ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020152
| Complainant | Respondent |
Anonymised Parties | Sales Assistant | Store |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00026650-001 | 28/02/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00026650-002 | 28/02/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00026650-003 | 28/02/2019 |
Date of Adjudication Hearing: 11/06/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act 1991, and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 -2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The Complainant worked for the Respondent for 5 years and 9 months. She contends that she was owed an amount for payment in lieu of annual leave (Payment of Wages Act 1991), that she was unfairly dismissed due to ill health (Unfair Dismissals Act 1977) and that, having almost 6 years service she should have received a redundancy payment. In relation to her claim of unfair dismissal, the Complainant stated that she was out sick following her maternity leave, that in June 2018 she was called to a meeting, that the company insisted on holding meetings in her house, that she was not allowing access to her medical records by non qualified persons and that she believes this was the main reason for her dismissal. |
Summary of Respondent’s Case:
CA-00026650-001 – The Respondent undertook to review if any payment was due to the Complainant in relation to accrued annual leave. Following the hearing, the Respondent advised that the sum of €791.19 was outstanding and undertook to pay the Complainant that sum.
CA-00026650-002 – The Complainant was on long term sick leave from February 2018, following a period of maternity leave. A number of absence review meetings were held with her from June 2018 to January 2019. At this last meeting, the Complainant was accompanied by her mother. The Complainant had refused to sign medical consent forms on the advice of her doctor. However, this was not the reason she was dismissed, contrary to her belief that it was the reason for dismissal. Following the meeting on 25 January 2019 the Respondent wrote to the Complainant advising her that as she was not in a position to return to work for the foreseeable future and given the Complainant’s absence with little prospect of return, the Respondent had no choice but to terminate the Complainant’s employment on grounds of incapacity. She was given the right to appeal, but did not exercise this right. It is argued that the Respondent kept in regular contact with the Complainant and informed her that she was at risk of dismissal, and this is in keeping with the test applied in Bolger v Showerings (Ireland) Limited [1990] ELR 184. If an employee is dismissed by reason of that employee’s incapability, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incapable. In that case Judge Lardner found that for the employer to show that the dismissal was fair, he must show that
(1) It was the ill-health which was the reason for his dismissal;
(2) that this was the substantial reason;
(3) that the employee received fair notice that the question of his dismissal for incapacity was being considered, and;
(4) that the employee was afforded an opportunity of being heard.
It is argued that in this instant case all elements of the test applied and the Complainant, being unfit for work with no prospect of returning to work, was not unfairly dismissed.
CA-00026650-003 – The Complainant, not having been made redundant is not entitled to a redundancy payment.
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Findings and Conclusions:
CA-00026650-001 – The Respondent undertook to review if any payment was due to the Complainant in relation to accrued annual leave. Following the hearing, the Respondent advised that the sum of €791.19 was outstanding and undertook to pay the Complainant that sum. I therefore find the Complainant’s complaint to be well founded. If not already implemented by the Respondent I require them to pay to the Complainant the sum of €791.19 within six weeks of the date of this decision. CA-00026650-002 – Section 6 (4) of the Unfair Dismissals Act 1977 provides: “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”. I note there were a number of absence review meetings held with the Complainant from June 2018 to January 2019. I note the fact that at no time was there any hope of a return to work expressed. In this respect, it is normal for an employer to seek consent for medical records and I do not find that the refusal of the Complainant to release same led to her dismissal. I find she was dismissed solely on incapacity to perform the work. I note the tests in Bolger v Showerings (Ireland) Limited [1990] ELR 184 did apply to this case, in that; it was the ill-health which was the reason for the dismissal, that this was the substantial reason, that the employee received fair notice that the question of her dismissal for incapacity was being considered, and that she was afforded an opportunity of being heard. I find therefore that the Complainant was not unfairly dismissed. CA-00026650-003 – Based on the evidence the Complainant was not made redundant and is not entitled to a redundancy payment.
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Decision:
CA-00026650-001 – I have decided that this complaint is well founded and if not already implemented, I require the Respondent to pay to the Complainant the sum of €791.19 within six weeks of the date of this decision.
CA-00026650-002 – I have decided that the Complainant was not unfairly dismissed and her complaint is not well founded.
CA-00026650-003 – I have decided that the Complainant was not made redundant and is not entitled to a redundancy payment.
Dated: 06.08.2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham