Complainant

Respondent

Anonymised Parties

A Worker

Dress Making Service

Representatives

Self

Solicitor

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-00011982-001

19/06/2017

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

CA-00011982-002

19/06/2017

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

CA-00011982-003

19/06/2017

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

CA-00011982-004

19/06/2017

The claimant was employed as a seamstress with the respondent from the 7th.June 2010 to the 1st.May 2017.She submitted the respondent was in breach of the Unfair Dismissals Acts 1077-2015 for unfairly dismissing her , the Organisation of Working time Act 1997 for failing to pay her for outstanding annual leave and public holidays and the Payment of Wages Act 1991 for failing to pay her notice on termination of her employment.

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 had informed the respondent on numerous occasions that “because of her general malaise and bad health condition she could not participate in meetings. The claimant chronicled the ensuing exchanges between herself and the company representative Ms/EN over the next 6 months. It was submitted that the claimant’s GP confirmed on the 4th.Oct.2016 that the claimant presented with symptoms of anxiety, stress and depression caused by problems at work and that the letters from work were contributing to her worsening symptoms. She was also suffering from degenerative neck pain and carpal tunnel syndrome “made worse by overworking”.

The claimant wrote to the respondent on the 19th.Oct. 2016 setting out her grievances complaints of bullying behaviour and submitted that the respondent failed to respond to same. She submitted in her letter of complaint that “If my manager is able to change her behaviour and treat me with respect, I can think of returning to work as soon as possible as long as my health condition permits”.

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 submitted that the mediation was halted by the respondent .

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 – 29th.March 2017 -to ascertain the claimant’s capacity and her return to work – the claimant sought to have the date for the meeting changed as she remained off sick – she submitted the respondent ignored this request. .

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

It was submitted that the respondent never kept a record of working time and the claimant was owed holidays for the 2/3rd.Aug 2016 and 5 Bank Holidays. It was submitted that the respondent “demanded from the claimant 1-week sick leave of which the claimant was exposed to additional expense”.

In a later submission the claimant contended as follows:

1.    This statement should be read in conjunction with the Claimant’s previous statement.

2.    The Claimant repeatedly reported to the Respondent that her attitude to the Claimant was incorrect and had the characteristics of mobbing. It was always downplayed, ignored.

Factual background

1.    The Claimant doesn’t know English. Written correspondence was carried out through third parties. The Claimant paid the costs of the translations. The Claimant repeatedly asked the Respondent to write to the Claimant in Polish. For the Claimant it was a process of delay and obstruction. The defender ignore request.

2.    August 9th, 2016 under severe stress caused by the situation at work, unable to control the shaking of the body and the hands the Claimant went to the doctor. She received a four-week sick leave. She notified the Respondent on the same day by SMS at 19.56.

3.    Even though the doctor issued to the Claimant four-week sick leave, the Respondent demanded the weekly sick leaves from the Claimant, which was a heavy financial burden for the Claimant. It should be noted that Respondent knew perfectly well that the Claimant was receiving money only from the sickness benefit.

4.    On the night of August 10th, the Respondent sent an e-mail to the Claimant in English, incomprehensible to the Claimant, calling for a disciplinary meeting.

5.    The lack of Claimant’s English language skills was often used by the Respondent in the correspondence.

6.    The work , was carried out not only by the Claimant, but also by the owner and by the colleague.The employer’s daughter was also employed. The Claimant had no influence on the life and health of the third parties.

7.    The Respondent was tormenting the Claimant, who was on the sick leave, with numerous correspondence. The Claimant informed the Respondent that she did not feel able to meet with the Respondent due to stress and depressed. She reported that she would meet her at a later date when she would feel better. These messages were ignored.

8.    Correspondence by the letter and e-mails from the Respondent caused the increased stress for the Claimant and anxiety before opening e-mails. In the medical report from October 4th, the doctor wrote that the letters from the Respondent contributed to the deterioration of the Respondent's symptoms.

