ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027126
Parties:
| Complainant | Respondent |
Anonymised Parties | Administrative Officer | Aviation Company |
Representatives | Denis Keane, Forsa | Employee Relations Manager |
Complaint:
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-00034545-001 | 10/02/2020 |
Date of Adjudication Hearing: 29/09/2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as an Administrative Officer from 16th February 2015 to 11th September 2019. She was paid €36,072 per annum. She has claimed that she was unfairly dismissed because of her health condition. She has sought compensation. The Respondent company has rejected this claim.
Summary of Respondent’s Case: |
The Complainant was employed as a clerical assistant from 16 February 2015 until her contract was
terminated on 11 September 2019. She was the subject of an internal investigation arising from irregular use of the Company’s flexitime working scheme in April 2019. A copy of the draft report was issued to her on 15 April for her comment prior to issuing to the Director HR for a decision on whether disciplinary action was warranted. She absented herself on sick leave from 17 April, her absence was notified to HR by her union representative.
During the period of her sick leave she was referred to the Company’s Occupational Health
advisors on a number of occasions and was deemed as fit to resume duty on 22 July 2019.
However, she continued on sick leave certified by her GP. Due to the conflicting medical opinion an independent second opinion was arranged with a second Occupational Health provider on 1 August 2019. She chose not to attend. She raised issues of workplace allegations with Occupational Health which are unknown to her employer and were never previously raised. Occupational Health confirmed she was fit to meet with her employer to discuss her allegations of workplace issues however she did not attend any meeting scheduled to discuss the issues.
She failed to comply with the Respondent’s absence management policies and procedures and
continually failed to engage with them in their legitimate attempts to enable a return to work.
Respondent’s Position
Flexi users are required to clock into the system when they arrive to work at their desk and
clock out of work when they are leaving work at the end of the working day. Additionally,
flexi users are required to log out for lunch and log back in after lunch and when they are
required to leave the building for business or personal reasons. The user records the reason
on their flexi record and it is authorised by their supervisor/manager and recorded on the flexi
system by HR. The Respondent’s Internal Audit Department identified a potential for abuse of the clerical administration flexible working hours scheme where it was possible that a flexi user could
clock into work for another flexi user from their own workstation. To mitigate against this an
audit trail was put in place to validate the number of users using the same workstation IP address and the report was regularly checked by HR.
In reviewing these records an anomaly was identified for clocking information associated with
her record which showed that she had clocked out remotely regularly and on occasion
had clocked in remotely. This was brought to her attention and specific details of 16 irregular
dates over a 6-week period were provided to her and she was invited to provide an explanation
at a meeting with the Employee Relations Manager (ERM), on 3 April 2019.
At the meeting she advised that she had been given a Company laptop and she admitted
to using the laptop to clock out while on the train home. She stated that she was working on
the hour-long journey home and that she logged out of the flexi system remotely when she had
completed work. She confirmed she had not sought approval for this arrangement from her
manager. She confirmed when asked that there would be an audit trail on the Respondent’s server
confirming that she had accessed its systems during the period of her journey on the
identified dates.
An investigation was conducted by the ERM to establish if this could be confirmed. The
investigation, which was concluded on 12 April 2019, concluded that there was no evidence
of email traffic or any work activity on any of the dates where remote access was logged by
her to validate her claims that she was working between the hours of 17:00 and 18:15
i.e. the period of time after she left the premises and her actual clock out time.
A copy of the draft report was given to her for comment on 15 April prior to the report
being given to the Director HR to decide whether disciplinary action was required. She was asked to provide her comments prior to the close of business on 18 April 2019.
On 18 April her union representative emailed the ERM to advise that she had
been in contact with him and that she had advised him that she will be absent on sick leave for
1 month. He requested that the investigation process be suspended and the ERM agreed to his
request. She was referred to Occupational Health and an appointment scheduled on 26 April was
re-scheduled at her request to facilitate child minding issues. A further appointment
was scheduled for 1 May and following which Occupational Health advised that it
was their considered opinion that she would be fit to resume duty at the end of the 4
week period and that she was fit to meet with her employer to discuss alleged work related
issues that she had disclosed to Occupational Health during the course of her review
appointment.
A meeting was scheduled by the ERM with her and her manager at an off-site location on 9 May to discuss alleged workplace issues, however, she advised she was not available. Her manager’s role in the Company requires him to travel frequently and he was not available the following week. She was due to resume duty on 20 May she was advised that the meeting would be scheduled immediately on her resumption to discuss the alleged workplace issues raised with Occupational Health.
She did not resume duty as expected on 20 May and a further medical certificate
from her GP was submitted by her to HR. A second appointment was scheduled with
Occupational Health on 23 May following which Occupational Health confirmed that she remain unfit to return to work for a further 6 to 8 weeks and was therefore expected to resume duty by 22 July.
A third Occupational Health appointment was scheduled for her on 8 July to
assess whether she would be fit to resume as previously indicated by 22 July, following which
Occupational health advised that she had confirmed that she was suffering from a
generalised anxiety depressive disorder related to allegations of workplace problems. She had confirmed that she had been feeling better over the last 1 to 2 weeks and it was Occupational Health’s opinion that her symptoms should have improved significantly enough to allow her to resume duty in 1 to 2 weeks. It was also confirmed that she had been advised to discuss this recommendation with her GP at her next visit. Finally, Occupational Health confirmed that she was fit to meet with the Company to discuss her workplace allegations.
A copy of the medical report was provided to her and she was advised that a
meeting would be arranged immediately on her expected resumption in 1 to 2 weeks to discuss
her workplace allegations and that she may be accompanied to that meeting by a colleague or
her union representative. A further medical certificate was forwarded to the ERM in the post from her dated 12 July 2019 for a period of one month indicating a continuation of her sick leave for a period up to and including 11 August 2019. The ERM attempted to contact her by telephone
to clarify her medical status however while she answered the telephone she requested
that the ERM could contact her later, however further attempts to telephone her remained
unanswered. Her union representative subsequently contacted the ERM and confirmed
that she had contacted him and confirmed that she will remain absent on sick leave on
her GPs advice. She was advised that an independent referral with a second provider would be
arranged due to the conflicting medical opinion and an appointment was scheduled with a third
medical provider on 1 August 2019. Ms X was advised that she is expected to attend and
failure to attend would result in her suspension from the sick pay scheme. Further a meeting
was scheduled with her and her union representative on 24 July 2019 to discuss her alleged
workplace issues. She did not attend the meeting scheduled on 24 July and she did she attend the
medical appointment scheduled for 1 August 2019. She did not contact her employer to
confirm that she would not be attending either meeting.
Conclusion
From all of the foregoing it is clear that the employment relationship had broken down, She refused to engage with the Company in relation to her allegations of workplace issues, she did not attend for a medical review scheduled for the purposes of obtaining a second opinion due to the conflicting medical reports and breached the Company’s flexible working hours policy and the Company’s absence management policies and procedures and failed to engage with the Company in their legitimate attempts to enable a return to work. The Company has at all times correctly followed its own policies and procedures and denies her claim that she was unfairly dismissed.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent from the 16th February 2O15 until her contract was terminated on the 11th September 2019. An internal investigation took place in April 2019 in relation to anomalies in the company's flexi system. The draft report from this investigation was given her on the 15th April 2OI9. She was certified as unfit for work by her doctor on the 17th April 2O19. During the sick leave she was referred to the Company's Occupational Health advisors. During these meetings she raised a number of concerns in relation to work issues. The Company's Occupational Health advisors believed that she should be fit to return to work on the 22nd July 2019. However, her GP did not agree and continued to certify her as unfit for work. On the certs sent to the Respondent the reason given for the sick leave absence was depression and anxiety, despite this the company sought to both hold meetings with her and refer her for further assessments. Due to her mental health at the time she was unable to attend these meetings. On the 28th August 2019 the Respondent wrote to her indicating that the company were terminating her contract with effect from the 11the September. The union responded asking the company to rescind the letter and asking them to discuss her return to work and that if they didn't do this then the case would be referred to third party. The company responded stating that they intended to proceed with the termination. Complainant’s Position She believes the Respondent acted with undue haste and took no regard of the health difficulties she was going through at the time. Due to this she believes the Respondent has unfairly dismissed her She never had the opportunity to adequately respond to the issues raised in the internal