Complainant

Respondent

Anonymised Parties

A Worker

Seamstress Service provider

Representatives

The claimant represented self at the hearings

Peninsula Group Limited

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-00011980-001

19/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011980-002

19/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011980-003

19/06/2017

The claimant was employed as a Seamstress with the respondent from the 24th.August 2011 to the 1st.May 2017. She complained that the respondent was in breach of the Payment of Wages Act 1991 for failing to pay her notice on termination of her employment , in breach of the Organisation of Working Time Act 1997 for failing to pay her her public holiday entitlements and in breach of the Unfair Dismissals Acts 1977-2015 for wrongly   firing her from work.It was submitted that the claimant worked for 6 years without receiving the Company Handbook.It was submitted that disciplinary action was initiated against the claimant on the 10th.Augst 2016 when the claimant was invited to s disciplinary hearing by way of a letter written in the English language.The claimant chronicled the ensuing exchanges between herself and the company representative Ms/EN over the next 6 months.The claimant wrote to the respondent on the 21st.Sept 2016 indicating that she was “starting to feel tormented “ by the respondent and was under additional stress and sought clarification in relation to the respondents request for access to her medical records.The claimant’s GP wrote to the respondent on the 28th.Sept. confirming the cliamant’s medical regime , that she was on anti-depressants and that the numerous contacts from work were making her symptoms worse.

On the 19th.October 2016 , a grievance letter was sent by the claimant to the respondent.The respondent recruits a mediator – the claimant was not happy that the mediator was impartial and alternative mediator was appointed .The mediation did not realise a settlement .The claimant set out a chronology of the ensuing exchanges concerning a medical assessment of the claimant - an error occurred with respect to the claimant having prior notice of the contents of the medical report.

A telephone consultation with a UK specialist was proposed by the respondent – the claimant had no faith in such an assessment and was prepared to go for an independent medical conducted in person by a medical doctor.In the meantime , the respondent organised a meeting to ascertain the claimant’s capacity and her return to work – the claimant sought to have the date for the meeting changed .The claimant was advised that she could make a written submission if she did not attend the meeting.

The claimant’s employment was terminated on the 3rd.April 2017 and the claimant appealed the dismissal. - the appeal was not upheld.

On the 3rd.August 2018, the following further submission was received from the claimant

1. The Claimant began sick leave from 12 August 2016.

It should be noted that from that day the Claimant was attacked by letters, e-mails and SMS by the respondent even when on 15.08.2016 the Claimant informed: ''the nature of my illness is stress''.

2. Letter from 16/09/2016, the Respondent demands consent to a medical report. Called for the meeting on 22 September 2016 at 18:30 at The Glasshouse Hotel.

The applicant did not attend the meeting due to poor health. The Claimant answered ''Because I would not be comfortable, and the meeting would add stress to me and I would like to come back to work as soon as possible.''

The complainant indicated that felt harassed by the Respondent. Page 44-46

3.On 4 October 2016. The Respondent received a report from the doctor.

Confirming that the applicant suffers from stress caused by constant problems at work. The doctor noted that the applicant noted that too much correspondence from the defendant deepens her illness.

He advised her to engage with work to see if there is a way to resolve her problems. Page 52,53

4.Letter dated 11/10/2016 The letter '' Request for communication '' is given to the Claimant only in English language. Page 54

The Claimant asked the Respondent to translate the letter and the ''Grievance Procedure'' procedure several times.

Without result until on 16 October at 7,49pm The Claimant received a translation with the procedure.

Until 16/10/2016, the Respondent to the Claimant only corresponds in English language, which makes the Claimant a huge difficult due to the lack of knowledge of the English language.

5. On 19 October 2016, the Claimant shall submit a complaint in Polish language (not in English language) to the Respondent. Page 74

6.In response, the Respondent organized a meeting with Ms C.O.N.

It should be noted here that in a deliberate and conscious manner, the Respondent exposed the Claimant to additional stress. The Respondent replaced the mediator with the Respondent close friend.

7.By e-mail of 1/11/2016, the Claimant asked to send the English and Polish version of the mobing prevention procedure because the Claimant does not know this procedure.

8.On 1/11/2016 at 21:41. The Claimant received the procedure only in English language.

A double request to translate the procedure into Polish language has been ignored. Page 82.90

9.On 9 November at 4:28 PM, less than 24 hours before the meeting with Ms.C.O.N., the Respondent informed:

''Your files will be forward to Ms.C.O.N.Please confirm prior to the meeting who will accompany you as your representative.''

10.The mediation meeting with M.C.O.N.was organized on 10 November 2016 by the Respondent. The Claimant did not request a postponement of the meeting.

The meeting takes place in the corridor at The Glass House Hotel. During the meeting, complaints of the Claimant are not discussed. Please see the minutes of the meeting in the attachment.

11. By e-mail of 12/11 / 2016, the Claimant asked Ms .C.O.N, to document the qualification of the mediator and to confirm the impartiality. The Claimant did not receive confirmation from Ms.C.O.N..

At this time, Ms.C.O.N. corresponds with the Respondent. Page 64 of the Respondent's book.

It should be noted that the Respondent did not provide an adequate impartial and thorough investigation.

12. On 15 November, the Claimant refused further meetings with Ms.C.O.N..Page 96

13.In the letter of 22/11/2016, the Respondent called for mediation with Ms S.W. Page 99

14. The first preliminary meeting with Mrs. S. W takes took place on December 12, 2016 at the corridors at The Glass House Hotel. Please see the attachment.

15. On the second day of Christmas, the Respondent accused the Claimant of not cooperating with a mediator and threatens to terminate the employment contract. The Claimant replied that she had not received any information from the mediator. Page 106, 107, 108

16. On 18 January 2017, the second mediation meeting with MsW takes took place. Respondent did not refer to the Claimant's allegations and problems, no agreement was reached. (If the Respondent has an agreement with the Claimant's signature please show)

After the meeting, the Respondent interrupted the mediation. RespondCorrespondence to Mediator. Please See page 47. Respondent's book.

17.On 19 January at 01: 02 The Claimant received by email receives: work duties and daily activities, the company Handbook - which the Claimant should receive at the time of employment, (6 years ago). The Respondent used mediation to impose unfavorable changes to the contract.

18. On 25 January 2017 in accordance with the Contract (point 16 page 6) The Claimant asked the

Respondent (P.Wójcik) to respond to the allegations and problems of 19 November 2016. Since the Respondent still did not refer to the allegations. Page123

The letter was dismissed.

19. By e-mail of 30 January 2017, the Respondent requested a report from GP. Page 129

20. In the e-mail dated 2 February 2017, the Respondent demands permission to visit an independent doctor. The Claimant received a Form Occupational Health Consent +Employee Frequently Asked Questions. Page 130-134

21.In the e-mail of 6 February, the Claimant informed the defendant about an urgent trip to Poland. Page 139

It should be noted that this correspondence states that: ..''.for correspondence I will reply after returning to Ireland''

Nevertheless, at that time, the Respondent sent a lot of messages to the Claimant claiming a copy of tickets flight booking.

22. In the e-mail dated 10 February 2017, the Respondent urged the signing of the consent form for an appointment with an independent doctor. It required a copy of airline tickets and called for ''capability meeting''. The meeting did not take place. Page 141-142

23. In the email of 10 February 2017, the Claimant asked for confirmation that the visit to an independent doctor will take place in Ireland and the Claimant asked to send documents in force in Ireland. Page 148

13 February the respondent confirmed: '' the visit will take place in Ireland, references to the United Kingdom are only due to the fact that the company originally comes from UK''. Page 151

24.On the 14 February, the Claimant agreed to visit an independent doctor.

For the third time the Claimant asks the Respondent to confirm that the Respondent will cover the cost of the GP report.

