Complainant

Respondent

Anonymised Parties

A production assistant

A pharmaceutical firm

Representatives

None

A&L Goodbody Solicitors

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-00022624-001

15/10/2018

The complainant’s employment ended on the 27th September 2018 and she asserts that this was a contravention of the Unfair Dismissals Act. The respondent asserts that the complainant did not attend work while being deemed medically fit to do so. It denied the claim.

The complainant read a detailed statement into the record. She set out that her dismissal was unfair because the respondent did not have an objective justifiable reason to terminate her employment. She was not afforded her rights of fair procedure and natural justice. She commenced employment as a production assistant on the 8th August 2016. She had an impeccable record and enjoyed work. The complainant had a workplace accident on the 13th April 2018, where she suffered a head injury and was later diagnosed with concussion and blurred vision. She has since been diagnosed with post-concussion syndrome. She was on sick leave from the 10th May 2018.

The complainant outlined that she attended an occupational health doctor on the 9th May 2018 who determined that she was fit to work but made this diagnosis without any medical examination. The occupational health doctor made the same diagnosis on the 12th July 2018. During this time, the complainant submitted certificates from her GP certifying that she was unfit to work. The complainant outlines that she also saw an occupational health nurse at this time.

The complainant states that she received correspondence from the respondent on the 16th August 2018, requiring her to attend work on the 22nd August 2018. She replied that she was certified as not being fit for work until the 24th August 2018. She objected to the reference in the respondent’s letter to her sick pay entitlement ending or that this was a disciplinary matter up to and including dismissal. The respondent ceased paying sick pay on the 21st August 2018 and referred the complainant to the occupational health doctor on the 29th August 2018. She attended this appointment and the occupational health doctor proposed making a referral to a neurologist but deemed her fit to work. The respondent required the complainant return to work on the 11th September 2018.

The complainant continued to submit certificates showing that she was not medically fit to work. The respondent’s letter of the 13th September 2018 stated that this was a final warning and that she should return to work on the 19th September 2018. The complainant said that she did not receive any earlier warnings, as required by the procedure. She attended a neurologist and was prescribed medication which could only be taken at night as it made her drowsy. She said that while the neurologist’s letter does not state that she is unfit for work, the consultant verbally informed her of this. She outlined that the HR Manager dealing with her during the sick absence also made the decision to dismiss her.

The complainant outlined that the dismissal was unfair as there was no reason for the dismissal, and she was not afforded fair procedures. She was deemed to have resigned on the 27th September 2018. The team leader told her that there was a report about the accident, but she had never seen this. In respect of the occupational health consultation of 9th May 2018, the complainant commented that there had not been an examination and the doctor had only said that she needed glasses. The complainant challenged how she could have been certified as fit. She cancelled the appointed with a neurologist as she was already receiving treatment from her own neurologist. She said that all her absences were certified by her GP. She said that the respondent had paid her 14 weeks of sick leave.

After the dismissal, the complainant said that she was certified as sick until the 14th February 2019. She was now on jobseeker’s benefit and looking for work. She has signed up on some recruitment websites, looking for pharmaceutical roles.

The respondent submitted that there were no issues with the complainant’s performance. The complainant went off sick from work in May 2018 and there were difficulties in contacting her. She was put into the managed attendance programme, including having to attend occupational health. She was entitled to 26 weeks of sick pay.

The respondent outlined that the complainant engaged with a nurse, who is its employee, as well as the external occupational health doctor. The complainant cancelled the consultation with a specialist. It commented that the GP certificates submitted by the complainant only say “head injury” and they had not seen the reports from the two hospital consultants until the hearing. It commented that neither says that the complainant was unfit for work.

The respondent outlined that it requested the complainant to go back to work on five occasions, including with the offer of rehabilitation. She was warned that her entitlement to sick pay was coming to an end. The complainant did not comply with a requirement to come back to work. The respondent submitted that the complainant effectively abandoned her employment.

