Complainant

Respondent

Anonymised Parties

A General Operative

An Automotive Company

Representatives

John J Quinn & Co Solicitors

Hugh McCarthy & Associates Chartered Accountants

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-00023124-001

09/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00023124-002

09/11/2018

The complainant was employed by the respondent as a General Operative from October 2014 until termination of his employment was conveyed to him in a letter from the respondent on 25th May 2018.

It was agreed at the commencement of the adjudication hearing to amend the respondent’s details to reflect the fact that it is currently in voluntary liquidation.

The complainant stated that he injured his back on or about the 30th April 2018. The complainant confirmed that he was certified unfit for work on 1st May 2018 and submitted a medical certificate to his employer on that date. The complainant stated that he telephoned the employer on 8th May 2018 confirming his continued absence and notified the person who answered his telephone call that due to his injury, he would be absent for a number of weeks but was unable to drive and therefore could not submit his medical certificate to the employer at that time. The complainant stated that the person in question committed to passing on the information to the appropriate person in the Human Resources Department. The complainant stated hat he heard nothing further from the respondent until he received notification of the termination of his employment on 25th May 2018.

The complainant contends that his dismissal was unfair as the respondent did not apply fair procedures to him. The complainant outlined that he was unaware that he could be dismissed as a result of his absence as this is not stated in the notification of illness protocol included in his contract of employment. The complainant also stated that he was not referred to the Company doctor for assessment, received no contact at all from the respondent prior to his letter of dismissal and was not given an opportunity to appeal the decision to dismiss him. The complainant is seeking compensation in relation to his complaint.

The respondent company is in Voluntary Liquidation. The respondent did not attend the adjudication hearing. A representative of the Liquidator attended the adjudication hearing but did not comment on the specifics of the complaint.

In relation to this complaint I find as follows:

The complainant was certified as medically unfit to attend work and notified his employer of his absence on 1st May 2018. The complainant contacted the respondent again on 8th May 2018 in relation to his continued absence and his inability to submit further medical certs due to his ongoing back injury and his inability to drive a car at that time. When the respondent had not heard from him by the 25th May 2018, it wrote to the complainant and informed him that he had terminated his employment by his failure to make contact since 8th May 2018.

I find the respondent’s actions towards the complainant in this regard to be unfair. The respondent did not apply any procedures and made no contact with the complainant prior to his dismissal. In my view, while the complainant should have made greater efforts to keep in touch with the respondent during his absence, the respondent had a duty to enquire of the complainant’s wellbeing and to seek clarification in relation to his continued absence prior to taking the decision to dismiss him from his employment.

Mitigation of Loss

The complainant confirmed that his gross weekly rate of pay was €433.03 and that it was approximately 52 weeks (at the date of the adjudication hearing) since he was dismissed. Accordingly, the complainant quantified his losses at €22,517.44.

Post Hearing correspondence

The complainant was in receipt of a payment from the Department of Employment Affairs and Social Protection (DEASP) from 1st May 2018 to date but was unaware at the adjudication hearing which payment he was in receipt of. It was subsequently clarified in correspondence dated 5th June 2019 from the DEASP that the complainant has been in receipt of Illness Benefit from 1st May 2018 and remains in receipt of Illness Benefit to date.

As the complainant has been in receipt of Illness Benefit continuously since 1st May 2018, I note that he remains unfit for work to date. In circumstances where the complainant is unfit for work due to ill health, no loss accrues under the Unfair Dismissals Acts, 1977 -2015. In accordance with Section 7(1)(c)(ii) of the Unfair Dismissals Acts, 1977-2015 where no loss accrues, the maximum compensation payable to the complainant is four weeks’ gross pay.

In conclusion, I find that the complainant was unfairly dismissed on the basis of the lack of procedures utilised by the respondent and its failure to make any contact with him prior to taking the decision to dismiss him for his employment.

The complaint is well founded. The respondent is directed to pay the complainant €1,732.12 (four week’s gross pay) in compensation.

Unfair Dismissal