In the reserve on 20 February 2017, the Respondent received a report on the Claimant's state of health. The doctor confirmed that the defendant is being treated for fear, stress and depression, and she is unable to resume work due to persistent symptoms.

The doctor did not say that the disability is likely to last for a long time and that there is no prospect for the Claimant's future return to work.

25.By letter of 20 February, the Respondent again asked the owner of the company Ms. W) for help because she feels harassed by the respondent Ms.E.N.. page 159.

The letter was ignored.

26.On 23 February, the Respondent confirmed: ''the date, time and place of the medical visit is being implemented'. page 164

27.On 10 March 2017 S.H of the Occupational Health Administration Team Leader of the UK, informed the claimant that he had mistaken the forms. The Claimant replied that according to the instructions the Claimant received from the Respondent,the Claimant has the right to see the report before sending it to the Respondent - employer.The Claimant

confirmed that was waiting for information about the date, time and place of the appointment with an independent doctor. Page 170

It should be emphasized that the messages from S.H. were only in English language, which was a big problem for the Claimant.

28. On 10 March 2017, the Respondent did not correspond with the Claimant.

29. On 16 March, the Respondent called for a meeting. The meeting was scheduled for 21March. The meeting did not take place. Page 172

30. In the letter of 20 March The applicant asked to change the place to Sligo Town, because it is a distance of 10 km and the Claimant cannot get there due to lack of transport. The meeting did not take place. Page 180,

31. On March 20, 2017, the Claimant corresponded with Ms.E.N. (not with Ms. W) in order to explain the disagreement of the Form of consent with the explanation. The Claimant confirmed the consent to visit an independent doctor. pp. 177, 178, 179, 180

On the same day at 8:12 pm, the Claimant asked for the third time to send the Form and explanation in force in Ireland.

The request was ignored.

32. In the e-mail of 21 March, the Respondent called for a telephone consultation with a UK specialist on 29 March. Page 182

33. In the e-mail of 23 March, the claimant did not agree to a telephone consultation because the Claimant thinks that such examination cannot be credible. Is contrary to the contract. (Point 9.3)

The Claimant asked for a doctor's appointment in the office. The Claimant signed and completed the second forme in accordance with the instructions the Claimant received from the Respondent on 2 February. Page 184-186

In the explanation it says:

''If you would like to see the occupational health report- either at the same time it is sent to your employer, or a couple of working days beforehand- please let us know in the consent form options.''

At this point, it should be noted that:

The Respondent from 2 February assured the Claimant about a visit to a doctor in an office in Ireland. Pages 151, 164,

34.In a letter of 24 March 2017, the Respondent called for a Capability meeting on 29 March. Page 188

35.On 27 March, the Claimant asks to postpone the meeting. The Claimant thinks that the visit to an independent doctor was organized in a way not honest and The Claimant asked Ms. W- the owner of the company for help.

It should be noted that the correspondence states:

"Despite my assurances that I am ready to visit a doctor in the office in order to undergo a professional assessment of the current state of health, the process was closed.''

The letter was ignored.

36. A letter dated 29 March (received by the Claimant on March 31, 2017-Friday) the Respondent requested a letter with ''any additional information''. Deadline for 1/04/2017 (Saturday) by 4pm. '' The

letter is not clear to the Claimant.

37. By letter from 03/04/2017, the Respondent was informed the Claimant: the employment was terminated with immediate effect with the payment of a cash equivalent for 4 weeks. The equivalent was not paid. Page 196

It should be noted that the letter was not include the date on which employment was terminated.

38. On 07.04 / 2017, the Claimant appealed against the decision. Page 199

39. Meeting with the appeals representative Mr.J.McN was held on 16 May.

40. At this point, attention should be paid to the time frame:

According to the contract signed between the Respondent and the Claimant (page11), the appeal should be examined by Ms.W within 5 work days. In the case of the Claimant, it lasted almost two months.