investigation due to her absence from the workplace on certified sick leave. Her original Doctor had since retired. Due to this retirement she transferred to a new GP. She asked her new GP to write a medical report on her. This report was completed on the 14th December. She We wishes to raise a number of points in this report that she believes are pertinent to this case. On the first page of the report the GP summarises their first meeting as follows Date:26.08.19: She presented to me on the 26/08/2019, very upset, alleging that she was being bullied in work. She said that she had been attending her previous GP, who was treating her for Anxiety and depression due to issues she was experiencing in work. She said that her was retiring and that she needed someone to take over her care. She said that her original GP had been treating her with Sertraline 25 mg daily and Xanax 0.25 mg as required and that she needed follow on illness benefit certificates from the end of August 2019. The Complainant told her GP on the day that she has not been working since April 2019. She said that she was being overworked, having to do her colleagues work, that the company was splitting and she felt she was burnt out and in a dark place. She said that she was hearing a male voice saying to her "come to me my child" on repeated occasions and that these stopped after her GP started her on Sertraline. She said that she had seen a Doctor in the Company’s Occupational Health company who told her that her GP was overmedicating her and that she was fit to go back to work. She said she was stressed out and in financial difficulty as her place of work was not paying her and that she could not keep up with her bills. She denied any suicidal / homicidal ideation on the day. On page 2 of the report her GP listed some transcripts of consultations she had with her GP. While all points are relevant she would like to highlight some in particular 16.04.19: "Seen by GP regarding letters she received from her work. She was prescribed Xanax 0.25 mg bid and Stilnoct 10 mg nocte and given a sick note for a month. On 14.05.19 the last two sentences: GP told her to abstain from work and gave her a síck note. She writes that she thought that the Complainant’s anxiety and depression had escalated. 01/08 /19: the GP writes that she ís still unwell and anxious and that she has stopped gettíng paíd since 26/07/20L9. In the medical report the GP then summarises three attendances he had with her. She belíeves the review of the visít on the 16/10/2079 is particularly relevant "Complainant was reviewed on the 16/10 /2019. On the day she complained of her mood being low and said that she was having some death wish. She said that "it would be better if I am not here". She said that she got "sacked from my job on the pretext that she did not fit ¡n. She said she was informed of her sacking by phone and by text. She was crying. She said that she felt awful and worthless. She said that she had stopped her medications two weeks before seeing GP. She said that her sleep was broken, that her concentration was poor, that she had no appetite and that she wished she was dead but had not thoughts of killing herself. She said that her husband and her son were very supportive of her. Her self-esteem was very poor". She also noted the record of the appointments on the 18/L1/2019 and the start of December which shows an improvement in her general health. She did attend a number of appointments with the Respondent’s Occupational Health Adviser. We do note that in their report it states that she is unfit to work but in their view was fit to meet management to discuss her work issues. This was not the opinion of her GP who continued to certify her as unfit for work and meetings. She again wishes to quote from the transcript in the medical report "GP told her to abstain from work and gave her a sick note. She wrítes that she thought that the Complainant’s anxiety and depression had escalated since her vísít from the Company Occupational Health. Following this the Occupational Health Doctor wrote a medical note to her GP. ln that letter he says about her "She ís very depressed (with some psychotic features) tearful, lethargy, low mood etc I really feel she needs to be started on SSRI asap and reviewed weekly. He asked her to see her GP for medication and will review her in 6/8 weeks" She notes that the Occupational Health Doctor states in his report of her visit on the 7th May that she would be fít to attend a meetíng wíth management. However, in his report of her visit of the 23rd May he makes no mention of her ability to attend a meeting and instead states "She is unfít to work. She is currently suffering from a recognised medical illness and is currently quite unwell. She would anticipate a further period of síck leave in the order of 6-8 weeks. She has not arranged a follow up appointment but would be happy to see her agaín should she not have returned to work in I weeks." This in connection with the note the Occupational Health wrote to her GP does not suggest that the Occupational Health Adviser still believed that she was fit to attend meetings with the company.
