Complainant

Respondent

Anonymised Parties

Office administrator

A distribution company

Representatives

None

Rosemary Mallon BL instructed by OBH Partners

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-00027918-001

23/04/2019

The complainant was dismissed from her employment with the respondent as she could not attend work. This was due to post-natal depression. The complainant asserts that the dismissal was unfair, while the respondent asserts that it was not unfair as the complainant was not fit to attend work.

The complainant outlined that it was unfair for the respondent to dismiss her. The complainant said that she had been the office administrator, and this involved paperwork, invoices, customer service and some accounts. She acknowledged receiving the contract of employment, but she did not receive the staff handbook.

While there had been a meeting on the 9th November 2018, she was not supplied with the minutes of the meeting. She disputed the accuracy of the minutes now presented. She outlined that the manager wanted to know how she was and told the complainant that her job was open and waiting for her. She brought a friend to the meeting, which was casual, and they discussed children. The manager said she was making sure that the complainant was right and said that her job was open. The complainant’s friend confirmed this recollection of the meeting.

The complainant said that while the minutes of the January 2019 meeting were emailed to her on the 5th February 2019, she never said that she was happy for her employment to end. The respondent said that they had to provide certainty to the employee who had replaced the complainant. The complainant said that this was part of the discrimination.

The complainant said that the second meeting was at short notice and her friend could not take the day off from work to accompany the complainant again. The respondent never asked for medical evidence and there was no conversation about the complainant going back to work on different terms. She said that she did not ask again for reduced hours as the manager had said ‘no’ to her first request.

The complainant said that she would love to go back to work for the respondent. There was no medical follow-up prior to her dismissal. The complainant said that she was returning to full health and, as confirmed by her doctor, would be ready to work from the 1st September 2019.

In reply to the respondent, the complainant said that the staff handbook was not available in the office. She said that there was no informal meeting with a manager. The complainant had popped into the office in June or July with her son. She asked the manager whether she could work part-time, and this manager said ‘no’. The handbook was not available in the office. She said that the respondent did not accommodate her return to work and all their letters referred to her employment being under threat. She said that she could not afford legal representation for an appeal.

The respondent outlined that copies of the staff handbook were available in the office. The respondent had met the complainant informally in September 2018 where the complainant indicated that she would not be able to return to work because of childcare issues. The complainant asked for a letter to say she had been dismissed to avail of social welfare, but the respondent declined to provide this.

The respondent outlined that in its letter of 9th May 2018, the respondent was already stating that the complainant’s future employment was an issue. This is repeated in the letter of the 14th August 2018, which also refers to occupational health. It submitted that the minutes of the meeting are accurate. The letters had from the beginning indicated that the complainant’s future employment was in issue so there was no undertaking that her job would be kept open. In respect of the minutes of the meeting of the 16th January, the complainant could not give a date she would return to work, so there was an understanding as opposed to ‘happiness’ that her role would end.

The respondent highlighted that the complainant had not availed of the appeal and she could have raised issues in the appeal. It submitted that the complainant was not unfairly dismissed and there was no estimate of when she could return to work. She has not provided the certification of being fit from the 1st September 2019. It also said that the complainant did not incur financial loss arising from the dismissal up to the 1st September 2019. She would be expected to mitigate her loss, in particular as there are so many administrator roles available at this rate of pay.

The respondent said that there was a second informal meeting where the complainant asked for a loan. It accepted that the complainant submitted sick certs right up to the date of dismissal. The respondent had sought whether there was any accommodation to allow the complainant return to work. The invitation of 9th January specifically refers to the complainant’s future employment, so why did not the complainant immediately say that she had the reassurance that her job would be kept open. Previous meetings had been adjourned at the complainant’s request and she could have requested the same for the January meeting.

The General Manager said that the complainant never asked to see the staff handbook and there were two or three copies in the office. During her maternity leave, the complainant had come to the office on two occasions. The complainant asked for a loan and the respondent agreed to pay all the holiday pay in advance. When the complainant was due back in September, she said that she was not able to work full-time.