41. On 07.06.2017 After the intervention of the Claimant in the Revenue, the Respondent finally sent P45 and informed the Claimant:

''Letter issued by me dated 03/04/2017 is clearly stating that your employment was terminated with immediate effect which means that your employment was employment with Alteration Centre is 01/05/2017''

The Claimant stated that all the processes of ''facilitating the Claimant's return to work'' organized by the Respondent were not fair and transparent and were of a psychological harassment nature.

It should also be mentioned that during the period of the Claimant's illness, the Claimant sent 10 letters asking for help to the owner of the Company. The Claimant did not receive an answer, and the Respondent did not introduce any reasonable corrections in the area of mental health of the Claimant.

It is unconditionally denied that the Claimant and her colleague represented 100% of the company.

Four people worked in the company and during the illness of the Claimant a new employee was hired, as the Respondent says herself:

''An additional employee is employed to relieve the stress of sudden services during busy period''.

In her direct evidence the claimant asserted that disciplinary action was initiated against her the day after she commenced sick leave on the 10th.August 2016.She did not know why 3 medical certs submitted by her were not received by the respondent.The claimant stated that she was unable to attend the medical capability meeting on the 29th.March 2017 as she was still very ill and the respondent proceeded in her absence

The claimant stated that the investigator/mediator nominated by the respondent had produced no evidence to demonstrate that she was qualified in this type of work.When Ms.SW became involved the focus of the meeting was about changes the respondent was seeking.

The claimant disputed MR.McNs account of the appeal hearing and stated that he was unwilling to take on board their arguments.

The claimant asserted that she and her colleague repeatedly sought the intervention of the owner of the company - the mother of Ms.EN – but their requests were ignored.

The respondent submitted as follows

Preliminary point

1) The claimant has lodged a claim under the Unfair Dismissals Act, 1977 she has failed to detail

her claim in any meaningful way, the respondent is unable to defend the claim.

2) The claimant has lodged further claims under claims under the Organisation of Working

Time Act and Payment of Wages Act alleging she did not received Notice Pay and did not

receive Public Holiday entitlements. She has failed to specific the amount she claims is

owing. The respondent is unable to properly defend these claims.

Factual background

3) The claimant commenced employment with the respondent on 24th August 2011, she

received a Statement of Main Terms and Conditions of Employment and signed same on 24th

August 2011, in accordance with same the claimant was entitled to 20 days holidays per year

on a pro rata basis. (see page xx)

4) By letter of 9th August 2016 the claimant was invited to a disciplinary hearing on 17th August

2016 (see page xx)

5) The claimant commenced a period of sick leave on 12th August 2016, she did not return to

work.

6) By letter of 13th August the respondent invited the claimant to an informal welfare meeting,

she failed to attend. The claimant replied stating that she did feel able at this time to meet,

as it may aggravate her illness.

7) By letter of 17th August the respondent offered the claimant the Employee Assistance

programme.

8) By letter of 31st August 2016 the respondent wrote inviting the claimant to an informal

meeting.

9) The meeting did not go ahead because the claimant replied stating that she was unable to

take part in the meeting due to her health condition. (see page xx)

Medical capability

10) By letter of 16th September 2016 the respondent wrote inviting the claimant to a meeting on

22nd September to ‘properly assess your fitness for and likely return to work’, she was

requested to submit evidence in advance. (see page xx)

11) No evidence was forthcoming and the claimant respondent that she cannot attend the

meeting ‘because I would not feel comfortable and that would cause me additional stress’.

12) She also raised a number of questions regarding access to her medical reports (see page xx)

13) By e-mail of 27th September 2016 the respondent requested access to the claimant’s medical

records, they advised that this was necessary to make the ‘appropriate decisions for the

business’ (see page xx)

Grievance procedure

14) On 7th October 2016 the respondent received a letter from the claimant’s GP dated 28th

September stating the claimant was suffering from work related stress caused by

management issues and noted ‘I have advised her to engage in a discussion with work to see

if she could resolve her issues’. (see page 102)

15) In light of this the respondent wrote offering the claimant the grievance procedure. (see

letter dated 11th October 2016 at page 91)