9.    At the request of the Respondent, the Claimant sent the complaint in writing on 19th October. The correspondence states that: "The employer's conduct towards me was humiliating, she undermined my competence, significantly reduced my self-esteem, which led me to my illness. If the employer is able to change her behavior towards me and treat me with respect, I am able to think about returning to the work as soon as possible. "

10.  The Claimant did not receive a reply. Complaint was translated to English, which was the additional cost for the Claimant.

11.  During the illness of the Claimant, the company of the Respondent remained open. It still serves clients.

12.  October 25th, 2016. The Claimant received a notification about the appointment of an independent person to examine the Claimant’s complaints. Procedures for Addressing Bullying sent in English were incomprehensible to the Claimant.

13.  October 28th, 2016. The Claimant received information that   Ms.C.O.N would carry out the investigation and that the date, time and place of the meeting will be set.

14.  It should be noted that in all the correspondence, the Respondent assured the Claimantthat Ms.C.O.N is independent and impartial person. In factit turned out that she knew the Respondent earlier and she is a closefriend of the Respondent, this should never be allowed in the process of the investigation.

15.  November 1st, 2016. The Claimant agreed to meet Ms.C.O.N. and asked the Respondent to organize a meeting after November 9th.

16.  November 4th, 2016 The Claimant confirmed her presence at the meeting.

17.  On November 10th, 2016, the meeting with Ms. C.O.N took place. The investigation took place in the lobby of the Glasshouse hotel, where a lot of hotel guests were passing by, which was an additional stress for the Claimant. Ms. C.O.N could not explain whether it was a formal or informal meeting. She did not want to show any document confirming her qualifications in conducting investigations.

18.  The Respondent, without the consent of the Claimant, handed document folder to Ms.C.O.N. with the Claimant's personal data.

19.  On 14th November the Claimant sent a message to Ms.C.O.N. asking her send the documents confirming her experience and qualifications.

20.  On 16th November, the Claimant received a message from Ms.C.O.N. that did not answer the Claimant's questions.

21.  On November 22nd, the Claimant received information about the appointment of an alternative independent person to conduct mediation.

22.  27th November 2016, the Claimant agreed to meet Ms. SW.

23.  On December 12th, the first meeting of the Claimant and Ms.S.W. took place.

24.  Jan 4th, 2017. The Claimant, at the request of Ms.S.W., presented her proposals that would help to solve the problem.

25.  January 6th, the Claimant received a message from Ms.S.W. that the meeting is being planned.

26.  January 7th Ms.S.W. notifies Claimant that the Respondent is dissatisfied paying for preliminary meetings with translators.

27.  On 18th January, a meeting with Ms.S.W. and the Respondent took place (in the separate rooms). The Respondent was imposing her conditions and was forcing the Claimant to give the date of her return to the work. The Respondent did not refer to the Claimant's grievances and problems. The Respondent used mediation to impose changes to the contract, unfavorable for the Complainant.

28.  In the correspondence after the mediations from January 18th, 2017 between the Respondent and Ms.S.W., the Respondentis dissatissfied with mediation payments and according to theRespondent“lack of the progress in mediation”. On January 19th, Ms.S.W. writes in an email to the Respondent that she sees the solution to the problem.

29.  On January 21st the Claimant received a message from Ms.S.W. that mediation was stopped.

30.  February 2nd the Respondent calls the Claimant to visit an independent doctor in the clinic.

31.  On 20th February, the Claimant sends a medical report to the Respondent. The doctor informs in this report that the Claimant is taking the medication and is currently unable to resume work.

32.  The Claimant agrees and signs the agreement to see an independent doctor.

33.  On 10th March, the Claimant received a message that the incorrect form has been sent. The form in the content is no different from the previous one. The only difference is additional option, that the Claimant could choose.

34.  March 15th, 2017 Mr.S.H. of   Occupational Health Assessors at 08:44 writes that the Claimant has the right to obtain a copy of the report, and at 12:46 changes his

mind. He corresponds with the Respondent and sends her the content of the letters from the Claimant.

