FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : ALTERATION CENTRE (REPRESENTED BY PENINSULA) - AND - MS RENATA URYN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No(s)ADJ-00009113
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 20 March 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 10 October 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by The Alteration Centre against the decision of an Adjudication Officer ADJ-00009113, CA-00011980-001 dated 19th February 2019 under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim of unfair dismissal by Ms Renata Uryn against her former employer. The Adjudication Officer held that that the dismissal was unfair and awarded the Complainant the sum of €4,000 in compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Renata Uryn will be referred to as “the Complainant” and The Alteration Centre will be referred to as “the Respondent”.
The Complainant submitted her claim under the Acts to the Workplace Relations Commission on 19th June 2017.
Background
The Complainant commenced employment with the Respondent on 24th August 2011. By letter 9th August 2016 the Complainant was invited to attend a disciplinary hearing to be held on 17th August 2016. The Complainant commenced a period of sick leave on 12th August 2016. She sent a medical certificate to the Respondent covering the period from 12th August 2016 to 28th August 2016.
The scheduled disciplinary meeting of 17th August 2016 did not proceed. The Complainant informed the Respondent that due to her ill health she could not participate in the disciplinary meeting.
By letter of 31st August 2016 the Respondent invited the Complainant to an informal welfare meeting. The Complainant did not respond to the invitation. By letter of 16th September 2016 the Respondent invited the Complainant to a meeting in the Glasshouse Hotel, Sligo on 22nd September 2016, the letter stated that the meeting was to“properly assess your fitness for and likely return to work together with the impact of your absence on our organisation and resources.”The Complainant responded“Because I would not be comfortable and the meeting would give me additional stress and I would like to return to health as soon as possible, and thus to work”
On 22nd September 2016 the Respondent wrote to the Complainant requesting her consent to access her medical records. On 4th October 2016 a report was sent by the Complainant’s General Practitioner which reported that the Complainant was suffering from“stress, anxiety, poor sleep and low mood caused by ongoing problems at work”. It also stated that the numerous contacts from the Respondent to the Complainant were contributing to her worsening symptoms.
On 11th October 2016 the Respondent wrote to the Complainant inviting her to avail of the Respondent’s grievance procedure. By letter of 19th October 2016 the Complainant lodged a formal complaint of bullying. On 28th October 2016 the Respondent advised the Complainant that an independent person, Ms Catherine O’Neill, was to be engaged to conduct the investigation.The Complainant agreed to participate in mediation. Ms O’Neill invited the Complainant to attend a grievance investigation meeting which was held on 10th November 2016.
Following further correspondence, the Complainant by email of 15th November 2016 raised questions about the experience and impartiality of Ms O’Neill. The Respondent responded to this query providing details of her impartiality. By letter of 22nd November 2016 the Respondent appointed Ms Sabine Walsh to investigate any additional or unresolved issues the Complainant had in her employment. A preliminary meeting with Ms Walsh took place on 12th December 2016. A second meeting took place on 18th January 2017, discussions were held on establishing a normal working relationship for the future.
On 18th January 2017 at the mediation session, the Complainant was provided with detailed job descriptions of her duties and daily routine. The Complainant was informed that she would be provided with contractual information, translated into Polish, as sought by her in her letter dated 14th October 2016 and that should there be any issues which were not completely resolved they should be communicated by 20th January 2017.
Around this time, the Respondent sought details from the Complainant regarding a possible return to work date. No reply was received. On 6th February 2017 the Complainant informed the Respondent that she needed to make an urgent trip to Poland. On 10th February 2017 the Respondent sought authorisation from the Complainant to arrange for her to attend an independent medical assessment.
The Complainant consented to attend the occupational health assessment and filled in a consent form on 14th February 2017.
On 17th February 2017 the Complainant’s General Practitioner advised that the Complainant was unable to resume work due to the being treated for anxiety, stress and depression.
