissal undertaken at the school and the Board genuinely believed that they were acting on proper external advice. The Respondent was emphatic that they had never “received or been given “the Doctors letter dated 20 June 2018. |
Summary of Complainant’s Case:
It was common case that the Complainant had been employed as a Special Needs Assistant since November 2006 until her dismissal on 5 July 2018. The Union, on behalf of the complainant submitted that this constituted an Unfair Dismissal in disregard for the provisions of Section 14 of the Unfair Dismissals Act, 1977. The Union argued that the presiding circular to be observed and followed by the Respondent was circular 0072/2011. This Circular evolved from the Department of Education and Science dated 15 December 2011 and was titled: Grievance and Disciplinary Procedures for Special Needs Assistants in Recognised Primary and Post Primary Schools The Union submitted that this circular was never invoked or referred to by the school during the dismissal process. When the Union attended a meeting concerning the complainants attendance record on June 28, they raised the “procedural mis fit “and sought compliance with the Circular. The Respondent confirmed that the School was acting on its own advice and the Department was not the employer in the case. The Union representative stated that he was personally rebuked by Mr A for his submissions and repeatedly referred to as “a disgrace “. The Union wrote in response the following day date June 29, an extract of this email follows. This letter was directed as the Chair of the Board, Fr B. “….. the letter of June 12 noted that the matter to be discussed pertained to the Sick leave Circular (0054/2015) However, notwithstanding this, Mr A brought up other matters that were not flagged in the letter, including a reference to a grievance that had been taken against him by the complainant and a reference to a career break matter. ……. these statements were made in front of the Respondent. It is the responsibility of the school to give a fair and impartial hearing, in accordance with 071/2011….it is unclear how the school, as her employer, could ever give her an impartial determination. ….. we ask that you immediately clarify how you wish to proceed with the complainant’s case ………Circular 0071/2011 must be followed …… I ask again, to consult with the Department of Education in relation to the course of action that has been proposed. The Union submitted that this letter did not receive a response. Dismissal followed and there was no facility allowed for appeal. In referring to a Templated contract, the Union referred to Circular 0072/2011, where Suspension, Disciplinary sanctions and Dismissal were governed by this circular. Because of the respondent deviance from the Circular, the Complainant had been unfairly dismissed. The Complainant was disadvantaged by the Meeting programme of 28 June 2018. Complainants Evidence: The Complainant confirmed that she availed of a career break in school year 2015-2016. She had secured a further year extension but 8 days later changed her mind. She was permitted to return to work in school year 2016 and understood from her conversation with Mr A that she would work a 20-hour week rather than her contracted 32 hours. These would be formatted as 8.40 am to 13.30 hrs 5 days a week. She agreed to this. She requested any additional available hours only to be told that she “was lucky to have a job”. She was aggrieved that she was compelled to be the first to leave daily as she witnessed others doing better. She became pregnant and realised the impact of her shorter hours on the maternity support package. She was not permitted to sign on for job seekers benefit. The Complainant invoked a grievance seeking a resumption in her full hours. In January 2017, she sought a partial redundancy. She received a “yes “followed by a “no “. She became ill and proceeded on sick leave. She attended Occupational Health (OHD) to address work related stress. The Complainant confirmed that she missed her first scheduled appointment at OHD due to Flu. At further appointments she was directed to Counselling and to receiving Medication for Depression. She felt unable to engage with the School as she felt that she was” terrified to go back “she just couldn’t speak with Mr A. She submitted that she was never approached to declare a back to work date and was under the care of her GP. During the June 28 meeting, which lasted 25 minutes she was informed that her grievance was “null and Void “She had received a blank, unpopulated email from a previous principal’s email address and had not known that the Grievance had concluded from the Respondents perspective. She was informed that her return to work would be contingent on a final back to work cert and a visit to Occupational Health. The Complainant denied that she had left the School standing without updates on her condition. She understood that a replacement had been hired to 2.30 pm daily. She submitted that she adored her job She confirmed that her return to work post career break had not been linked to any documentation or form filling and she did not have a clear understanding of her status. During cross examination, the complainant confirmed that she understood that the junior infant day was not available to her on her immediate return from career break. She wasn’t aware whether Temporary substitute could access more than that. She confirmed that she had availed of counselling and had not pressed on with Stage 2 of the grievance procedure. She confirmed that she had not received a grievance outcome letter. The Complainant stated that she thought she would get a chance to speak at the June 28 meeting. She confirmed that she had ignored three appointments and cancelled two. She had not felt well. She avoided engaged by “running for the hills” as she thought that she would be forced to go back to work. The Complainant confirmed that her full 32 hours were re-instead in September 2017 but only for a month. Her Temporary Rehabilitative sick pay was cut off when she had not complied with the Occupational Health. She had visited her partner for a three-week period, who now resides in the US in April 2018. The Union on behalf of the Complainant exhibited a Doctors note dated 20 June 2018 which confirmed the complainant’s absence in the United States, the beneficial effect of same and her availability to meet with Occupational Health. The Complainant sought the remedy of compensation. The Complainant had been unable to mitigate her loss due to sick leave.