The General Manager said that she spoke of supporting the complainant at the meeting of the 9th November. This was the first welfare meeting. They sat for about an hour and chatted about the children. The complainant did not dispute what the company doctors were saying, and the minutes are accurate regarding the formal part of the meeting. The complainant never gave an indication that she was fit to return and never asked for reduced role to accommodate her return.

The General Manager said that the complainant had not sought to adjourn the January meeting and said that she understood what was going on. The complainant never put forward any other medical evidence or a basis for her to return to work. The invitation letter invited the complainant to provide any such information. The complainant’s request for part-time hours related to childcare as opposed to her illness.

Contours of the complaint

Initially, the complainant submitted complaints pursuant to the Unfair Dismissals Act (assigned CA-00027918-001) and the Employment Equality Act (assigned CA-00027918-002).

The latter complaint related to ‘discrimination/equality/equal status’. In the complaint form, the complainant selected the following contraventions: ‘discrimination on the grounds of gender’, ‘discrimination by reason of family status’, ‘discrimination by reason of disability’ and that ‘the respondent treated me unlawfully by discriminating against me in dismissing me for discriminatory reasons’.

The complainant selected four of a possible 20 types of discrimination prohibited by the Employment Equality Act. She indicated that her claim related to three separate grounds: gender, family status and disability (two of which, of course, stem from EU Directives).

As there was a complaint of discriminatory dismissal within this one complaint, section 101(4A) of the Employment Equality Act was applied. Following receipt of the letter of the 8th May 2019, the complainant emailed on the 15th May 2019 to indicate withdrawal of the Employment Equality complaint. This withdrawal was confirmed to the respondent by correspondence of the 31st May 2019.

Section 101(4A) provides:

“(4A) (a) Where an employee refers — (i) a case or claim under section 77 , and (ii) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977. (b) In this subsection — ‘Act of 1977’ means the Unfair Dismissals Act 1977; ‘dismissal’ has the same meaning as it has in the Act of 1977; ‘relevant date’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.” [my underlined emphasis]

It is clear that the section 101(4A) prevents a claimant pursuing a claim of unfair dismissal and a claim of discriminatory dismissal. The complainant, however, lodged a complaint of discriminatory dismissal but also, three other complaints where she asserted that discrimination had occurred. If those claims related to acts or omissions other than her dismissal, then they could not fall within the ambit of section 101(4A). As underlined above, this provision is explicit that it only relates to dismissal.

I appreciate the position of the respondent. It received the letter explaining that one of the two complaints were withdrawn. It attended the adjudication on this basis.

Given that section 101(4A) can only have application to discriminatory dismissal, it was necessary for me to explore with the complainant at the adjudication whether she was claiming any act of discrimination other than her dismissal.

If the complainant was claiming that there was an act of discrimination other than dismissal, then such a complaint would remain live as it could not have been captured by section 101(4A).

At the outset of the adjudication and in line with the duty ‘to inquire’, I explained to the parties, in particular the complainant, why I was exploring this issue. Obviously, were I to reinstate the Employment Equality complaint, there may have been steps required to ensure fair procedures for the parties (for example, an adjournment).

During the hearing, I asked the complainant whether she was saying that there was any discriminatory act outside of the event of her dismissal. We discussed the various events that had occurred, and she said that the only act of discrimination she was saying happened was the dismissal. This is clearly captured by section 101(4A) and I, therefore, proceeded with only the Unfair Dismissal claim.

Working Time entitlements

During the hearing, I raised the issue of the complainant’s working time entitlements accrued while on sick leave. The respondent said that it would look into this matter.

The complainant’s entitlements relate to the period she was on sick leave (I take it she was paid for public holidays and annual leave while on maternity leave). The complainant commenced certified sick leave on the 4th September 2017, and this continued until the date of her dismissal of the 22nd January 2019.

Per sections 19 and 20 of the Organisation of Working Time Act, the complainant accrued annual leave from the 4th September 2017 to the end of the statutory leave year on the 31st March 2018 (i.e. this complaint is within 15 months of the end of the leave year). She accrued annual leave from the 1st April 2018 to the date of dismissal of the 22nd January 2019.

