ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027931

Parties:

Complaint(s):

Date of Adjudication Hearing:  09/02/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with 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.

Background:

The complainant who worked 39 hours per week was paid €700 gross per week was dismissed by the respondent for failing to provide them, after a substantial period on sick leave, a date for return to work. The complainant alleges that she was unfairly dismissed.

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 to the remote hearing

Summary of Respondent’s position:

The respondent operates a high-tech manufacturing facility and employs approximately 1100 people at its Cork site. It manufactures medical devices for use in surgical procedures in a clean room environment and is subject to FDA and CNP regulatory practices and approval.

It is required to meet the highest standards of GNP practice and traceability in every aspect of its functions and processes.

The claimant commenced employment as a product builder on 25 February 2002.

The claimant walked approximately 39 hours per week and was paid €700 gross.

Between November 2009 and July 2016, the claimant attended respondent’s occupational health physician on 17 occasions for a wide variety of reasons but the claimant's problems with absence did not improve.

The claimant did not return to work following her most recent period of maternity leave which expired on 8 June 2017 and commenced a period of long-term absence and 12th of June 2017 by submitting a medical certificate for one month advising that she was suffering from postnatal depression. She continued to submit monthly certificates until December 2019, some 3 months after she been informed that her employment was terminated.

The claimant was examined by occupational health and 26 October 2017. Respondent's doctor noted that she was prescribed medication, was reluctant to take it and she was encouraged to try to medication again. He further suggested a further review in January 2018.

The respondent had numerous meetings during 2018 with the claimant and in September 2019 respondent explained to the claimant that are willing to provide accommodations to assist her in a return to work and invited her to hear any suggestions she wanted to make to assist in that transition. Respondent explained to the claimant they were unable to keep the role open indefinitely.

The claimant failed to provide the respondent with a date for return to work. On 13 March 2019, the respondent and the claimant met to discuss options around the claimant returning to work. Respondent noted that the claimant was making steady progress with a return to work provisionally lined up for 29 April 2019. The claimant was referred to companies GP to ascertain the claimant's fitness to return and another welfare meeting was scheduled for 18 April 2019.

Respondent noted in its letter of 15th of March that the claimant had requested to return to a 2-evening shift basis. Respondent were prepared to facilitate the claimant with a phased return to work on a full-time role, the option of job sharing had been discussed at a meeting on 13th March and the respondent needed a return-to-work date for this to be a realistic option. No real return to work date was established. At this meeting, the claimant was told that respondent would work with her facilitating a phased return to work. Phased return is normally consisting of a 4/6-week bedding in period. However, it was agreed to review this again once she(claimant) was seen by the respondent’s doctor.

Respondent had another welfare meeting with the claimant on the 1st of May 2019 following which the respondent wrote to the claimant on the 3rd of May advising that the occupational health nurse would review her again in August 2019 with a view to returning to work in September 2019.

It was clearly explained to the claimant at this meeting that whilst the respondent would hold the job open for that period, they would not be in a position to hold the role open after that time. It was explained to the claimant during the meeting that at the next meeting, should the claimant not be fit to return to work the respondent would have to make a decision regarding her continued employment.

On 2 September 2019, the claimant was invited to a further meeting with respondents HR in this letter it was clearly set out – no return-to-work date had been established and the respondent could not keep job open indefinitely. At the meeting on 11th September 2019 the respondent noted that there was no return-to-work date and the company could not keep the job open indefinitely.

It was explained clearly to the claimant at this meeting that whilst the company held the job open for more than 2 years, there were not able to hold the role open for longer as despite working for with her for over 2 years, they had not been able to establish a likely return to work date.

On 12 September 2019, the respondent wrote to claimant informing her of the matter and providing 8 weeks’ notice of termination of employment which was scheduled to expire on the 6 November 2019.

The claimant appealed her decision to be dismissed.  The appeal Hearing was finally heard March 2020, the claimant similarly did not indicate if she were fit to return to work, or if not, when she would be likely to be fit to return to work.

The optics of this case show that from the time the decision to dismiss was communicated to her in September 2019 to the outcome of the appeal in May 2020, the claimant was more focus on demonstrating her dismissal was unfair rather than demonstrating the decision to dismiss should be overturned on the basis that she was a would soon be fit able to return to work.

Respondent submitted that they had given the claimant every opportunity to return to work but no stage where they provided with a date where she would.

Summary of the claimant’s position:

The claimant contends that the dismissal was unfair in that she was not given sufficient time to recover from illness, that she was not accommodated and supported in a return to work by her illness been treated in a similar manner to disability and that during determination process her rights as an employee were undermined and ignored.

This was evident by a complete lack of communication and response as to employment status despite repeated requests for clarification and confirmation and conflicting information as to employment status despite the respondent's contention that her employment terminated in September 2019.

The claimant attended all schedule review meetings with respondent and provided medical certifications for all periods of absence. She was working with their own general practitioner to return to work on a two-day per week basis to support her recovery. Respondent did not accept this, and the claimant feels that the nature of our illness is a disability.

 Under employment equality legislation more effort should be made by the respondent to accommodate the claimants return to work even on a part-time basis. This lack of flexibility and willingness to consider and review various options to facilitate a return to work is a breach of employment law and evidence of an unfair dismissal.

The claimant worked with respondent for 17 years. She suffered from postnatal depression and provided the appropriate medical certification with effect from 12 June 2017. Just over 2 years is not sufficient time for recovery and did not provide her with adequate time to recover from the illness Respondent acted hastily here and failed to provide or consider alternative options such as a phased part-time return to work.

 The claimant’s employment was terminated and yet she was debarred from having an external representative of choice attend the hearing. This is contrary to employment law practices where employees right to have external representative where the job is at risk is accepted and in place.

Findings:

 I find that both parties made written and verbal submissions at the hearing.

I find that the claimant commenced employment on the 25th of February 2002.

I find the claimant was out on sick leave for just over 2 years.

Based on evidence respondent made every attempt to accommodate the claimant on a phased returned to work.

The claimant suggested to work on two evenings per week with no end date.

The respondent was prepared to consider a job-sharing arrangement once they had a return-to-work date.

The claimant had the opportunity at the appeal hearing to provide a return-to-work date but failed to do so.

The respondent had informed the claimant on several occasions that they could not keep her position open indefinitely.

During the hearing the claimant’s representative raised that the dismissal was discriminatory but on clarified that he stated that he was not pursuing that argument.

The claimant had a right to representation of her choice especially where her position was under threat.

The fact the claimant was informed on a number of occasions that the respondent could not keep her position open and when the claimant was informed that her employment was being terminated that this came as a big surprise.

The respondent should have written to the claimant in advance and stated that if a return-to-work date was not provided by a certain date her employment will be terminated.

 I find that in the Behan v And Post, UD 320/2006 the Tribunal determined

“The claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment --in circumstances because of the claimant’s incapacity to fulfil his contract”.

Mitigating loss

The claimant is on disability payment as such is not available for work and not in a position to mitigate her loss.

Section 7(1)(c)(ii) of the Unfair Dismissals Act 1977.

  “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any) but not exceeding in the amount of 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid as is just and equitable having regard to all the circumstances”

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.

Based on the above findings I have decided the dismissal to be Unfair and I award the claimant 4 weeks’ pay.

Dated:   12-05 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: