UDD2123

1.Appeal of an Adjudication Officer's Decision No(s)ADJ-00015888 & CA-00020537-001

BACKGROUND:

2.The worker appealed the Decision of the Adjudication Officerto the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a virtual setting took place on 23 March 2021.
The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Maria Neary (hereafter the Complainant) against an Adjudication Officer’s Decision given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly and or constructively dismissed by her former employer, Department of Employment Affairs and Social Protection (hereafter the Respondent). The Adjudication Officer dismissed the complaint.

Background

The Complainant commenced employment with the Respondent in October 2012 as a Clerical Officer and had been absent on sick leave since October 2014. She was certified as fit to resume work on the 3^rdof March 2018. The Respondent then engaged with the Complainant in respect of her return to work. There followed a meeting and an exchange of emails/letters in respect of the Complainant’s return to work. This cumulated in a letter of 9^thMay where the Respondent advised the Complainant that if she did not attend for work on the 31^stMay 2018 she would be deemed to have resigned. The Complainant did not respond to that letter nor did she attend for work on the designated date. By letter of 18^thof June 2018 the Complainant was advised that the Respondent now regarded her as having resigned with effect from 1^stJune 2018. It is the Complainant’s submission that she was dismissed.

Dismissal is in dispute in this case therefore if falls to the Complainant to prove that a dismissal as defined by the legislation occurred.

Summary of Complainant’s case

The Complainant was absent from work on sick leave from 8^thOctober 2014. Her GP certified her fit to resume work with effect from 3^rdMarch 2018. This return to work was supported by the Civil Service Occupational Health Department who recommended that a thorough return to work meeting with local management take place and that she be facilitated with a phased return to work.

Ms Donovan on behalf of the Respondent submitted that the Act of termination was set out in the letter of 18^thJune 2018 and that the contract was terminated by the Respondent when the Respondent deemed her to have resigned. Ms Donovan directed the Court toBirch v University of Liverpool[1985] I.C.R. 470 where it was held that the Court should look at the substance rather than the form of the transactions between the parties . Ms Donovan relying onO’Reilly v Minister for Industry & Commerce[1997] E.L.R.48 submitted that the transaction cannot in substance be other than a dismissal. Ms Donovan also submitted that if it was not an unfair dismissal then it must be a constructive dismissal. It was the Complainant’s submission that it was open to the Respondent to take disciplinary action other than dismissal against the Complainant for her failure to return to work on the designated date.

Summary of Respondent’s case

There was no dismissal in this case. The Respondent sought to engage with the Complainant in respect of her return to work after she had been certified fit to return with effect from 3^rdMarch 2018 following a long absence. The Respondent met with the Complainant off site on

the 14^thMarch to discuss her return to work and agree a date for her return. The Complainant was accompanied by her Union Official at the meeting. The Complainant was very vague about her return to work. The Respondent outlined for her how the office operated and that there had been changes since she last worked there. The Respondent invited the Complainant to visit the Office in advance of her return. On the 22^ndof March 2018 the Respondent sent an email to the Complainant headed resumption of work which noted that she had met with Ms Flynn and asked her to indicate the date on which she would be available to resume work. The Complainant did not respond to that email. The Respondent wrote again by letter of 5^thApril 2018 advising the Complainant that failure to make contact would result in the Respondent considering that she had abandoned her post. The Complainant responded by email of the 13^thApril 2018 but did not indicate a date when she would resume duty. The Respondent by return email on the same date (13th April 2018) acknowledged receipt of her email and reminded the Complainant as per earlier correspondence that a return-to-work date, had to be agreed that day otherwise she risked being considered as having abandoned her post. The Respondent did not receive a reply to their email of the 13^thApril 2018 and wrote again to the Respondent on the 9^thof May 2018 advising that if she failed to return to work on the 31^stMay 2018 or an agreed alternative date that it would be taken that she did not intend to return to her post.

The Respondent clearly indicated that failure to return to work on the 31^stmay 2018 or an agreed alternative date would be taken as her formal resignation. The Respondent did not receive a reply to that correspondence, nor did the Complainant attend for work on the designated date. The Respondent operated on the basis that the Complainant was not resuming her employment. By letter of the 18^thJune 2018 the Respondent advised that as the Complainant had failed to resume duty on the 31^stMay 2018 she was regarded as having resigned from her post as of 1^stJune 2018. The Complainant responded to that letter on 2^ndJuly 2018 nearly three months after the Respondents email of the 13^thApril advising her if she did not provide a date for return to work she would be considered to have abandoned her post. This was the first correspondence the Respondent had received form the Complainant since 13^thApril 2018 and it came a month after the Complainant’s employment had ended. It is the Respondent’s submission that they could not be expected to keep the Complainant’s post open indefinitely. She had been certified fit to resume work on the 3^rdof March she had failed to do so and failed to engage around an agreed date for her resumption. There was no dismissal the Complainant had failed to return to work.

The law

Section 1 of the Act defines dismissal in the following manner

		“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,

Issue for the Court

Dismissal as a fact is in dispute therefore it is for the Complainant to establish that a dismissal as defined by the Act had occurred.

Discussion

The Complainant’s case is that she was unfairly dismissed and that the decision by the Respondent to determine that her failure to report for duty on 31^stMay 2018 or notify then of an alternative date was her resignation is incorrect. The Complainant submitted that the Court should look at the “substance rather than the form of the transactions”between the parties and sought to rely on case law as set out above.

The Court having reviewed the cases citied do not believe they are of assistance to the Complainant’s case. The substance of the transactions between the parties was the Respondent engaging with the Complainant in respect of her return to work and the Complainant failing to engage by not providing a date for her return to work, and then from 13^thApril 2018 failing to communicate with the Respondent at all.

The Court having considered all the submissions and caselaw provided does not accept that the Respondent’s actions in meeting and communicating with the Complainant around her return to work could be considered a “termination” in line with the Act or that the Respondent was required to keep her post open indefinetly. The Court finds that Complainant’s employment came to an end on foot of her failure to report for duty on the 31^stMay 2018 or engage with the Respondent around an alternative date for her return to work. In the circumstances the Court determines that there was no dismissal . The Complainant’s appeal fails.

The decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
14 April 2021	Deputy Chairman