16) By e-mail of 13th October 2016 the respondent invited the claimant to a meeting, the

claimant respondent stating that she would meet with Ms.W the owner of the company and not the respondent’s representative Ms.E.N.

on 12th October 2016. The respondent advised that due to health issues Ms. We could

not attend the meeting. The respondent informed claimant that MsE.N.is acting

CEO and CFO of the company. (see attached email and document) The respondent advised

that they would engage a third party to hear the meeting. To which the claimant stated that

she would not attend. (see page 89 and 88 and 86 and 83)

17) By letter of 19th October the claimant made an allegation of bullying (see page 70)

18) In response the claimant was invited to avail of the formal procedures and Ms. C.O.N was

engaged to hear the meeting. (see page 69)

19) The meeting was held on 10th November 2016. However, the claimant raised questions

regarding Ms.C.O.N.s impartiality. Notwithstanding the respondent’s position that

Ms.C.O.N. was impartial they agreed to engage Ms.SW, accredited Mediator where was

agreed between claimant, mediator and respondent that mediation was appropriate. (see

page 67)

20) The claimant was invited to a meeting with Ms. W on 7th December 2016, at the request

of the claimant the meeting was adjourned until 12th December 2016 (see page 61 and 59)

21) Through January 2017 the parties corresponded regarding the mediation process and

matters finalised in or about 20th January 2017. The Claimant failed to engage with the

mediation and it was not successful (see page 50). As part of that agreement the claimant

was to revert with questions regarding new improved systems at work. She failed to revert.

(see page 46)

Medical capability continued

22) By e-mail of 2nd February 2017 (see email attached) the respondent sought consent to

obtain an occupational doctor’s report to determine the claimant’s likely return to work,

they advised that they would have to proceed without the benefit of same and invited to a

medical capability meeting. (see page 44)

23) On 10th February the claimant confirmed her consent to attend the Occupational Health

Assessment. (see page 45). However she later raised a number of queries about the process

and was asked to confirm her consent by 14th February 2017, which she did. Unfortunately, a

consent form for the UK had been sent to the claimant by Health Assured and she was

required to sign consent form for the Republic of Ireland. A Republic of Ireland form was

sent to the claimant and she failed to response for some time.

24) By letter of 16th March 2017 the respondent advised that despite numerous requests the

claimant had failed to offer a valid consent to an occupational health assessment and

consequently, they had to proceed without the benefit of same. The claimant was invited to

a medical capability meeting to be held on 21st March 2017 to discuss her return to work,

she was invited to submit evidence in advance of the meeting. No evidence was received

and the meeting was postponed to allow a further opportunity to obtain consent for an

occupational health assessment. (see page 19).

25) Eventually on 23rd March the claimant signed the correct Occupational Health Assessment

form, however she annotated the form stating that she wished to see the report before the

respondent. This rendered the consent invalid. Health Assured and respondent explained

the issue to the claimant via telephone and e-mail. (see page 16)

26) On the 21st of March claimant was invited to engage in Occupational Health Assessment to

take place via phone conference on 29th of March. (see page 17). This meant that the initial

UK consent form could be used. The claimant requested to be seen by occupational doctor

in clinic in Sligo which Health Assure had no access to, she was unwilling to travel outside

Sligo. Assessment via Phone conference would accommodate the claimant’s request to

receive the report before respondent and her restriction on travel. On 23rd March the

claimant advised that she would not consent to the telephone Assessment. (see page 13).

27) By letter of 24th March 2017 the claimant was invited to a medical capability meeting to be

held on 29th March 2016, she was advised that due to her failure to consent to an

occupation a health assessment the meeting would have to proceed without the benefit of

such a report.(see page 13)

28) The claimant advised that she would not attend the meeting unless the company owner Ms. W held the

meeting. The respondent advised again that Ms. W no longer took an active role in the

business and the meeting would go ahead as planned. The claimant was invited to make

written submissions which she failed to do. (see pages 14 and 13).

