Complainant

Respondent

Anonymised Parties

Administrative Officer

University

Representatives

Chris McNairney, H.R. Direct

Ronnie Lawless IBEC

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-00035086-001

06/03/2020

The complainant commenced her employment with the respondent on 11 April 1990.  She worked 37.50 hours per week and was paid €4420.15 gross per month.  In March 2019 the complainant made a complaint to the respondent about adverse treatment by her line manager.  In addition, the complainant had outstanding complaints about her grade and allowances.  Her complaints were unresolved when in August 2019 she became acutely ill.  The complainant claims she was unfairly dismissed when the respondent decided to retire her on grounds of ill-health with effect from 01 November 2019.  She submitted her complaint to the Workplace Relations Commission on 05 March 2020.  The respondent rejects the claim of unfair dismissal and contends the complainant retired by agreement on grounds of ill-health.

The complainant was employed by the respondent for 29 years.  She was a model employee with an exemplary record.  She held the post of Research Financial Support Officer, along with other functions, at the time her employment was terminated.

Background Issues 2019

In September 2016 the complainant’s work situation began to deteriorate when the Director, her line manager, retired and she was assigned additional duties by the Dean.  The professor who was appointed as the new Director and line manager asked her to take on further additional duties and to assume responsibility for his own research accounts.  There was a particularly disturbing incident with her line manager on 25 February 2019 when he made remarks about a colleague and autism.  The complainant met with the Director of HR on 26 March 2019.  At the meeting the complainant was asked to put her issues in writing.  She sent a full account of her issues by e-mail to the Director the following day, 27 March 2019.  The e-mail also dealt with outstanding issues about her grade and allowances.  The Director of HR had indicated the issues would be dealt with promptly, but no action was taken.  The complainant sent another e-mail on 11 April 2019 asking for an update, but she did not receive a reply.  Another incident occurred with her line manager on 07 May 2019.  The complainant again contacted the Director of HR and asked for the situation to be resolved as she felt unsafe given the professor’s aggressive behaviour.  The professor apologised in writing by e-mail on 09 May and asked the complainant to meet for coffee.  The complainant forwarded the professor’s e-mail to HR and again asked for help.  She did not receive a reply.  Because of the pressure at work the complainant became ill.  She was on sick leave from 09 to 26 May 2019 and her doctor certified she was suffering from work related stress. 

The complainant returned to work on 26 May 2019.  She again sent an e-mail to the Director of HR requesting an update and an urgent solution to her situation.  She did not receive a reply.   On 29 May 2019 the complainant received an e-mail asking her to attend an appointment with the respondent’s occupational health doctor on 06 June 2019. 

On 04 June 2019 the complainant received a phone call for a member of the HR office, Ms A, who had been appointed to a liaison role regarding her situation.  Ms A asked the complainant to send her a copy of her job specification, PMDS recommendations and the e-mail she had sent to the Director of HR.   Ms A was to review the documents and she invited the complainant to meet with her on 10 June 2019 at 09.00.

The complainant found Ms A to be sympathetic at the meeting.  Ms A gave an undertaking to the complainant to help in whatever way she could.   Following the meeting the complainant sent Ms A an e-mail setting out the items they had discussed.  Two days later Ms A phoned the complainant and stated their discussion had been informal and as the meeting had taken place outside the core meeting hours it was unofficial and had no standing.

On 21 June 2019 the Director of HR sent an e-mail to the complainant stating that the complaint was to be dealt with under the Anti Bullying Policy and that Ms A was the designated person to deal with the case.  The complainant replied by letter, dated 26 June 2019, setting out in detail all her issues, lack of dignity and respect in the workplace, acting up allowances, job specification (additional duties), and upgrading of post.  A meeting between the complainant and Ms A took place the following day, 27 June 2019.  The complainant and Ms A subsequently exchanged e-mail notes of that meeting.  Ms A stated in her e-mail that the respondent currently did not have a Dignity at Work Policy and so the complaint of repeated inappropriate behaviour would be dealt with under the Anti-Bullying Policy, the acting up allowance and job specification issues would have to be re-submitted under to formal grievance policy and the grading issue was outside the scope of this complaint and could not be addressed at this time.  Resolution options included voluntary mediation or formal investigation.  The complainant was advised of her right to union /colleague representation. 