35.  The Claimant did not read the e-mails every day, because of her psychological condition. It should be noted that the Claimant was on sick leave all the time and has been taking medication.

36.  The e-mail from March 16th, 2017 has been read later. The Claimant, on 20th March 2017, sent a request to the Respondent to change the date and the place of the meeting. The Claimant was unable to travel because of the lack of public transport to the place of the meeting.

37.  Each time the Claimant agreed to a medical appointment at the clinic.

38.  On March 23th, the Claimant sent her second consent for an appointment with an independent doctor. Consent has been supplemented according to the suggestions that the Claimant received from the Respondent on February 2nd.

39.  The Claimant did not agree to the telephone conference. The Claimant believes that the sensitive personal data (such as the state of health) should not be provided or discussed by the phone with the virtual person (this is in line with protection of the personal data).

40.  It should be noted that in the mediation process, a close friend of the Respondent was appointed instead of an impartial and independent person. It resulted in the loss of the trust and credibility of the Respondent.

41.  On 23rd March 2017, the Claimant has received a message from the Respondent that tests in the clinic can be conducted only in Galway or Dublin, and the employer does not cover travel costs.

42.  At this point, it should be noted that in all the correspondence, the Respondent writesto the Claimantthat a visit to a doctor will take place at the clinic,but does not mention that such visit willbe in another city.

43.  Everything organized by the Respondent was chaotic, reckless and resulted in unnecessarydelays in problem-solving process, which for the Claimant was a significant psychological burden (constant stress and anxiety).

44.  March 23rd, 2017 the Claimant received a call for the capability meeting, which was planned for the 29th March.

45.  27th March 2017 the Claimant informed Respondent of her serious illness and sent a sick leave which had been ignored.

46.  On 3rd April 2017, the Claimant received a letter from the Respondent on dismissal from work "with immediate effect with the payment of a cash equivalent for 4 weeks of notice".

47.  The equivalent was not paid.

48.  On 16th May 2017, the Claimant's appeal meeting with Mr.J.McN took place. The result of the meeting was agreed between the Respondent and Mr.J McN, which was unfavorable to the Claimant.

49.  June 12th, 2017 the Claimant received another letter from the Respondent regarding dismissal with changed date of termination of the Claimant's employment contract.

In her direct evidence , the claimant asserted that prior to commencing leave in August 2016 , a conflict arose on the 6th.August 2016 with a customer and Ms.EN shouted at her at work.An issue had arisen about sowing the outside of a blouse , the claimant was very upset as she is a qualified tailor and was wrongly accused – she stated she could nt rtake any more and went to her   doctor.She said that over the ensuing 6 months the respondent ignored the claimant’s difficulties with documents written in English.She stated that after 7 years of working for the company she was issued with terms and conditions of employment that were worse than what applied in practise.The claimant contended that the email from the respondent set out in page 97 of her booklet demonstrated that it was the respondent who withdrew from emdiation .The claimant went on to give her account of the difficulties she had with the proposed medical and the initial indication that she could view the repoert in advance of the respondent seeing it.She submitted that the respondent iignored her GP s cert covering the period 23-331.03.17 and proceeded with the capability meeting despite what her GP had stated.The claimant submitted that her dismissal was not independent and that the appeals officer ignored what she and her colleague had to say and relied completely on the respondent’s documents.

Submission on behalf of the Respondent

Preliminary point

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

her claim, 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 that she has not received the case her Public

Holiday entitlements, nor has she received her annual leave entitlements or pay in lieu of

notice, she has failed to specific the amount she claims is owing. The respondent is unable to

defend these claims.

Factual background

3) The claimant commenced employment with the respondent on 7th June 2010, she received a

Statement of Main Terms and Conditions of Employment and signed same on 12th December

2010. ( 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 10th 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.