On 16th March 2017 the Complainant was invited to a medical capability meeting to be held on 21st March 2017. The Complainant advised she was agreeable to attend and would complete a consent form on 14th February 2017. The Complainant completed the consent form to attend an occupational medical practitioner on 23rd March 2017. In doing so she stated that she wished to see a copy of the Occupation Health Report before it being sent to the Respondent. The Respondent informed her that such medical tests could only be performed in Galway or Dublin and it did not cover the costs of travel to the clinics, therefore it required her to complete a telephone consultation on Wednesday 29th March 2017 at the Glasshouse Hotel, Sligo, for a medical assessment with an Occupational Health Specialist based in the UK, and an interpreter would be provided to assist in translation. The Complainant refused to partake in the medical assessment. The Respondent invited the Complainant to a meeting to be held on 29th March in The Glasshouse Hotel to determine the likelihood of her return to work. The Complainant wrote to the owner of the Company by email dated 27th March 2017 seeking to have the medical assessment deferred and reorganised by a visit to a doctor’s office. This was responded to not by the owner but by management, Ms N, who informed the Complainant that the owner was not in a position to respond due to personal reasons and advised her that the consultation meeting would proceed in the absence of the Complainant and that the Complainant could make written submissions or submit any information she believed relevant to the decision-making. Nothing further was received from the Complainant and she did not attend on 29th March 2017.
By letter dated 3rd April 2017, the Complainant was informed that as the Respondent had concluded that there was no prospect of her returning to work in the foreseeable future and taking account of its need to find a permanent replacement for her, Ms N informed her that her employment was terminated. She was given the right to appeal, which the Complainant exercised.
The Complainant appealed the decision to dismiss. Mr John McNicholas, Lean Team Strategies were appointed to hear the appeal. By letter of 4th May 2017 the Complainant was invited to attend an appeal hearing scheduled for 16th May 2017. The Complainant was asked to submit all evidence prior to hearing. No further evidence was presented by the Complainant.
By letter of 25th May 2017 the Complainant was informed of the outcome of her appeal in a letter from Mr McNicholas. In his letter he stated that the original decision made by Ms N stood and outlined the reasons for her dismissal, which included,inter alia, that she failed to provide consent for medical occupational assessment, therefore the medical assessment had to take place without the benefit of a report. The other reasons cited included her failure to attend the capability hearing on 29 March 2017 to provide any written submission when invited to do so and her failure to engage in any attempts to resolve her employment issues which he said hampered the Respondent in trying to establish her likelihood/ability to return to work. Mr McNicholas also stated that all correspondence with her was translated into Polish. Therefore, the Complainant was informed that the decision to dismiss on grounds of medical capability was upheld. By letter dated 7th July 2017, the Respondent informed the Complainant that following the appeal outcome, her date of termination of employment which included four weeks’ notice was 1st May 2017.
The Respondent ceased trading in September 2018.
Summary of the Respondent’s Case
Ms Lisa Weatherstone, Solicitor, Peninsula Business Services (Ireland) Limited on behalf of the Respondent, denied that the Complainant was unfairly dismissed. She told the Court that the Complainant’s sick leave commenced on 12th August 2016. She said that the Respondent provided the Complainant with multiple opportunities to provide evidence in relation to her medical condition. The Complainant failed to do so. The Respondent exhausted all options before proceeding to hold a medical capability meeting without the benefit of medical evidence beyond the sickness certificates provided by the Complainant. The Complainant was informed of the possible outcomes of the medical capability meeting, including the possibility of the Complainant’s employment being terminated. In the absence of evidence to the contrary there was no apparent prospect of the Complainant returning to work in the foreseeable future and her employment was terminated on medical capability grounds.
Ms Weatherstone said that the decision to terminate the employment of the Complainant was taken without the benefit of the participation of the Complainant or medical evidence from either the Complainant’s personal medical practitioners or a report from Occupational Health professionals. This is because the Complainant failed, refused or neglected to make any such evidence available.