The complainant, by e-mail dated 02 July 2019, declined the option of mediation and advised Ms A that a formal grievance would be submitted.  Ms A acknowledged this and stated she would revert with a date for a meeting to resolve the grievance.  Ms A then, on 14 July 2019, sent the complainant a copy of a reply from the line manager who was the subject of the respect and dignity complaint.  The complainant’s union representative submitted a formal grievance on 18 July 2019.  The respondent did not reply to the formal grievance submitted by the union on behalf of the complainant.  The grievance issues remained unresolved at the date of retirement and the file was closed.

Sick Leave

In August 2019 the complainant became acutely ill and was hospitalised.  She was diagnosed as suffering from an auto immune condition.  The complainant was on the respondent’s term time leave scheme in August, but she submitted a medical certificate covering the period 26 August to 29 September 2019.

On 09 September 2019 the complainant requested a deferral of a meeting that had been arranged to progress her grievance as she was now on sick leave.  Ms A agreed to reschedule the meeting when the complainant returned to work.

On 12 September 2019 the respondent wrote to the complainant advising her that her entitlement to full sick pay would expire on 10 November 2019 and thereafter she would be entitled to three months half pay.  The letter also dealt with critical ill payment and temporary rehabilitation remuneration.  The complainant received this letter on 16 September 2019.

On 11 September 2019, while the complainant was on certified sick leave and very ill, Ms A phoned her to discuss rearranging the meeting about her grievance.  During the phone call Ms A introduced the idea of ill-health retirement.  Ms A explicitly linked what she described as the stress of taking her complaint forward with the complainant’s illness.  Ms A also raised the death of the complainant’s mother earlier in the year and she went on to suggest that ill-health retirement could be an option that would allow the complainant to put all this behind and was an option that could be explored on a without prejudice basis.  The complainant agreed it would be useful to examine this possibility and asked how this would impact the outstanding grading and acting-up allowance complaints.  Ms A responded they would be looked on favourably.  No other options were explored.

On 17 September 2019 the respondent wrote to the complainant to advise that an appointment was scheduled for 26 September 2019 with the respondent’s occupational health physician.  The letter stated the complainant was required to attend this appointment in accordance with the respondent’s sick leave policy.

Dismissal

The complainant attended the appointment with the occupational health physician as arranged.  On 15 October 2019, the respondent wrote to the complainant and notified her that “the University is retiring you on grounds of ill health with effect from 01 November 2019.”

By 15 October 2019 the complainant had been on sick leave for just seven weeks’ and had not exhausted her entitlement to full sick pay.  The complainant asserts she did not agree to ill health retirement and nor could she as the respondent’s own procedures, as set out in the statutes, make it clear that ill health retirement is a matter for the Governing Body.

When the complainant received the letter of 15 October 2019 she had not been given with any details of what income an ill health pension would provide.  The letter did not provide the complainant with the statutory notice period.

Ms A prepared a report for the respondent’s financial resources committee on 14 October 2019, as is the standard procedure.  In the report she stated, “I recommend in line with statutory provisions (name) be retired on grounds of ill health”.  This report was prepared one day before the letter of dismissal was issued to the complainant. 

The complainant was retired on ill health grounds on 01 November 2019.  The financial resources committee did not meet to consider Ms A’s recommendation until 06 December 2019 and their acceptance of the recommendation was not endorsed by the Governing Authority until 12 December 2019, six weeks after the complainant was retired.

The complainant and Ms A did exchange several text messages but at no time was there an agreement.  The complaint expected to have a meeting where the options would be set out, including the financial implications of ill health retirement.  The complainant asserts that she did not enter into an agreement with the respondent and there is no documentation in relation to the suggested agreement.  The complainant relies on the decisions in Hurley v The Royal Yacht Club [1997] 8 E.L.R. 225 and Sunday Newspapers v Kinsella and Bradley [2008] 19 E.L.R. 53 to support the submission that there was no basis on which it can be said that an agreement existed between the complainant and the respondent.

The complainant was dismissed by the letter of 15 October 2019, which makes no reference to an agreement.

Re-employment

The complainant has met with the respondent’s Vice President and President and has been advised that if the occupational health physician provided appropriate medical evidence she could be re-employed.  The complainant’s own consultant has confirmed that the respondent is currently in remission and she can see no reason why the complainant cannot return to work.  Had the respondent followed their own procedures the complainant’s employment would not have been terminated under its sick leave policy.

