Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

MargaretDalyNorth Dublin Citizens Information Service

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-00026945-001

11/03/2019

The complainant claims that she was unfairly dismissed from her employment with the respondent on 29 June, 2018.

The complainant commenced employment with the respondent in 2004.

The complainant had an exemplary track record of employment with the respondent until she became ill in November, 2015. The complainant had a nervous breakdown in November, 2015.

She went out on sick leave on the 13th of November, 2015.

On the 15th of December, 2015 a HR representative of the respondent requested that the complainant attend a meeting at the respondent’s premises on the 18th of December. The purpose of the meeting was to discuss her illness and also their long-term absent process. The complainant attended for this meeting. The HR representative had a page with her and on it were numerous questions. Halfway through asking those questions the complainant became so distressed that the meeting had to be cut short.

The complainant heard nothing until 16th of March, 2016 when she was again requested to attend at the respondent premises for a meeting on the 23rd of March 2016. The complainant received similar requests on the 17th of October, 2016 and 6th of February, 2017.

The complainant was sending in her medical certificates on a monthly basis to the respondent.

In December of 2017 the complaint received a letter from HR asking if she would be interested in the voluntary redundancy scheme that the company was offering at that time. The complainant promptly replied to this request and stated that she would be interested. The complainant heard nothing back from the respondent. In January, 2018 when the complainant was at one of her HR meetings she asked about the voluntary redundancy. She was informed that it was no longer on the table. Then out of the blue in June 2018 she received a letter terminating her contract of employment. The complainant knows that in September 2018 the voluntary redundancy scheme was rolled out.

The complainant is in receipt of an invalidity pension at the moment however she has registered for partial capacity work and is hopeful that something will come up in the near future. She wants to get back to work albeit in a less stressful role.

No Appearance for or on behalf of the Respondent. I am satisfied that the Respondent is on notice of the date, time and venue for the hearing as they applied for a postponement on the 17.07.2019. The application was refused.

The complainant has brought this claim stating that in all the circumstances surrounding the termination of her employment she was unfairly dismissed.

The complainant went out on long term sick leave in November,2015. On numerous occasions, whilst certified unfit for work, she was requested to attend at the Respondent premises for HR meetings to discuss her leave. Certified sick leave is protected leave and the respondent should not have requested that the complainant attend at their offices for meetings in the absence of a medical opinion that she was fit to attend at such meetings.

Following an extend period of leave the complainant received a letter out of the blue terminating her employment.  The principle as set out in the Bolger v Showerings (Ireland) Limited [1990 ELR 184] case should be adopted by the Respondent prior to making the decision to terminate the complainant’s employment. This case sets out the key requirements to be met when an employee is being dismissed for incapacity:

·         Ill health must be the reason for the dismissal;

·         this must be a substantial reason;

·         the employee must be notified that dismissal for incapacity is being considered; and

·         the employee must be given a chance to be heard.

Based on the complainant’s uncontested evidence, I find that the respondent failed to notify the complainant that dismissal due to her incapacity was being considered and that they failed to allow her an opportunity to be heard.

In all of the circumstances I find that the complainant’s case is well founded and accordingly succeeds.

In assessing what compensation is appropriate to award the complainant, I note that she is currently in receipt of a disability pension, however she has registered for partial capacity employment. The complainant was earning € 1,300 monthly when she was employed by the respondent.

I award the complainant € 10,000.00  

The claim succeeds. I award the complainant € 10,000.00

Dismissal. Incapacity.