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Findings and Conclusions:
I have considered the facts of this case as presented by the parties. I have considered the oral evidence and the collective submissions of the parties. I am being asked to decide whether the Complainant was unfairly dismissed by way of the Board of Management letter date 5 July 2018?
Before I can record this decision, I have taken time to reflect on the circumstances as presented in the case. The Complainant submitted that she had 9 great years at the Respondent school prior to taking her career break in 2015. This was not disputed by the Respondent. She benefitted from the break and sought to extend the career break only to almost simultaneously rescind the application and replaced it by an application to resume her work.
By then, the School had populated the workforce for academic year 2016 and the Complainant resumed duty on reduced hours with an assurance that the full hours would be restored by the next academic year. I identified an early fault line in this case corresponding with this period.
I accept that the complainant was not requested to complete documentation to reflect the back to work interim arrangements. I found this to constitute a regrettable omission as both parties formed their own views on the complainants standing at the school.
The Complainant believed that she had lost seniority and been overtaken by her Peers on attendance. The Respondent adopted an adulatory response, pleased that the school could step in and help the complainant when she had been sanctioned for career break. Taken in tandem with no visible contract of employment, I believe the unease from both party’s perspectives occurred from that moment onwards.
I found some confusion surrounding the grievance outcome in September 2017.
I appreciate that this was a busy time in the complainant’s life, however, the full terms of the Grievance Circular 0072/2011 were available to her. I cannot accept that it was reasonable for her not to pick up on a blank email sent from a previous Principals Email address. Equally, it was within the Respondents gift to meet the complainant to convey the grievance outcome and inform her of the right to appeal. I am satisfied that no appeal followed. At any rate, the complainant’s hours were restored in full at the school’s earliest opportunity. The period that followed is the central period in this case, that is the complainant’s period of sick leave and the eventual dismissal. It is not my role to decide whether the complainant was right or wrong in her behaviour. My role is to investigate the decision taken to dismiss and to decide whether substantial grounds contributed to this decision and whether the Respondent acted within the “band of reasonableness “of a reasonable employer.This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224(Court of Appeal for England and Wales) in the following terms: -
It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”
The letter which conveyed dismissal referred to a period of continuous absence from February 2017. However, this period incorporated a period of Pregnancy related sick leave and protected leave. In the Labour Court Case of Dunnes Stores Ltd and Elaine O Brien UD 1714, the Court recognised the differentiation between sick leave and protected leave in their deliberations, to discount it from the core issue. I agree with this distinction.
The letter went on to reflect that the Respondent had found that the complainant was not compliant with the Occupational Health procedures. It went on to say that an opportunity given to the complainant to be heard was unsuccessful
“…. You did not offer any explanation in relation to your unapproved leave. You also gave no indication in relation to you on going unapproved unpaid leave. You also gave no indication in relation to when you will be able to return to your post. Occ Health cannot advise the Board either in this regard as you have refused to attend on numerous occasions. There is no medical evidence available to the Board as to when you might be able to resume your duties. For that reason, the Board, unfortunately, has no option but to give you notice of termination of your employment on the grounds of medical incapacity ….”
Section 6(4) of the Act provides that 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) capability …. of the employee for performing work of the kind which she was employed by the employer to do
The seminal case in this area is still the High Court Decision in Bolger V Showerings [1990] ELR 184. The test is set out here:
- Was Incapacity the reason for the Dismissal
- Was the reason substantial?
- Did the Employee receive fair notice that Dismissal for incapacity was being considered?
- Was the Employee affording an opportunity to be heard?Both parties hung fast to the presiding nature of two Circulars, The Respondent submitted that the Complainant was governed by the terms of Circular 0054/2015 where the Minister for Education directed a specific course of action in management of sick leave. The Respondent contended that this Circular was ignored by the complainant which led to the decision to terminate her employment as a last straw measure. For the Complainant, the Union relied on the Circular 0072/2011 where the Minister for Education directed a specific course of action in the activation of grievance and disciplinary procedures. The Union contended that this circular was ignored by the Respondent and the Complainant was unfairly dismissed as a result.I noted that the Sick leave Circular directed a specific course of action in the face of noncompliance with Occupational Health Referrals. It goes to the core of the case that this specific action was not adopted by the Respondent, therefore the rush to dismissal was as a result too far too soon. Dismissal must always be an action of last resort due to the potential for catastrophic effect on the recipient. The Union referred to contractual terms which protected the complainant, however, both parties accept that the contract was not available to me.I appreciate that the Minister for Education and Skills and Ann Boyle [2017] IECA 39 alludes to a unique tri-partite employment relationship for Teachers /SNA which appoints two employers in a school setting. The Respondent accepted that they were the employer in this case and confirmed that they had been externally advised.