The respondent referred to the occupational health report of the 12th July 2018, which deems the complainant fit to work and suggests restricted hours. This position is repeated in the occupational report of the 29th August 2018. The respondent letter of the 7th August 2018 stated that the complainant was required to attend the occupational health appointment and non-attendance could be a disciplinary matter and lead to the ending of sick pay. In its letter of the 7th September 2018, the respondent provides the complainant with details of a phased return to work commencing on the 11th September and ending the 14th October 2018. The letter concludes “should you not comply with the conditions of this letter we will take your lack of attendance to mean that you have ended your employment contract with [the respondent].” The letter of termination is dated the 27th September 2018. It refers to five written requests sent to the complainant for her to attend work and states that the complainant has not attended work. The letter states “you did not return to work this morning as requested. Due to your actions you have deemed to have resigned effective from today, the 27th of September 2018.”

The respondent submitted that the complainant was unfit for work until the 14th February 2019 so there is no financial loss arising from the dismissal. There was no financial loss or mitigation in this case. She did not comply with any of the five requests to return to work. There is no medical evidence other than the GP’s certificates. The respondent said that the complainant’s pay was about €550 per week, gross and she was entitled to a 33% shift allowance over her roster. The complainant was certified fit to work by the occupational health doctor and had not shared other reports with the respondent.

The complainant’s employment was deemed to have ended on the 27th September 2018. While the respondent documentation relating to the appeal stated that the complaint to the Workplace Relations Commission was “premature”, it is clear that the date of termination of employment was the 27th September 2018. The complaint was referred to the Workplace Relations Commission on the 15th October 2018.

Taking the hourly rate of pay, the complainant’s ordinary hours and a shift allowance, I find as fact that the complainant received grossly weekly pay of €620.

The letter of dismissal is clear that the respondent deemed the complainant to have resigned from work due to her non-attendance. It is clear that the respondent had warned the complainant of the threat to her employment in not attending work or not attending occupational health consultations. This correspondence references the respondent’s Managing Attendance policy but there is no mention of dismissal in the policy. The correspondence does not refer to the dismissals or a disciplinary policy. The decision to dismiss was also not made with reference to either a dismissals policy or a disciplinary policy.

The correspondence characterises the dismissal as a ‘self-dismissal’, i.e. the employee being deemed to have resigned, rather than the employee stating verbally or in writing or by electronic means or through communication on social media of their intention to terminate the employment relationship. I note in Meenan “Employment law”, 2014, at 20.68, the author states “It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.”

The Unfair Dismissals Act provides at section 6(1) that a dismissal is deemed unfair unless there are substantial grounds to justify the dismissal. As the complainant did not resign and there is no self-dismissal, the onus falls on the respondent to show substantial grounds to justify the dismissal.

I find that the respondent has not established that there were substantial grounds to overturn the deemed unfairness of the termination. This is because the respondent did not invoke either its dismissals policy or the disciplinary policy in seeking to dismiss the complainant. Instead it relied on the managed attendance policy, which does not provide for termination. The consequence was that the complainant was not afforded procedural safeguards to challenge the dismissal, as opposed to addressing her fitness to attend work.

It follows that the dismissal of the complainant was unfair and a contravention of the Unfair Dismissals Act. In assessing loss, I note that according to the complainant’s own evidence, she was not fit to work until February 2019. It is well-established that redress arising from an unfair dismissal is for financial loss arising from the dismissal. The complainant could not work because of her ill-health, so this loss of income arises not from the dismissal but from her ill-health. The complainant cannot recover redress under the Unfair Dismissals Act until the 14th February 2019, when she was able to work again.

I find that the complainant incurred financial loss after this date. I find that this loss is not too remote from the event of dismissal to prevent an award pursuant to section 7(1)(c)(i), as opposed to the maximum award of four weeks otherwise permissible under section 7(1)(c)(ii). The complainant did not seek either reinstatement or re-engagement.

Taking account of the circumstances, I award the complainant the equivalent of eight weeks of financial loss. This award is just and equitable in the circumstances, given the long period the complainant was not available to work or to seek alternative employment. It takes account of the accommodations offered to the complainant, for example the sick pay and the referrals to occupational health. Given the finding that the complainant’s gross weekly pay was €620, the redress awarded is €4,960.

CA-00022624-001

For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant redress of €4,960.

Unfair Dismissals Act / no ‘self-dismissal’

Financial loss / ill-health