The Complainant was invited to make written submissions after the meeting which she failed to attend so that any matters she felt should be considered could be considered. The Complainant failed, refused or neglected to enter any such submissions.
The Complainant was offered a right of appeal of the decision to dismiss her, which the Complainant utilised.
Ms Weatherstone submitted that there was an obligation on the Complainant to wholly or substantially utilise the procedures made available by the Respondent. The Complainant failed to engage in any meaningful way with the medical capability process. In the absence of such engagement it is impossible to state whether the outcome of the process would have been different. In support of the Respondent’s position, Ms Weatherstone relied uponMelinda Pungor v. MBCC Foods(Ireland) LtdUD/548/2015 where it was held that the complainant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal. The Employment Appeals Tribunal stated:
- The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.
InArzta Bakeries v Vilnis CacsUD/17/106 it was held:
- “….there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so.”
Ms Weatherstone maintained that every opportunity was made available to the Complainant to engage with the Respondent. In return the Complainant sought to frustrate the processes of the Respondent while at the same time failed to meaningfully engage with the process.
Summary of the Complainant’s Case
With the assistance of the interpreter provided by the Court, the Complainant who was unrepresented at the hearing of the appeal claimed that she had been unfairly dismissed. She told the Court that she was medically certified as unfit for work from 12th August 2016. She said that despite her illness she actively co-operated with the Respondent however, it did not respond to the formal bullying complaint she made concerning the behaviour of Ms N. She said that the only person she had interaction with was Ms N, who on 3rdApril 2017 dismissed her from her employment. She argued therefore that Ms N was a judge in her own case.
The Complainant stated that all attempts to seek help from the Respondent were unsuccessful and the mediator appointed was someone close to the Respondent depriving her of an unbiased assessment of the situation. She contended that the mediation process was halted by the Respondent.
The Complainant contended that she had repeatedly consented to medical evaluations, however, no such independent evaluation was carried out.
She also contended that the appeals process was conducted by a biased person and that Ms N had an active influence on the outcome of that decision. In summary she submitted that there was a lack of fair procedure and natural justice in the disciplinary process which lead to her dismissal. She claimed payment of €6,000 in compensation.
Findings and Conclusions of the Court
Disciplinary Procedures
With regard to the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provide:-
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—
- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.
- The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.
It is clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of fair procedures which lays down that certain specific matters must be complied with. The protection to be afforded to a person who is being investigated under the disciplinary process will vary according to the circumstances. However, there are certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances.
Having examined the disciplinary procedures adopted in this case, the Court notes that the Respondent was a small independent company with two employees (both of whom were on long term sick leave at the same time). Such circumstances made it difficult for the company to survive and it ceased trading in September 2018. The Court notes that the Respondent availed of the services of independent persons to conduct the mediation process and to hear the Complainant’s appeal. This is commendable. However, the fact that Ms N was not only the person who took the decision to dismiss and carried out that dismissal was also the person whom complaints of bullying were made by the Complainant, it is clear to the Court that this is in breach of the principles of natural justice, “nemo iudex in causa sua”,no personmustbe a judge in their own cause.In such circumstances the Court must find that the proceedings were not conducted fairly and consequently finds that the dismissal was unfair.
Redress
The Court has taken account of the losses suffered by the Complainant arising from her dismissal. The Court has also taken into account, as it is required to do by section 7(2)(b) of the Acts, the extent to which the Complainant’s conduct contributed to her dismissal. In that regard, the Court is satisfied that the Complainant, by her lack of cooperation with the Respondent in its attempts to seek information on her capability to attend work contributed to her dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.
Determination
While the Court concurs with the Decision of the Adjudication Officer, it hereby varies the award of compensation ordered. The Court orders the Respondent to pay the Complainant compensation in the sum of €5,000.00.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CC______________________
29 October 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.