- The cases suggest that all employees whose employment is under threat of termination due to a medical finding should be afforded the following basic rights:
- In a recent Bar Review academic article, Doctors Differ, 2018 23(6) 165-168 Rosemary Mallon B.L, considered the test to be followed in the case of medical capacity. She referenced the Supreme Court Case in Fitzgerald and Dept of Defence [2003] IESC 57, unreported and more recently Dublin Bus V Clare Mc Kevitt in the High Court I quote :
- I appreciate that the Respondent understood that they had a certain autonomy in decision making outside the parameters of the Department, however, it was bound to follow the Circulars. The language of the circulars left me in no doubt that both parties fell on their lack of adherence to circulars in this case.
- For my part, I detected major procedural omissions on both sides of this case. The grievance notified by the complainant should not have been still open for her in June 2018. She ought to action her dissatisfaction at not receiving an outcome long before this. She ought to have complied with the simple requests for Garda Vetting. I cannot find the Respondent wholly liable here.
- At face value, the letter of dismissal dated prefaced by the June 28 seems to answer Yes to these questions. However, on further probing I found some variances.
- A.The employee should be clearly put on notice that the decision is being contemplated and that the decision may have an effect of ending the employment relationship. It would always be preferable that this notification be in writing from the perspective of being able to prove same in any future proceedings.
- B.The employee should be given the opportunity to put forward any medical evidence or opinion that they may wish. This should be considered and weighed carefully by the deciding doctor. The doctor should, if they feel it prudent, make contact with the authors of any medical report that appears to contradict the views of the deciding doctor.
- C.The employee should be examined by the doctor who will make the ultimate finding at least once. It would seem advisable (based on the case law) that there should be more than one assessment, particularly if the employee provides contradictory medical opinion/reports.
In the instant case, both parties relied on the Occupational Health Repot dated 5 February 2018, which delineated, a recommendation that the complainant be reviewed in 6 weeks. This was the last word from Occupational Health outside an email to Mr A dated May 16, 2018 which confirmed three missed appointments and prompted the School to notify the Government Department of the nonattendance and “confirm how the Department wish to proceed with the case “This email also confirmed that no report was available.
The respondent sought advice from a School advisory body and pressed on with the June 12 letter and eventual meeting on June 28 which seemed to have completely fractured relations between the parties but did not engage in a thorough and up to date analysis of medical reports and medical recommendations. Ms Mallon references in her article that the Medical voice in the strongest in a decision taken to dismiss on incapacity grounds.
The Medical voice was secondary to the respondent voice in this regard. Again, I do not hold the Respondent wholly liable for this. the Complainant was aware or ought to have been aware that her job was at risk from 12 June. The letter of 20 June held enormous currency for her, yet she did not lead with it. I have inferred from this that she had yet to forgive the Respondent for the historical depletion in hours from 2016 and she was not sufficiently focussed on her job due to significant personal issues. I understand those.
While I accept that the complainant held the illuminating letter from her own doctor, I accept that she did not present it at any time during this period. The letter was titled “To whom it concerns” and was not directed at the Respondent. I found this to be an omission of mammoth proportions given that it placed her in a good light and reflected her fitness to engage with Occupational Health. I believe that if the Respondent had seen that letter, events may have evolved very differently indeed. The Complainant told me that she did not get the chance to speak during the 28 June meeting. She ought to have raised her contemporaneous medical report.
Taking everything into consideration, the facts of this case point to the decision taken to dismiss the complainant on 5 July 2018 as being unfair.
The Respondent did not pay enough attention to the scope of the named Circulars and did not consider measures short of dismissal in any meaningful way. They did not invite an appeal of the decision. The Medical reports available to the Board at the time of dismissal did not reflect that the complainant was unable to return to work at that stage or any time in the future, and crucially they did not recommend Dismissal on incapacity grounds. O Brien distinguished. I note that provision for retirement on grounds of ill health was not explored in this case.
The Complainant must be viewed as playing a significant role in the turn of events. While I appreciate that she was on extended sick leave, she did not comply with the Respondent reasonable requests to fulfil the terms of sick pay. The June medical report ought to have opened doors for her in an assisted return to work. She ought to have appealed her dismissal, as provided for in the Circular. I also believe she should have forgiven the Respondent for her perceived exclusion from her full hours during September 2016 to February 2017.
I have found that the Dismissal was both Substantively and procedurally unfair.
Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found the complaint to be well founded. I have given some thought to both parties’ submissions on remedy. I have found that the circumstances of the case reflect an element of misunderstanding on both sides. I have decided that the most just and equitable remedy in this case is Re-engagement to the position of 32 hr SNA. I make this decision in the hope that both parties can come together on an agreed working plan to restore the complainant to a job she loved . I am conscious that the complainant was subsisting on illness benefit at the time of hearing. I order Re-engagement to take place on 32-hour week, subject to Medical approval, from May 28, 2019 or the earliest date thereafter. The Complainant should be issued with a contract of employment.
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Dated: 29 April 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal. Incapability. |