29) The claimant failed to attend the meeting, on 29th March 2017 the respondent invited the

claimant to make written submissions which would be taken into consideration, she failed to

make submissions (see page 12).

30) A decision was made at the meeting that there was no prospect of the claimant returning to

work in the foreseeable future and her employment was terminated on the grounds of ill

health. In reaching the decision the respondent took into consideration inter alia whether

there was any reasonable adjustments that could be made to the claimant’s current post to

accommodate her, however without any input from the claimant or her GP the respondent

was unable to reach any positive conclusions. (see letter dated 3rd March 2017 at page 11).

31) The claimant was offered 4 weeks’ pay in lieu of notice and was offered the right to appeal.

32) The claimant appealed the decision.

33) (LTS) were engaged to hear the appeal, by letter of 4th May 2017 LTS

wrote inviting the claimant to an appeal hearing on 16th May 2017, the said letter requested

the claimant to submit submissions and or other evidence prior to the hearing. Same was

not received.

34) The appeal was by way of a re hearing and was held on 16th May 2017, at the appeal no new

evidence was forth coming and the material facts were not challenged. (see minutes at page

9)

35) The decision to terminate employment was upheld (see letter at page 3).

Law

36) Dismissal is deemed not to be unfair under s 6 (4) of the Unfair Dismissal Act, 1977 where it

results wholly or mainly from an employee’s capability to perform work ‘of the kind which he

was employed by the employer to do.’

37) The recent Labour Court Decision: Dunnes Stores Limited –v- Elaine O’Brien (UDD1714) it

was held that the dismissal was not unfair. The Labour Court outlined the relevant test for

medical capability dismissals in UD cases as follows:

38) “In Bolger v Showerings Limited [1990] ELR 184 Lardner J said that in order to demonstrate

that a dismissal on grounds of capability is fair [1] the employer must show that ill-health

was the substantial reason for the dismissal, [2] that the employee got fair notice that

dismissal for incapacity was being considered and [3] that the employee was afforded an

opportunity to be heard.”

39) The Labour Court noted the significant number of review meetings that were held and that it

was evident that the employee was aware that dismissal for incapability was being

considered.

40) The Labour Court reiterated the “band of reasonableness” test, namely “Would a reasonable

employer in those circumstances dismiss?”

41) Ultimately, the LC concluded that the dismissal was fair as “the Respondent was of the view

that there were substantial grounds justifying the dismissal of the Complainant in

circumstances where there was no prospect of her returning to work in the foreseeable

future due to her continuing illness.”

42) The LC noted that the employee was given every opportunity to be heard. Furthermore, it

was noted that “At no point was the Complainant in a position to give any indication of a

return to work date.”

43) The respondent relies on the case of An Employee v A Food Services Company DEC-E2016-

020 a decision from the Equality Tribunal where the Equality Officer place emphasis on the

fact that claimant failed to engage with the respondent’s efforts to establish what

adjustments could be made to accommodate the claimant’s disability.

44) In circumstances where the claimant failed to engage with the respondent’s efforts to

establish what, if any accommodation could be made the dismissal was not unfair.

Law

45) Dismissal is deemed not to be unfair under s 6 (4) of the Unfair Dismissal Act, 1977 where it

results wholly or mainly from an employee’s capability to perform work ‘of the kind which he

was employed by the employer to do.’

46) The recent Labour Court Decision: Dunnes Stores Limited –v- Elaine O’Brien (UDD1714) it

was held that the dismissal was not unfair. The Labour Court outlined the relevant test for

medical capability dismissals in UD cases as follows:

47) “In Bolger v Showerings Limited [1990] ELR 184 Lardner J said that in order to demonstrate

that a dismissal on grounds of capability is fair [1] the employer must show that ill-health

was the substantial reason for the dismissal, [2] that the employee got fair notice that

dismissal for incapacity was being considered and [3] that the employee was afforded an

opportunity to be heard.”

48) The Labour Court noted the significant number of review meetings that were held and that it

was evident that the employee was aware that dismissal for incapability was being

considered.