Summary

The HR department contacted an ill employee by phone an led her to believe ill-health retirement was her best option.  During this entire interaction the complainant was seriously ill and taking significant medication.  This was known to the respondent when ill-health retirement was raised.

The complainant did not enter into an agreement with the respondent to retire on ill-health grounds.  She was not provided with information about the pension or added years before she received a letter telling her the respondent was retiring her on grounds of ill-health.  The respondent did not comply with its own policy and procedure when the decision was taken to retire the complainant on ill-health grounds.  The complainant was retired on 01 November 2019 before the Governing Body had considered the matter.

The complainant was unfairly dismissed and seeks compensation in redress.

The respondent rejects the claim of unfair dismissal and contends the complainant retired by agreement on grounds of ill health on 01 November 2019.

The complainant commenced employment with the respondent in 1991 and continued in employment until 2019.

Ill Health Retirement

In August 2019 the complainant went on sick leave and submitted medical certificates from 26 August to 30 October 2019.  The medical certificates stated she was suffering from an auto immune illness. 

The complainant submits that she received a phone call from Ms A of the HR department and during the call Ms A raised the question of retirement.  Ms A refutes this statement in that the issue of ill health retirement was raised by the complainant.  Ms A phoned the complainant as she had received a request by email from the complainant who was looking for advice.  The advice sought was regarding the complainant’s decision to avail herself of ill health retirement.  That phone call initiated the ill health retirement process.

As the complainant had indicated she would like to explore the options of retiring on the ground of ill health an appointment with the occupational health physician was arranged for 26 September 2019.  The complainant, by e-mail, thanked Ms A for organising the appointment regarding her assessment for ill health retirement and for her support during this difficult time.

The format of assessment for retirement on the ground of ill-health is that the person has to request same and the occupational health physician ensures that the staff member is aware of the consequences and implications of ill health retirement.

The occupational health physician makes a decision based on information provided by the staff member.  The complainant attended the appointment on 26 September 2019 and the physician decided the following: “Having reviewed the medical evidence and in considering the criteria for permanent incapacity, in my opinion (name) meets the medical criteria for early retirement on the grounds of ill health.”

The recommendation from the occupational health physician was processed by HR and the Pension Office.  There was correspondence between the Pension Office and the complainant regarding entitlements and added years.  At no point did the complainant indicate that she was unhappy with the recommendation and wished to have it reviewed.  The complainant had full access to union representation throughout this process.

Added years were approved by the DES and the complainant was notified of the calculations.  Payment for outstanding annual leave was arranged.  Several e-mails about returning to work were exchanged between HR and the complainant and she was advised that if her condition improved she could be re-engaged if there was a recommendation from the occupational health physician to do so. 

The complainant received all payments due to her in October and November 2019.  At no point did the complainant refer to an unfair dismissal.

The respondent provided a statement from the occupational health physician, dated 14 January 2021, confirming she assessed the complainant on behalf of her employer for ill health retirement on 26 September 2019.  The physician states that she was fully satisfied that the complainant understood and consented to the process.  The final paragraph of the statement is as follows: “I formed the opinion, that she did meet the medical criteria for retirement on the grounds of ill health and I issued a report to that effect to her employer.”

 Position Summary

The respondent refutes the claim that the complainant was dismissed.  Rather the respondent supported the complainant’s application for early retirement on the grounds of ill-health.  At no stage was the complainant advised that her job was to be terminated and no evidence has been provided to support her claim.

The option to re-engage in employment is open to the complainant and is provided for in the Department of Education & Skills policy on ill-health retirement. (Circular 06/12).  The complainant was advised of this by e-mail, dated 25 November 2019, from Ms A.

At no point did the complainant object to the ill health retirement or seek an appeal on the recommendation made by the occupational health physician.

In February 2020 the complainant provided the respondent with a copy of a report from her treating consultant stating that she was in remission and although a relapse was possible she saw no reason why she could not return to work.  The Director of HR then wrote to the complainant, on 11 March 2020, offering to arrange an appointment with the occupational health physician to assess her ability to work and, depending on the outcome, the respondent would facilitate a return to work as soon as possible.  The complainant did not avail herself of the offer of an appointment with the occupational health physician.

