Complainant

Respondent

Anonymised Parties

A public servant

A public body

Representatives

Gerard Carthy, Connellan Solicitors

MP Guinness BL

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-00021888-001

17/09/2018

The complainant had substantial sick leave and was unavailable for work for a long period. The respondent claims she was not in compliance with the sick leave procedure in relation to submitting medical certificates. The complainant was dismissed.

The complainant was employed by the respondent from 13/10/2007 until 27/12/2017. From early 2015 she began to suffer from severe anxiety and was hospitalised on two occasions for 9 weeks and 7 weeks.   Because of her illness and associated medication she was not punctual in submitting medical certificates but believes that she did eventually get them all in. She was sacked for failure to submit certs which she believes was grossly disproportionate. Due to her illness and shame at being sacked she did not file her complaint within the 6 months.

The complainant was dismissed by reason of long term sick absences of over three and a half years (she had been absent on continuous sick leave since February 2015), failure to comply with absence work regulations and failure to properly engage with the respondent including the CMO.

Preliminary Issue.

The complainant is out of time for submitting her claim. The Labour Court in Cementation Skanska v Carroll established the test for deciding if an extension should be granted as follows;

‘It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.   The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been to reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Hight Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation made it clear that ‘it is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant there is some limitation on the range of issues which can be taken into account’.

In particular, as was pointed out in the above case, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The reason being put forward in this instance is simply because of the complainant’s illness and her shame at being sacked. It is submitted that the latter is not a sufficient reason to justify an extension of time. In relation to illness the test is that but for this the complainant would have submitted her claim in time.

Substantive Issues

In 2012 the complainant was absent on sick leave due to anxiety for 7 days, in 2013 for a total of 28 days, in 2014 for 245 days and from 9th February 2015 until her dismissal. During that period the complainant was seen by the CMO on a number of occasions. In December 2014 she sought and was given a temporary transfer with light duties which lasted until April 2015. Following a further period of illness and a visit to the CMO the temporary transfer was made permanent but she did not take up duty. It transpired that she had sent medical certificates to her previous location of employment during this period. A representative of the Employee Assistance Programme (EAP) attempted to contact her on a number of occasions but with no success. The complainant failed to attend two appointments with the CMO in October 2015. She attended on a number of further occasions in 2016.

The complainant had consistently failed to provide medical certificates. She was informed in Feb 2017 that as she had failed to furnish sick leave documentation despite reminders, her retention with the Respondent was under active consideration. She was afforded an opportunity to make a submission as to why her file should not be submitted to the Secretary General recommending her dismissal. The complainant sent a letter in March 2017 setting out the reasons for her failure to provide the certs and gave assurances that she would rectify the situation. In May 2017 the respondent wrote again looking for outstanding certs and saying if the situation was not rectified within 7 days he would have no choice but to recommence the dismissal process.

Following a further visit to the CMO he advised on 27th June 2017 that he was of the opinion that she would be better to take a career break to allow her time to consider if (her current occupation) was the best career choice for her.

On 19th September 2017 the respondent wrote to the complainant attaching a copy of the submission to be sent to the Secretary General of the Department regarding her proposed dismissal. The letter said prior to your file being submitted you are hereby afforded one final opportunity to make a written submission to…for consideration by the Secretary General as to why you should not be dismissed. Any submission you wish to make must be received in this Directorate by close of business on Friday 29th September 2017.

The complainant submitted a detailed letter asking the respondent to reconsider. A file was sent to the Secretary General recommending dismissal and the complainant was informed on 26th October 2017 that she would be dismissed from 27th December 2017.

It is submitted that it was entirely reasonable to dismiss the complainant in light of all the evidence and the fact that she had been on continuous sick leave since 9th Feb 2015. The complainant did not comply with absence regulations and could not be contacted at all over various periods of time. On her final visit with the CMO he advised that she could return to work but a career break was advisable. No steps were taken by the complainant to return to work. No application was received for a career break.

The respondent accommodated the complainant throughout her illness by affording her a permanent transfer and regular hours and agreed to phased returns. It is a fundamental requirement of the employment relationship that the employee complies with his or her obligations in respect of reporting absences.   It is also a fundamental requirement that the employee is available and in fact attends work. An employer cannot be reasonably expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for his dismissal are genuine. At the time of he dismissal the complainant did not give any indication of when she might be in a position to return to work having been on continuous sick leave since February 2015.

Preliminary issue.

