Complainant

Respondent

Anonymised Parties

An Intern Support

A Healthcare Provider

Representatives

Gerard Kennedy SIPTU

 Line Manager

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-00033282-001

19/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033282-002

19/12/2019

The Complainant alleged her dismissal was unfair and breach of the Minimum Notice and Terms of Employment Act by not paying her the appropriate notice pay.

The Complainant commenced employment in November 2015 on a specific purpose contract as an Intern Support.

It is accepted that the Complainant did have long periods of absence however these absences were, by and large, due to medical issues and the Union made efforts to reduce the Complainants working hours to seek a reasonable accommodation to reduce the Complainants absence profile.

It is clear from correspondence in this case that the decision to dismiss the Complainant was as a result of her absence profile and as a result any exclusions afforded to her employer undersection 2(2)(d) of the Unfair Dismissals Act in relation to the termination of a specified purpose contract do not apply as the dismissal did not consist of solely of the expiry of the term of the contract.

In the circumstances the Complainant was not afforded her right to the full remit of the progressive disciplinary process i.e. oral warning, written warning and final written warning before dismissal. The application of these warnings can only be deviated from in cases of gross misconduct and at the time of the dismissal the Complainant had only be taken through stage 1 of the disciplinary process. In addition the Union wrote to the Respondent on October 24th 2019 advising that no right of appeal was offered to the Complainant and the Respondent subsequently advised in a telephone call that no right of appeal would be offered to the Complainant.

The failure of the Respondent to apply its own procedures in the dismissal of the Complainant is in itself sufficient to determine that the dismissal was unfair. This is supported by the decision of the Labour Court in UD/17/46 Limerick City Council/Richard Moran. The Labour Court stated “In those circumstances, while noting that the Respondent holds that the Appellant was unsatisfactory, the Court must conclude that, as a result of a failure to adhere to its own written procedures for dealing with such a circumstance, the dismissal of the Appellant was unfair”. The Union contend that the circumstances of that case are similar to the Complainants case.

Under the Respondents own procedures and SI 146 of 2000 the Complainant had a legitimate expectation and entitlement to the full application of fair procedures and due process. The Respondent had an obligation to respect and adhere to their procedures but failed to do so rendering the dismissal unfair.

With regard to the Minimum Notice claim the Complainant received a payment of 144.56 Euros and this does not equate to two weeks pay as per her payslip. The Complainant was entitled to two weeks notice based on her service under the Act and should have been paid 1006.58 Euros and the Complainant is seeking payment of the balance due.

The Complainant commenced employment in November 2015 on a specific purpose contract; therefore the Unfair Dismissals Act does not apply to the fixed term contract.

The Complainant was employed initially on a two year fixed term contract as an Intern Support Staff member. The Complainants contract was renewed from October 11 2017 to October 10 2018 and from October 12 2018 to October 11th 2019.

The Complainant did not fulfil her contractual obligations by providing a regular and efficient service to her employer. Due to her failure to meet her contractual obligations, the decision was made not to renew same.

The Complainants attendance year on year, was very poor and following numerous meetings and accommodating Occupational Health recommendations, the Complainant continued to be absent from work and did not follow its Managing Attendance Policy and in total her absence amounted to almost The Absence Record was;

2016; 10%

2017; 14%

2018; 60%

2019; 1st Jan to 30th Sept

Full days worked – 70

Full days absent from roster – 51

Full days A/L – 48

The Complainant had a record of not attending her occupational health appointments which is a requirement under the Managing Attendance policy:

2018 – 5 appointments, did not attend for 1

2019 – 4 appointments, did not attend for 2

The Respondent complied in full with all occupational health recommendations in an effort to assist the Complainant in her phased return to work. The Complainant was referred to the Occupational Health service in each of her employment years. The Complainant did not turn up for a number of occupational health appointments during this time. After an Occupational Health review in August 2018 the Complainant was placed on significant limitations regarding her work duties and it was not possible for her to complete her normal duties. Alternative work was considered and a Consultant opinion was sought from the Complainants Consultant in October 2018 to inform further but this was not received.

A large number of correspondences was issued to the Complainant in the course of her employment regarding her compliance with the managing attendance policy and stage 1 of the Disciplinary procedure was invoked. It proved difficult to manage the disciplinary process due to the large number of absences.

On October 7th 209 a meeting was arranged with the Complainant and her SIPTU representative and on and during same the Complainant was advised her contract would not be renewed on the basis of her poor attendance.  Prior to this the Complainants Union Representative and the Respondent had engaged in extensive communications to try resolve the issue.

The Complainant was passed fit to work in January 2017, August 2017, November 2017, March 2018 and November 2018 but still had significant absence issues.

The Complainant was given 2 weeks’ notice and two options were offered– work the 2 weeks’ notice or accept 2 weeks’ pay in lieu of notice.  After private consultation with her Representative the Complainant chose the latter.