The respondent rejects the allegation that the complainant was dismissed unfairly or otherwise.  This was a process of retirement on the grounds of ill health and the option to re-engage in employment with the respondent is still open to the complainant as per Circular 06/12.  The claim should be rejected as having no merit as the complainant was never dismissed by the respondent.

CA-00035086

Complaint under section 8 of the Unfair Dismissals Act, 1977.

Section 6 of the Act provides:

Unfair dismissal. 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall

be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The complainant claims to have been unfairly dismissed but the respondent contends there was no dismissal.  The first issue for me to decide is was the complainant dismissed.

Dismissal is defined in Section 1 of the Act as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would

have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise

ascertainment), the cesser of the purpose;

The complainant gave evidence and explained that she became acutely ill in August 2019, suffering from an auto immune condition. 

She stated she had experienced a lot of difficulty at work with her line manager, particularly since February 2019.  She had submitted a grievance and the reason for a telephone conversation with Ms A on 11 September 2019 was to ask for advice in progressing her grievance.  Her grievance covered the four issues, as set out in detail in her letter of 26 June 2019, lack of dignity and respect in the workplace, acting up allowances, job specification (additional duties), and upgrading of post.  Ms A was the person designated by the Director of HR to deal with the grievance.

The complainant stated that during the phone conversation Ms A raised the issue of ill health retirement.  In the conversation Ms A referred to the stress of dealing with the grievance and the death, earlier in the year, of the complainant’s mother.  The complainant stated that Ms A indicated that she (the complainant) did not need the stress of dealing with the grievance and retirement might be the best for her.  The complainant was not told that the line manager about whom she had complained was moving to another area on 27 September 2019.  The complainant stated that on the recommendation of HR she agreed to meet with the occupational health physician.  The complainant stated she asked about the grading and allowance issues and was told they would be looked at favourably, however they were left unresolved.  The complainant said she was ill at the time of the conversation, on a lot of medication and only wanted a safe working environment. 

In response to questions from the respondent’s representative about a series of text messages in October 2019 the complainant stated that the issue of ill health retirement was raised when she was just three weeks into her illness and on medication.  It was she believed a time when she should not have been making life changing decisions.  She thought she was working with Ms A to find a resolution to her issues, but the respondent was not working in her best interests.  She was very ill at the time and did not want to stop working. 

Ms A gave evidence and stated that the complainant had asked her for advice on ill health retirement in the phone conversation on 11 September 2019.  She stated she had an empathetic conversation with the complainant and that she facilitated the ill health process.

Ill Health Retirement Process

There is a conflict in the evidence as to how the issue of ill health retirement came to be discussed in the phone call on 11 September 2019.  I cannot say whether the complainant or Ms A was the first person to introduce the subject into the conversation.  However, having considered the written and oral submissions I am satisfied, on the balance of probabilities, that the complainant agreed to commence the process for approval for ill health retirement.  The complainant agreed to be assessed by the occupational health physician.

I note the statement of the occupational health physician, dated 14 January 2021, that the assessment process takes the form of a direct consultation, review of medical reports and health records sourced and submitted by the applicant in support of their application and a review of appropriate prognostic statistics and literature of the health issues(s) involved as appropriate.  The statement includes the following:

“I was fully satisfied that (the complainant) understood and consented to the process.  (The complainant) appeared to be an accurate and articulate historian.

There was a detailed discussion in relation to her underlying chronic health complaints.  There was a substantive discussion in relation to the basis, motivation and implications of her decision to seek early retirement and of her retirement plans.”

 It is clear for this statement that the complainant not only agreed to an assessment but provided medical and health records and in the opinion of the physician understood the process.

The medical assessment took place on 26 September 2019 and the report was issued to the respondent on 04 October 2019.  The opinion of the occupational health physician was that the complainant met the criteria for early retirement on the grounds of ill health. 

A letter was sent to the complainant on 15 October 2019 stating the following: 

“The University has received a report from (name) with regard to your current state of health.  (name) has recommended that you be retired on the grounds of ill health.

Therefore the University is retiring you on grounds of ill health with effect from 1st November 2019.”

At that time the complainant had not been provided with any information about the amount of pension she might receive, or any other benefits for her spouse and family.  The initial pension figures were sent to the complainant two days later, 17 October 2019.  The complainant replied by letter, dated 22 October 2019, indicating her decision to take a reduced pension and a lump sum, excluding the potential added years.  The final pension figures including added years were provided to the complainant on 13 November 2019.  The complainant’s letter of 22 October 2019 raised no objection to retirement or queried the benefits that would be provided to her.

