ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | An Administrator/ Receptionist | A Chamber of Commerce |
Representatives | Chamber Managers |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00027041-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern the alleged Unfair Dismissal of a Receptionist/Administrator by a Chamber of Commerce. |
1: Summary of Complainant’s Case:
The Complainnat began employment (20 hours per week in a part time role) in a small Chamber of Commerce (Chamber A) in March 2000. All went well until a merger with the much larger Chamber B, located some 8 miles away in a much larger town, came on to the agenda in December 2016. The merger was a Transfer under TUPE with the Complainant’s rights protected. The Complainant alleged that she was unable to successfully establish what her new position in Chamber B would entail. It was clear to her that most of the main elements of her existing role such as Mornings Only work and limited “Sales/Promotion Work” in Client Companies would not be in the new position. The new role was spread across the day and involved considerable travel to member Companies and new Client membership prospects. Considerable discussions/meetings followed in the Spring of 2017. The Complainnat took pre-arranged Annual leave to travel overseas in late February/March 2017. The Complainant was due to commence work in Chamber B on the 20th March 2017 but felt unable to do so. She received Medical Certificates from her GP in relation to “Stress” and remained on sick leave until her eventual ending of employment in September 2018. During most of the latter half of 2017 and early 2018 she was involved in a reference to the WRC under the TUPE regulations which eventually concluded in the issuing of Adj-00007238 on the 3rd of September 2018. The process had been delayed by various postponements of hearing dates and unavailability of key personnel. The Complainant felt that the Respondent had been responsible for most of the delays. The Respondent employer arranged to have her Medically reviewed by MedWise in June 2018. MedWise advised that the “stressors” in her situation should be addressed prior to any suggested return to work. She made several efforts to suggest Counselling /Mediation to the Respondent, but these were refused. She was given an ultimatum on the 10th September 2018 to return to work by the 21st September. She could not accept this unilateral approach and did not return. Her employment was then ended. In summary she alleged that the entire process since the MedWise report was badly handled by the Respondent. All suggestions /queries by her of Mediation/Counselling were refused and she was effectively given a no choice ultimatum. This amounted to a gross case of Unfair Dismissal to which she is seeking redress. |
2: Summary of Respondent’s Case:
The dates of employment are as stated by the Complainnat. She was requested to TUPE to Chamber B in the Spring of 2017. Numerous meetings took palce but were unsuccessful. The Complainant went on Sick Leave in March 2017 and remained so until her employment ended in September 2018. A reference to the WRC under the TUPE regulations was made in early 2017 and eventually ended by the issue of Adj -00007238 on the 3rd March 2018. The decision was in the Respondents’ favour. The Respondent, following a very lengthy period of Sick Leave, referred the Complainant to the MedWise Occupational health facility in June 2018. The Report did not identify any major objections to the Complainants return to work. The Respondent requested, by e mail of the 10th of September 2018, that the Complainant return to work in location B by the 21st September. She declined leaving he Respondent with no option but to end the employment. The Respondent had acted absolutely fairly during a very lengthy period from March 2017 and no case for Unfair Dismissal can arise. They had never any intention of ending the employment of a valued employee with 17 years’ service but her complete refusal to cooperate in the move to Location B had made the decision inevitable. |
3: Findings and Conclusions:
3:1 The relevant Law. 3:1 The Law. – Natural Justice The chief statutory Legislation in this area is the Unfair Dismissals Act,1977 supported by SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures In an Unfair Dismissal situation, the guiding legal principle must be that of Natural Justice. In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct: “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. 2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. 3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. 4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. 5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines. 3:2 The Role of the Adjudicator There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto re-running of a case already considered by an Employer provided of course that Natural Justice and Fair Procedures have been demonstrably followed. The case of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length. Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss or end employment was in the “band of Reasonableness”. i.e. what would a reasonable employer do in a similar situation However, all cases rest on their own facts and particular evidence and these have to be considered next. 3:3 Consideration of the evidence presented and conclusions therefrom. In this case which was closely allied to Adj-00007238 (the TUPE case referred to above) all the evidence both Oral and Written pointed to one inescapable fact. The working relationship between the Parties had broken down to such an extent that both sides wished it to end as painlessly as possible. The Complainant simply did not want to transfer to Town B The Complainant worked 20-hour mornings only week in Town A and the TUPE was to a 20-hour job in town B, some 8 miles away but with a variable pattern of work. The Respondent, it was clear, despite protestations to the contrary, did not really have a job in Town B suitable for the Complainnat. Several efforts were made to resolve this issue but fell down over the amounts of money being offered. Decision making difficulties in the Respondent, an Organisation governed by a committee type structure and a general shortage of funds did not help. Both sides became distracted by the TUPE reference to the WRC which was essentially of a Technical nature and was never going to address the main issue in dispute. It appeared that the Respondent may have got overly optimistic by the decision in their favour in the TUPE case. The case in hand is brought under the Unfair Dismissal Act 1977. Incapacity or Absence by long term illness are recognise grounds for Dismissal. However, the Courts, the EAT and the WRC have all highlighted the need for Fair Procedures to be followed before a Dismissal is actioned. In this case the Respondent letter of 10th September 2018 was in plain English an ultimatum and could not stand up to Legal scrutiny as regards “fair Procedures” – the requests for Mediation/Counselling, following MedWise from the Complainnat were never implemented as good procedure would require. There did not appear to be any opportunity offered to the Complainnat to attend a meeting, possibly professionally represented, to discuss the ending of employment decision. The question of a formal Appeal, against the decision, to a reasonably Independent person, agreed with the Chamber, did not appear to have been offered. Impatience and frustration over a long absence seems to have overtaken good Respondent decision making judgement. Accordingly, considering all the factors above, the Dismissal is Unfair 3:4 Redress. The Unfair Dismissals Act ,1977 is designed to provide Redress for loss of renumeration. Section 7 of the 1977 Act considers Redress and certain points are particularly relevant. The phrase used is that Redress must be “just and equitable having regard to all the circumstances. Section 7 (c) (1)” An issue in this case is that the Complainant was on long term sick leave and therefore unavailable for work thereby, in theory, reducing her eligibility for compensation to a maximum of four weeks renumeration only. Regarding the Long-Term illness question the interesting Legal precedent is the Allen v Independent Newspapers (Ireland) case [2002] ELR 84. This is discussed at some length by Ryan in Redmond on Dismissal Law 3rd edition 2017 at Section [ 24.70]. In essence Ryan argues that the Independent case allowed for the fact that an employer’s behaviours were contributory to the illness of the employee. The MedWise report in this case at section 5.2 of the Medical Report identified that the pressing need was for “the stimulus of stressors is dealt with and resolved.” I took this to allow for the fact that an element of the Complainant’s illness was due to issues not totally in her own control and related to Respondent behaviours. In this case the Tribunal had made a substantial award. However, the Complainnat had lodged a Personal Injuries action, citing Stress issues, against the Respondent on the 28th February 2019. Regarding how this might impact on WRC redress, in this context, I had to also note Ryan’s’ comments in Redmond on Dismissal Law 3rd edition 2017 at Section [ 24.42] regarding the EAT decision in Maryland v Citywest Golf and Country Club UD 1438/2004. Ryan noted at page 557that “The EAT concluded that a claim for psychological injuries resulting in financial loss constitutes a claim for personal injuries under common law and was not properly within its jurisdiction.” None the less regard can be had to “prospective” “loss of Income. Section 7(3) Definition of Financial Loss. Section 7 also references the need for an Adjudicator to have regard to the behaviour of all parties in relation to the Dismissal and their likely contribution to events. In the Respondent’s favour was the clear fact that the Complainant did not want to transfer to Town B and would, from the evidence, been very difficult to persuade to move irrespective of any Employer offers. She had been employed in town A for some 17 years – a considerable period of employment. It was important to note that the Complainant had an open job offer from March 2017 and for whatever reason did not take it up even on, if necessary, a Trial basis. The MedWise report, already referred to, did not indicate a person incapable of a reasonable engagement with her Employer during the late 2017/2018 period. During this period the on off nature of the TUPE case, missed dates etc did not reflect well on the Respondent. Accordingly, having considered and weighed all the various factors in this case especially the behaviours of the parties and considered all the evidence put forward I am making an award under section 7 of the 1977 Act of €7,500 to the Complainant. This equates to approximately 25 weeks gross pay. I have made this level of Award at the lower end of the possible scale to reflect the impact of the behaviour of the parties on the entire situation. The Taxation of this amount to be a matter for discussion with the Revenue Commissioners. |
4: Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Act | Complaint/Dispute Reference No. | Summary Decision /Please refer to Section Three above for detailed reasoning. |
CA-00027041-001 | Dismissal found to be Unfair. Redress of €7,500 ordered. |
Workplace Relations Commission Adjudication Officer:
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