After the hearing and before completing this decision, I corresponded with the parties to clarify whether the complainant’s working time entitlements accrued during sick leave had been paid to her. By email, the respondent’s solicitor set out that this amount was paid to the complainant on the termination of her employment. This email was forwarded to the complainant and she replied that she had nothing to add.

Given that the complainant was paid her accrued working time entitlements, it is not necessary for me to address this issue in this decision.

CA-00027918-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment began on the 25th May 2015. She worked as an Office Administrator and was successful in this role. She was due to return from maternity leave in September 2017 but could not do so because of post-natal depression.

Occupational health reports were obtained in June, July, August and October 2018, confirming that the complainant could not return to work because of her ill-health. The respondent met with the complainant on the 9th November 2018 and again on the 16th January 2019 regarding the complainant’s fitness to return to work.

The well-established test in assessing a dismissal on grounds of capacity was set out in Bolger v Showerings (Ireland) Ltd [1990] ELR 184. This stated that the onus is on the employer to show:

“1. That it was the incapacity that was the reason for the dismissal

2.The reason was substantial

3.The employee received fair notice that the question of his dismissal for incapacity was being considered; and

4.The employee was afforded an opportunity of being heard.”

There can be no doubt that the complainant’s illness and her inability to return to work was the reason for the dismissal. The letter of dismissal (22nd January 2019) states ‘I must inform you of the organisation’s decision to terminate your contract of employment due to incapability.’ Earlier in the letter, the respondent refers to the complainant seeing ‘no prospect of a return to work in the foreseeable future.’

Unfortunately, the reason for the complainant’s inability to return to work was substantial. The medical reports point to ‘an ongoing significant psychological illness’ and in October 2018, that the complainant ‘is unfit for work at present and will not be fit for at least 6-12 months from now.’

It is a sad fact that the complainant’s illness was ongoing through 2017, 2018 and much of 2019. The four occupational health reports and the 13 illness certificates indicate that there was no prospect of the complainant being able to return to work, part-time, full-time or at all in the foreseeable future. This was a substantial matter and also the substantial reason for the respondent’s decision to end the employment relationship.

The complainant was due to return from maternity leave in September 2017. On the 9th May 2018, the respondent wrote to the complainant regarding her return to work. The letter states ‘if you are not medically fit to return to work the company will, unfortunately, need to consider ceasing your employment’ but also that she would attend a company doctor for an opinion ‘when, if ever, you may be expected to return to work and whether there is any reasonable accommodation which could be made for you to facilitate your return to work.’

The respondent’s letter of the 14th August 2018 concludes ‘as stated previously, it may be necessary for the Company to consider ceasing your employment.’ This is in the context of asking the complainant to attend an occupational health assessment to supplement the medical certificates submitted. The complainant’s ‘ongoing employment incapacity’ was further referenced in the respondent’s letter of the 26th October 2018.

The respondent’s letter of the 7th January 2019 states ‘the purpose of this meeting is to make a decision as to the viability of your continued employment with this company. I must advise you that a potential outcome of this meeting may be termination of your employment due to incapacity to fulfil the contract of employment.’

The minutes of the meeting of the 16th January 2019 refer to the likely ‘next step’ being the termination of the complainant’s employment and that the complainant understood this. I accept that the complainant was not ‘happy’ with this outcome as suggested in the minutes.

It is clear from the above that the complainant was given fair notice that the respondent was considering her dismissal on grounds of incapacity. The complainant was afforded the opportunity to address these issues, but she was unable to return to work part-time, full-time or at all. It follows that the respondent has met the onus set out in Bolger v Showerings (Ireland) Ltd and that the respondent has discharged the burden of proof to show that the dismissal was not unfair. It follows that the complainant was not unfairly dismissed.

CA-00027918-001 Unfair Dismissals Act

For the reasons set out above, I decide that the complainant was not unfairly dismissed by the respondent.

Unfair Dismissals Act / incapacity dismissal / Bolger v Showerings (Ireland) Ltd [1990] ELR 184

Employment Equality Act / application of section 101(4A)