7) By letter of 14th September 2016 the respondent wrote inviting the claimant to a meeting on

19th September to ‘properly assess your fitness for and likely return to work together with the

impact of your absence on our organisation and resources’.

8) The meeting did not go ahead because the claimant replied stating that the letters issued by

the respondent were deterring her from making a full recovery. The respondent wrote

requesting access to her medical reports. (see e-mail of 22nd September 2016 at page xx)

9) Access was not given and instead in October 2016 the respondent received a report from

the claimant’s GP stating that the claimant was suffering from ‘chronic degenerative neck

pain’ and work related stress. Consequently on 11th October 2016 the respondent wrote

offering the claimant the grievance procedure.

Grievance procedure

10) By letter of 19th October 20016 the claimant lodged a formal complaint of bullying. On 24th

October 2016 the respondent advised that an independent person was being engaged to

conduct the investigation and enclosed the Bullying Prevention Policy.

11) Ms. C O N invited the claimant to a grievance investigation meeting this was held 10th

November 2016.

12) However the claimant raised issues regarding her impartiality therefore by letter of

22nd November 2016 the respondent engaged Ms. S.W, accredited Mediator to hear the

mediation.

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

was unavailable on that date and the parties meet on 18th January 2017, at this meeting it

was agreed that they would engage in mediation.

14) 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. An agreement was made at the end of the mediation between claimant ,

mediator and respondent that the claimant would revert within the coming days if they had

any queries, they did not revert with queries and instead stated that the mediation had not

been successful, the interpreter was not good enough and sough a second meditation.

Mediation was withdrawn by Ms. S.W. due to lack of engagement by claimant.

Medical capability

15) By e-mail of 30th January 2017 the respondent sought confirmation of the claimant’s likely

return to work.

16) On 2nd February 2017 the claimant was invited to an independent medical assessment, the

claimant did not attend.

17) By e-mail of 7th February 2017 the respondent wrote advising that ‘the company may be

forced to make decisions regarding your employability based on the information available’.

They further requested the claimant to revert by 10th February confirming her consent to

attend the medical assessment.

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

Assessment. (see page xx). Unfortunately an incorrect form was sent to the claimant and 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. By telephone conversation the claimant advised that she

did not consent to the Occupational Assessment.

19) On 17th February 2017 the claimant’s GP advised that she is ‘unable to resume work due to

persistence of her symptoms’.

20) The claimant was invited to a medical capability meeting to be held on 21st March 2017 to

discuss her return to work, she failed to attend (see page xx).

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

take place via phone conference on 29th of March. This meant that the initial UK consent

form could be used. The claimant requested to be seen by occupational doctor in clinic in

her home town which   the Assessment company had no access to, she was unwilling to travel   away from home.

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.

22) On the 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 email.

23) She was invited to a further medical capability meeting to be held on 29th March 2016, the

claimant advised that she did not feel up to attending. The respondent wrote advising that

the meeting would proceed in her absence and if she wished to submit written submissions

or for any information to be included she should forward same. (see page xx).

24) These were not received and 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 4th March 2017).

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

26) The claimant responded expressing dissatisfaction with the decision, this was taken as an

appeal.

27) An external HR company were engaged to hear the appeal, by letter of 4th May 2017, the company

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.

28) The appeal was by way of a re hearing (see minutes at page xx)

29) The decision to terminate employment was upheld (see letter at page xx).

30) 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.’

31) 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:

32) “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.”

33) 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.

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

employer in those circumstances dismiss?”

35) 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.”

36) 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.”

37) 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 engaged with the respondent’s efforts to establish what

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

38) 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

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

2017.

40) The claimant was paid all holiday pay owing for 2016 and 2017, this was explained in letter

dated 7th June 2017 (see page xx)

41) 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,

In a later submission following the second hearing , the respondent submitted a further chronology of the entirety of the exchanges between the parties and the relevant time lines. 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 initiate disciplinary action when both claimants 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 – the appointed appeals officer gave evidence on behalf 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.