The Respondent has submitted that no reason has been provided to explain why the Complainant had not lodged a complaint under the Unfair Dismissals legislation at that time. The Respondent has cited The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, for an analysis of what could be considered “reasonable cause'

The Labour Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.   The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been to reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In Gaelscoil Thulach na nOg v Joyce Fitzsimons–Markey (EET 034), it stated: “To be exceptional, a circumstance need not be unique or unprecedented, or very rare, but it cannot be one which is regularly, or routinely encountered

The complainant has given evidence to the effect that her illness prevented her from submitting the claim in time and this is effectively backed up by the CMO in his letter of 12th Nov 2015 in which he stated:

I am aware that (the complainant’s)TRR has been stopped following her failure to attend for appointment in this Office last September.   Unfortunately, it is in the nature of her medical condition that she may not be able to follow up appointments etc.

It would seem to me therefore that the complainant might reasonably have failed to submit her claim in time, because of her illness and therefore I find that the complaint is in time.

Substantive Issues.

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The respondent has stated that the complainant was dismissed by reason of long term sick absences of over three and a half years, failure to comply with absence work regulations and failure to properly engage with the respondent including the CMO. It is clear from the CMO’s own report of 12th November 2015 that it was to be expected that she might not follow up on appointments due to the nature of her medical condition. It is also of note that engagement with the EAP does not appear to be compulsory under the respondent’s procedures and therefore could not be used as a justification to terminate her contract.

The letter of 27th Feb 2017, which is the first indication of the possibility of dismissal, refers only to the not furnishing sick leave documentation and not to being unavailable for work. The follow up letter on 9th May 2017 again only refers to failure to furnish sick leave documentation.

The copy of the submission to the Secretary General dated 31st August 2017 confirms that the complainant in fact submitted the medical certification on 7th June covering the previous 12 months and that she was ‘subsequently five weeks late in submitting certificates for the period 19 June to 24 June 2017 which was presumably one medical certificate. The submission stated;

(the complainant) has been employed by (respondent) for almost 10 years and has been absent on sick leave for over 3.5 years in that time.   She has been absent due to significant medical issues. Over a long period she has failed to, or has been incapable of, properly fulfilling her obligations under the Sick Leave regulations. For that reason, as there remains no indication of her returning to duty, I hereby recommend that she be dismissed from (the respondent).

The submission also states;

On face value, given the amount of sick leave (the complainant) has availed of, sick leave warning letters would have been warranted. This would suggest that a process existed whereby formal warnings should have been given specifically in relation to the amount of sick leave and being unavailable for work– rather than the documentation issue – in order that the complainant would be fully aware that being unavailable for work could result in her dismissal. These warnings were not given.

In Bolger v Showerings (Ireland) Ltd (1990) ELRR 184 the High Court found that, for a dismissal due to incapacity the employer must show that; incapacity was the reason for the dismissal; the reason was substantial; the employee received fair notice that the question of dismissal for incapacity was being considered and; the employee was afforded the opportunity of being heard. While it is permissible to dismiss an employee on the grounds of incapacity, this can only be done where the employer has made sufficient enquiries as to the extent of the employee’s condition and due consideration has been given to any reasonable accommodations that could be put in place to render the employee capable. The employee must also be informed that their dismissal is being considered due to their incapacity. This was not made clear to the complainant in this case but rather, it was the failure to comply with sick leave procedures by not submitting sick certificates that was highlighted as the principal issue.   At the time of the submission to the Director General it would appear that there was in fact only one such certificate outstanding.

The respondent has argued that this was not a disciplinary issue and therefore disciplinary processes did not apply. Whether or not the failure to submit medical certificates was the sole reason for the dismissal, it is clear that it was at least a significant contributory factor in the ultimate decision as is evidenced by the various letters from the respondent. it is clear that this particular aspect should have been dealt with under the disciplinary process and that the rules of natural justice should have applied. The complainant was not offered an opportunity to be represented and, in light of her medical condition, it was self-evident that she would have difficulty in representing herself.

The procedure used to terminate her employment was therefore fundamentally flawed.

The complainant has sought the remedy of re-engagement. The respondent has emphasised the need for regular attendance in order to properly provide the essential service in question and therefore I believe compensation to be a more appropriate remedy in this instance.

The complaint in relation breaches of the Unfair Dismissals Acts 1977 - 2015 is well founded and I order the respondent to pay the complainant €20,000 in compensation.

Procedures in Dismissal due to illness. Medical certificates. Disciplinary procedures