49) The Labour Court reiterated the “band of reasonableness” test, namely “Would a reasonable

employer in those circumstances dismiss?”

50) Ultimately, the LC concluded that the dismissal was fair as “the Respondent was of the view

that there were substantial grounds justifying the dismissal of the Complainant in

circumstances where there was no prospect of her returning to work in the foreseeable

future due to her continuing illness.”

51) The LC noted that the employee was given every opportunity to be heard. Furthermore, it

was noted that “At no point was the Complainant in a position to give any indication of a

return to work date.”

52) The respondent relies on the case of An Employee v A Food Services Company DEC-E2016-

020 a decision from the Equality Tribunal where the Equality Officer place emphasis on the

fact that claimant failed to engage with the respondent’s efforts to establish what

adjustments could be made to accommodate the claimant’s disability.

53) In circumstances where the claimant failed to engage with the respondent’s efforts to

establish what, if any accommodation could be made the dismissal was not unfair.

Claim under the Organisation of Working Time Act

54) The claim was lodged 19th June 2017, the reference period is 20th December 2016-19th June

2017.

55) The third schedule of the Organisation of Working Time Act, 1997 provides the exceptions to

an employee’s entitlement to be paid for Public Holidays.:

THIRD SCHEDULE

Entitlement under section

21 in respect of Public

Holidays: Exceptions

Section 21 (5).

Each of the following are the cases mentioned in section 21 (5) of

absence by the employee concerned from work immediately before the

relevant public holiday:

1. such an absence, in excess of 52 consecutive weeks, by reason of an

injury sustained by the employee in an occupational accident (within the

meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act,

1993),

2. such an absence, in excess of 26 consecutive weeks, by reason of an

injury sustained by the employee in any accident (not being an accident

referred to in paragraph 1) or by reason of any disease from which the

employee suffers or suffered,

Claim under Payment of Wages Act, 1991

56) The claimant has lodged a claim for notice pay, whilst her termination letter state that she is

entitled to 4 weeks’ notice pay the claimant was certified as unfit to work during that period.

The claimant in not entitled to sick pay under her contracted of employment therefore no

notice pay was paid.

A further submission was furnished by the respondent following the second hearing and is summarised below:

It was submitted that the claimant commenced a prolonged period of sick leave from the 10th.August 2016 following receipt of the invitation to attend a disciplinary hearing.It was contended that the claimant and her colleague represented 100%of the workforce and their absence had devastating consequences for the business.It was submitted that the respondent was acting reasonably in proactively pursuing welfare meetings with the claimant.It was submitted that the appointment of third parties placed an enormous financial and emotional burden on the respondent.It was contended that the claimant decided to refrain from abiding by the second mediation process and wanted yet another 3rd.paty to be appointed to investigate her grievances.

With respect to the medical consent documentation, it was submitted that the claimant’s amendment “ I would like to see a copy of the occupational health report before it is sent to my employer “invalidated the form and the assessment could not procced as a result.

Ms.EN gave evidence on behalf of the respondent – she stated that she had been trying to effect change in the workplace over a period of 2 years and that her efforts met with a great deal of division from the claimants – she had to nitiate disciplinary action when both claimant’s went off sick as they constituted 100% of her workforce.She stated that after the initial meeting , she decided mediation was the way forward – proposals were sent to the claimant’s but they refused to engage so there was no point in going forward.She stated the sick certs kept coming , that consent for the medical assessment was not forthcoming and she had to go forward with what she had.

Mr.McN gave evidence bon ehalf of the respondent and stated that the only documents the claimant brought to the appeal hearing were the UK and Republic of Ireland consent forms for the disclosure of the medical assessment. He stated that both claimants understood there was an initial error in relation to the matter of consent and this necessitated re issuing consent forms relevant to Irish jurisdiction. He stated   the claimants declined assessments by telephone and the respondent need a decision to assess capacity to return to work He asserted that the claimants knew that they had invalidated the consent forms by inserting their own amendments.