18th October 2019 a leaving form was completed, signed and submitted.

The Complainant has made pension contributions of 3,832 Euros and the Respondent offered, after the final Hearing, to pay the equivalent amount in full and final settlement of the claims and the Complainant would continue to receive her pension entitlements.

The Complainant had exhausted all annual leave entitlement for 2018/2019 (pro rata) and was in arrears for 47 hours annual leave + bank holiday.

The Complainant was paid €578.21 for pay period no 23 (14th – 27th October) less €144.56 pay adjustment under USC which was later paid back to the Complainant on 21st November 2019.

The Complainant was paid 29.25 hours each for the two week notice period based on her roster.  

An Offer was made to pay the Complainant the balance of 19.5 hours in this instance in full and final settlement of this claim.

The Complainants request for a refund of pension contributions was explored as requested by the Complainant Representative at hearing of March 4th 2020 but this cannot be offered, as the employee service was not less than two years.

With regard to Claim Number CA-00033282-001 (Unfair Dismissal)

Preliminary Issue; The Respondent argued that the Unfair Dismissals Act did not apply to the Complainant due to her Fixed Term status and the Complainant Representative disputed this. The Complainant was initially employed on a Fixed term contract from October 10th 2015 to October 11th 2017. A standard internal change of terms and condition form was completed to renew the Complainants contract on two occasions. Firstly from October 11th 2017 to October 20th 2018 and again from October 20th 2018 to October 11th 2019.  The Complainant signed these changes to her Terms of Employment. The Complainants employment was terminated effective October 18th 2019.

The Respondents offer after the Hearing of a full and final settlement was rejected by the Complainants Representative.

Section 2 of the Unfair Dismissals Act 1977 defines what classes of employees are excluded from the Act. Section 2 (2) (d) states the following” dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without it being renewed under said contract or the cesser of the purpose and the contract in writing, was signed by or or behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of  the expiry date”.

The formal letter of dismissal to the Complainant stated “ I refer to our meeting on October 7th 2019 where we discussed your attendance and my decision not to renew your contract”. This and all the evidence of the Complainants attendance issues confirm the Complainants contract was not being renewed due to these reasons and not the end of the contract period. Therefore the exclusion of the applicability of the Act in this case does not apply and I accept jurisdiction to make a decision on the claim.

On the basis of the Respondents submissions they were confronted with an employee who had significant absence and who did not attend for medical assessments as organised on a number of occasions. The Respondent initiated Stage 1 of its disciplinary procedure and went no further until they did not renew the Complainants contract in October 2019. The Respondents case is that they were exasperated at the lack of effort by the Complainant to attend medical appointments and were frustrated by the Complainants frequent absence which affected their ability to process the disciplinary procedure further and involved considerable costs to find a replacement during the Complainants absences. I have a degree of sympathy with these arguments however a Fixed Term employee is also governed by the Disciplinary process, if the cause of termination or non-renewal of the contract was due to high absence, as it was in this case. So, in considering if the Respondent had substantial grounds for the dismissal of the Complainant from a factual perspective, the absenteeism facts tend to lead in that direction. However, the Respondents failure to apply its own disciplinary procedures to the issues meant that it breached its on procedures in dismissing the Complainant. The Respondent also dismissed the Complainant for reasons other than the natural end of the contract timeframe.

With regard to remedy and compensation, the Complainant is not totally blameless in this situation. Her absence levels, failure to attend medicals etc. contributed to the Respondents frustration with her and to their decision to dismiss. The Complainant has attempted to mitigate her loss but to no avail. If the Respondent, who failed to state in its contract renewals the justification for the renewal of the Fixed term contract, failed to implement its own disciplinary procedure and dismissed for non-renewal of the Fixed Term contract rather than cause, the decision in this case may have taken a different course.

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. I find that the Complainant was unfairly dismissed but contributed substantially to the reasons for her dismissal and the compensation should reflect that. For avoidance of any ambiguity the substantial ground for the unfair dismissal is dismissal for cause rather than the end of the Fixed Term contract and the Respondents failure to follow its own disciplinary procedures. I award the Complainant 5,000 Euros compensation for her unfair dismissal, (Claim Number CA-00033282-001.) This award reflects the Complainants own contributions to her termination of employment.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. With regard to the Minimum Notice claim (Claim Number (CA-00033282-002) the Respondent provided a comprehensive analysis of the final payments due to the Complainant including her legal right to notice under the Act but also showed why this notice payment was reduced due to holiday overpayments.  Consequently I find that the Act was contravened but the Complainant only remains due a partial notice payment of 19.5 hours of her Minimum Notice due to the other payments received, unless that amount has already been paid to the Complainant since the date of the Hearing.

Unfair Dismissal