I note that Statute CLXI of the University, Chapter 1, Paragraph 10 (a) states: “In the event of a participant of this Scheme ceasing to hold office before the age of sixty-five due to incapacity by reason of infirmity of mind or body and having by medical evidence satisfied the Governing Body that the incapacity is likely to be permanent, he shall be eligible to receive a pension and lump sum calculated in accordance with the provisions of Paragraph 14 of Appendix 1 of this Statute.”  A recommendation that the complainant be retired, in line with statutory provisions, on the grounds of ill health was sent to the Finance Resource Committee on 14 October 2019.  On 05 December 2019 the Committee noted the report and in line with statutory provisions, agreed to recommend the early retirement due to ill health.  The Governing Body approved the recommendation on 12 December 2019, some six weeks after the complainant retired.   The respondent did not provide an explanation as to why a recommendation, based on the report from the occupational health physician, was not sent to the Finance Resource Committee and the Governing Body for approval before the ill health retirement was implemented.  Why the respondent moved so quickly to implement the retirement is unclear as the complainant had not yet exhausted her sick pay benefits.  It raises the suspicion that it might have been convenient for the respondent to close the file on the complainant’s grievance.  However, I am satisfied, on the balance of probabilities, that the complainant agreed to and actively participated in the ill health retirement process.

The submissions included a series of text messages exchanged between the complainant and Ms A in early October 2019.  I note that the complainant asked Ms A should be tell the Dean she was awaiting the decision on ill health retirement.  Ms A responded yes please let him know you are awaiting the decision.  In another text the complainant thanked Ms A for calling her and wrote “It is a big decision but I know deep down it’s the right on (sic) for my health and recovery.”  These text messages make it clear that the complainant not only agreed to the assessment process but that she had decided to apply for ill health retirement.

I am satisfied that the complainant agreed to and actively participated in the assessment process with the occupational health physician.  I am satisfied that the complainant decided to apply for ill health retirement.   I note that the complainant did not raise any objection when she was notified, on 15 October 2019, that she was being retired on grounds of ill health.  I accept that the complainant was ill at the time, but she was able to decide on her benefit options (letter of 22 October 2019), submit her leave sheet for payment of outstanding leave to be processed and she was able to query her entitlement to added years and the pension figures provided to her. 

The complainant submitted that the issues relating to agreed terminations were determined in Hurley v Royal Yacht Club [1997] 8 E.L.R. 225 and Sunday Newspapers Ltd v Kinsella and Bradley [2008] 19 E.L.R. 53.  Both cases dealt with compromise agreements where employment was terminated.  No compromise agreement arises in this case.  The complainant unfortunately developed a serious medical condition.  It was part of her conditions of employment that in such circumstances she could avail herself of retirement on grounds of ill health having met the medical criteria. 

In February 2020 the complainant provided the respondent with a copy of a report from her treating consultant stating that she was in remission and although a relapse was possible there was no reason why she could not return to work.  The Director of HR then wrote to the complainant, on 11 March 2020, offering to arrange an appointment with the occupational health physician to assess her ability to work and, depending on the outcome, the respondent would facilitate a return to work as soon as possible.  The complainant did not avail herself of the offer of an appointment with the occupational health physician.  The respondent at the hearing stated that this option remains available to the complainant.

I have carefully considered the submissions, documents submitted by both parties and the oral evidence and I am satisfied that the complainant agreed to and actively participated in the assessment process with the occupational health physician.  I am satisfied that the complainant applied for ill health retirement.  The complainant acknowledged in her text messages that while it was a big decision, it was the right one for her health and recovery.  I am satisfied, on the balance of probabilities, that the complainant was not dismissed.  I find that the complainant was retired on grounds of ill health.  There was no unfair dismissal.

CA-00035086

Complaint under section 8 of the Unfair Dismissals Act, 1977.

I have carefully considered the submissions, documents submitted by both parties and the oral evidence and I am satisfied that the complainant agreed to and actively participated in the assessment process with the occupational health physician.  I am satisfied that the complainant applied for ill health retirement.  I am satisfied, on the balance of probabilities, that the complainant was not dismissed.  I find that the complainant was retired on grounds of ill health.  There was no unfair dismissal.

Unfair Dismissal

Ill health retirement