ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00026150

Parties:

Complaint(s):

Date of Adjudication Hearing:  06/04/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] following 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

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

BACKGROUND

The claimant was employed from the 18th July 2016 until the 12th July 2019

She was paid €2567 gross per month working 39 hours per week

The claimant submits that she was Unfairly Dismissed which is disputed by the respondent

Summary of the respondent’s position

It was acknowledged that the complainant was employed from the 18th July 2016 and commenced the role of Order Support Specialist from the 19th January 2018

The complainant’s employment was terminated due to her continuing absence from work. The complainant was advised on the 12th of July 2019 that her employment was being terminated with 4 week’s notice and employment ended on the 12th August and not on the 12th July as set out in the WRC complaint form.

The complainant’s gross pay was €2567.08 per month and €2100 nett as set out in the WRC complaint form.

The respondent supplied dates and details the complainant’s absence from 22nd February 2017 to the 3rd September 2019. Apart from a period of two weeks at the end of August 2018 /beginning of September 2018 the complainant was continually absent from work since the 22nd March 2018 until 12th July 2019, a period of 15 months with no return-to-work date being provided by the complainant.

The Complainant was regularly assessed by the company doctor to determine whether she was fit to return to work. The consistent opinion from the doctor was the complainant was unfit for work due to non-work-related reasons and there was no reasonable work accommodation that could be considered to achieve a return to work.

The Respondent submitted that they did seek to accommodate the complainant in another department where the complainant would not be dealing directly with customers and they were able to provide her with a position in their Payment Team commencing in January 2019.

The complainant contacted her manager on the day before she was due to commence that new role on the Payment Team to say she was unable to work as she was unwell.

The complainant has never returned to work and has never taken up the position which was provided to her by the respondent.

The respondent denied that the Complainant was Unfairly Dismissed. Any dismissal of the complainant was fair in that she was unable to fulfil her obligation to attend work with the respondent, was unable to provide a return-to-work date within a reasonable period, was unable or not prepared to take up alternative employment provided by the respondent.

While it was acknowledged by the respondent that it did not complete the appeal process initiated by the Complainant due to an oversight, it is the position of the respondent that any appeal would have resulted in the same outcome given the complainant remained unfit for work and unable to provide a return-to-work date and was ultimately unable to fulfil the terms of her contract of employment.

It was submitted that in the event the adjudicating officer finds the complainant to have been unfairly dismissed the respondent submits the complainant is at no financial loss as she is unfit for work.

It was further submitted that the complainant has failed to mitigate her loss by not seeking or taking up alternative employment and the respondent awaits proof of all attempts made by the employee to take up alternative employment

Summary of the Complainant’s position

The complainant accepts that she was often absents through illness, and this has been certified by the Respondent’s Doctor. It was stated that some of her co-workers never accepted her as a team colleague and this did not help to speedy recovery from illness. The position the complainant held was very stressful and the opportunity to move to an invoicing job was accepted and welcomed by the complainant. The complainant was disappointed to be dismissed before she had an opportunity to show her capability in this department. The respondent told her that she was being dismissed because she was unfit for work, and this was backed by medical evidence.

The complainant believes that as soon as she had recovered from her illness and taken up her new position that she would have proved herself an asset to the respondent and she was deeply disappointed that she was not given an opportunity in this regard

The union wrote to the respondent on the 15th July and lodged an appeal. The basis of the appeal was that the dismissal was premature, as the complainant was confident that her medical team would shortly “deem her fit to return to work”.

The respondent failed to reply to the letter of appeal and the union again wrote to the respondent on the 27th August, asking that her right of appeal would be assured.

The respondent responded to the complainant directly and stated that her appeal was being sent to an independent Person for consideration

The complainant was never given the opportunity of appealing the decision to dismiss her.

Findings

The complaint was received by the WRC on the 18th December 2019.

I find based on the evidence that the complainant’s absentee record was not disputed.

I find that the complainant was paid 4 week’s notice from the 12th July 2019.

I find that the respondent did offer the complainant a new role with the Invoice Payment Team in January 2019 where she would have no interaction with the customers. I find based on evidence that the complainant never took up that specific role due to her being unfit for work.

Based on the evidence the complainant was unable to give a return-to-work date to the respondent. `

I find the complainant was promised an appeal which never took place. The respondent accepts that this was the case however they submitted that the complainant’s absent record the result would be the same.

I find in the complainant submission that she may have been fit to return to work on that basis I failed to understand why she did not give the respondent an approximate date

I find the failure of the respondent to provide the complainant the opportunity of an appeal against the decision to dismiss her in beach of the respondent’s own procedures

Mitigating loss

I find based on evidence that complaint submitted names of different company’s where she applied for positions.  I find that no evidence was presented to say that she had been available for work at that time.

I find that the complainant started a 200-hour Yoga Teaching |Training Course in January 2020 for 200 hours for one weekend in four Until November 2020

I find the complainant did take up employment on the 17th August 2020 on a contract until the 12th October 2020 and from the 26th October 2020 until the 23rd April 2021

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.

On that basis I find that the complainant was unfairly dismissed however I find that her absence contributed to her dismissal I am awarding her 3 month’s pay i.e.  €7700 gross.

Dated:  20th August 2021 

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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