Conclusion lt is clear that she was not fit to attend work between April 2019 and the termination of her contract by the Respondent. lt is true that she did not attend some meetings with management or with occupational health. This was not through any refusal to attend but due to a combination of advice from her GP and the effects of the medication she was medically prescribed. The report from the Doctor lists the effects the decision of Respondent have had on her health and wellbeing. ln reality she has not fully recovered but as the report states her health has recovered somewhat. She can see no reason why the employer acted with such haste in terminating her contract. At no point prior to the letter of the 28th August had the employer indicated that her employment was in danger. She believes the employer showed scant regard for her health. They acted with great haste while in receipt of medical certs from her GP stating she was unfit for work due to anxiety and depression. As can be seen from the medical report she as medically unwell during the period the company were seeking to refer her to occupational health advisers and seeking to meet her. She believed the company acted with undue haste in dismissing her particularly in light of the fact they were not paying her a wage as they withdrawn her from the sick leave scheme. The attached medical reports show the affects the company’s actions took on her health. The Doctor’s report show that her health has started to improve but it has still not fully recovered. She still attends a counsellor on a regular basis. She did start a new job in December 2019 however she realised that she was not medically ready to return to work and ended up leaving this job. She is now about to start a new job on a two day a week basis and she is confident that her health has improved enough to allow her to do so. On lodging this case she selected both re-instatement and compensation as possible redresses if her claim was successful. However due to the effects this whole episode has had on her health she no longer wishes to have re-instatement as an option if her claim is successful. |
Findings and Conclusions:
Substantive Matters
I note that the Respondent conducted an investigation into an alleged breach of the flexi time system in April 2019. The Complainant was given a draft copy on 15th April 2019 and she went out sick on 17th April 2019. I note that the allegation is that she logged off the system at 6.16pm and alleged that she was working from 5.00pm to 6.15. However, the system showed that she had not accessed the system remotely during these times. This occurred on 16 times so in effect the allegation was that she falsely claimed for working 1.25 hours on 16 occasions which could have an accumulated value of €350 approx. I note that she went out sick on 17th April and she was never available to discuss this investigation with the Respondent company. I note that the Respondent referred her to their Occupational Health on a number of occasions. I note that she was certified fit to return to work after one month but didn’t return. I note that Occupational Health later certified her fit after 6-8 weeks, but she did not return to work. I also note that she did not attend Occupational Health on a number of occasions. I note that at all times her own GP certified her unfit for work. I find that there was a conflict of opinion between Occupational Health and her GP. I find that the Respondent Company referred her to an independent medical adviser who deemed her fit to engage with her employer and union regarding the investigation report. I find that she failed to engage with her employer whereas she did engage with her union representative. I find that she was obliged to engage with her employer and this failure contributed to her dismissal. I note that she raised issues with Occupation Health concerning alleged bullying at work and overworking, which allegedly lead to her stress. I find that she did not raise a formal grievance regarding bullying and the first that the Respondent heard of this was from their Occupational Health Doctor. I find that if the Complainant had issues with bullying then she should have raised them through the Dignity at Work policy. I find that her manager confirmed that she had raised workload and stress with him, but nothing came of it. I find that the reason she was dismissed was because the Respondent became frustrated with her lack of engagement. I find that it was most unusual that she went out sick immediately after she was given a copy of the investigation report. I find that the Complainant failed to properly engage with her employer during her absence. I find that this was the reason why she was dismissed. I find that the Respondent had grounds for terminating her employment due to the lack of engagement. I find that the dismissal was substantively fair. Procedural matters. I find that the Complainant went out sick two days after being given a copy of the investigation report into allegations of abuse of the flexi time system. I find that she was referred to Occupational Health on a number of occasions. I find that the Complainant did not always attend these meetings due to her illness. I find that there was a conflict of opinion between Occupational Health and her GP. I find that the Respondent Company referred her to an independent medical adviser who deemed her fit to engage with her employer and union regarding the investigation report. I find that she failed to engage with her employer which led to their frustration, resulting in the termination of her employment to take effect on 11th September 2019. I find that the Respondent failed to indicate that they were contemplating dismissal. I find that the Respondent acted with undue haste in dismissing her. I find that the Respondent failed to provide an appeal mechanism despite her union requesting the dismissal to be rescinded. For those reasons I find that this dismissal was procedurally unfair. Overall Finding I find that the dismissal was procedurally unfair which renders the dismissal unfair. I find that the Complainant has contributed to her dismissal by her failure to engage with the company concerning the investigation, despite her illness there is an obligation to do so. I find that the Complainant is entitled to compensation. I find that her illness has prevented her from mitigating her loss. She found a fulltime job, but she was not well enough to continue with it. I note that she has recently found a job working two days per week at €15.00 per hour. I find that her contribution to her dismissal must be reflected in the quantum of the award. |
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.
For the above stated reasons, I have decided that this claim is well founded.
I have decided that the Complainant was unfairly dismissed.
I have decided that the Complainant has contributed to her dismissal.
I find that this contribution should be reflected in the quantum of the award.
I also have decided that she has been unable to mitigate her loss due to her illness.
I have decided that the Respondent should pay the Complainant €6,500 in compensation for the unfair dismissal within six weeks of the date below.
|
Dated: 20th October 2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Termination of employment following an absence from work |