ADJ-00024985

Complainant

Respondent

Anonymised Parties

Accountancy Firm

Secretary

Representatives

Michael Corcoran

 Murphys Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031779-001

23/10/2019

The Respondent is a sole practitioner accountancy firm.  The Complainant commenced her employment with the Respondent on 3rd August 2004 and was employed to carry out secretarial duties.  The Complainant was dismissed on 31st July 2019 as a result of her unexplained absence from the workplace. Prior to her dismissal, the Complainant was the Respondent’s only employee.

The Respondent submits as follows:

On Thursday 13th June 2019, the Respondent approached the Complainant at her desk. The Complainant was sitting at her desk with her computer screen off and advised the Respondent that she was on strike for better pay and conditions. The Complainant then left her desk and went outside for a smoke. The Respondent went out for a coffee and upon his return the Complainant obstructed his entry to his office by standing in the doorway. The Respondent went into his office and continued with his day's work. At 11.30am the Respondent noticed that the Complainant had gone from the office. The Respondent was somewhat confused about her disappearance and tried to contact the Complainant on her mobile a number of times.   When this was unsuccessful, he then asked an employee in another business in the same building to contact the Complainant and meet her for a coffee. The Complainant did not attend for work on Friday 14th June 2019 or on Monday 17th June 2019. There was no notification or explanation for her non-attendance at work. The Respondent asked the same employee of the other business, who was known to the Complainant, to go to the Complainant's home to ensure that nothing had happened to her. The employee went to the Complainant's home.  Later that day, the employee confirmed that the Complainant was at home.

On Tuesday 18th June 2019, the Respondent contacted the Complainant by text message to ask if she would be attending for work that day. She responded "No" and did not offer any further explanation. The Respondent sent further text messages to the Complainant that day but these were ignored by the Complainant.

On Wednesday 19th June 2019 the Respondent again contacted the Complainant by text message to ask if she was attending for work. Again, he was met with the same "No" response. The Respondent also asked the Complainant for passwords for the computer system so that he could access his business files. Again, his requests were ignored.

On Thursday 20th June 2019, the Respondent again texted the Complainant to see if she intended to turn up for work and was met with the same response. The Respondent sent further messages to the Complainant seeking an explanation for her absence and requesting the computer passwords. Again, these messages were ignored.

On Friday 21st June 2019 the Complainant left a voicemail on the Respondent's phone advising that she was on force majeure leave but gave no further explanation. Emails were received from the Complainant's neighbours on the 24th and 25th of June 2019 confirming her absence on force majeure leave.

On Monday 24th June 2019, the Respondent sent a text message to the Complainant asking her to contact him regarding her current condition and seeking that she engage with him in a meaningful way before close of business on 28th June 2019.

The Respondent sent a letter to the Complainant on 25th June 2019 to point out that force majeure leave is reserved specifically for emergencies concerning immediate relatives and did not apply in her situation.  He also repeated his request for the passwords to the computer system.  In his letter, the Respondent noted that “despite my repeated attempts to ascertain your current condition you have refused to furnish me with a reasonable response and that you have further refused to provide me with an expected return to work date.  Therefore, I have no other alternative other than to inform you that unless you engage directly with me before close of business, Friday 28th June 2019 that you are at risk of losing your position in the business.”

The Respondent did not hear anything further from the Complainant until he received a voicemail from her on Monday 15th July 2019 stating that she was on force majeure leave and that the Respondent was obliged to pay her salary for life whilst she was on leave. The Complainant demanded that her wages be paid to her in cash and sent to her address with a payslip. Again, the Complainant gave the Respondent no reason as to why she was taking force majeure leave.

During the remainder of July 2019 the Respondent received aggressive phone calls and voicemails from the Complainant.  When the Respondent attempted to question the reason for her absence, she refused to respond other than to say that she was on force majeure leave. In particular, during telephone conversations that took place on the 17th and 23rd July 2019 the Complainant informed the Respondent that it was "none of his business" as to where she was.

By 1st August 2019 the Respondent had been left in a difficult position. In the Complainant’s absence, he had to engage the services of a temp agency. He also had to engage a software company to access his own business files. He had received no sick certificates from the Complainant and had no explanation from the Complainant as to why she was not attending for work. The Respondent attempted to engage with the Complainant on several occasions to ascertain what was wrong but was met with little or no response. The Respondent asked the Complainant to engage with him on numerous occasions both by text message and telephone calls. The Complainant refused to engage in any meaningful way. The Respondent gave the Complainant fair notice and warning by way of text message dated 20th June 2019 and in his letter of 25th June 2019 and was left with no other option but to terminate the Complainant's employment for non-attendance at work by letter of 1st August 2019. The Respondent contends that he acted in a fair and reasonable manner and did what would be expected of any reasonable employer in the circumstances.

The Respondent then received a letter from the Complainant dated 6th  August 2019 seeking clarification as to her employment status. The Respondent would suggest that the Complainant’s employment status was made perfectly clear in the Respondent's letter of 1st August 2019.

The Respondent received a letter from St Vincent’s Hospital dated 26th September 2019 which referred to a letter which the hospital had written to him in late July regarding the Complainant. The Respondent did not receive the July  letter and it was noted in the letter from St Vincent’s that the hospital's copy of this letter could not be found.  The letter from St Vincent’s stated that the Complainant was admitted to St Vincent's on 1st July 2019 and was suffering from an acute illness. The Respondent did not receive any prior letter from St Vincent's Hospital and contends that it is highly unusual that the hospital cannot locate a copy of the July letter. The September letter did not give an indication as to the Complainant's condition or her expected return to work date. The Complainant made no further contact with the Respondent.

In her complaint referral to the WRC, the Complainant alleged that the Respondent was aware of her diagnosis of bipolar disorder. The Respondent denies being made aware of this at any stage by the Complainant.

The Complainant alleges that she was not given a disciplinary hearing. The Respondent utterly rejects this allegation. The Respondent requested that the Complainant engage with him on numerous occasions to discuss matters and these invitations were either ignored or met with sharp responses claiming force majeure leave.

The Respondent contends that pursuant to section 6 (4)(a) of the Unfair Dismissals Act 1977, the Complainant demonstrated that she was not competent to, nor capable of, performing her duties as required by her employer.  The Complainant did not attend work from 13th June 2019 and did not provide the Respondent with a reason for her absence.

The Respondent contends that pursuant to section 6 (4)(b) of the Unfair Dismissals Act 1977, the Complainant's behaviour was unacceptable. The Complainant left work without permission or notice on 13th June 2019.  At the outset of her absence, the Complainant failed to notify or engage with the Respondent  to advise him that she was unwell. The Complainant ignored and/or refused to provide the Respondent with the password to her computer, preventing the Respondent from accessing his business files and making it impossible for the business to function in any form of productive manner. As a result, the Respondent went through the expense of engaging IT specialists to allow him access to his business files that were on the Complainant's computer. The Complainant refused to engage with Respondent to try and rectify matters. The Complainant maintained that she was on force majeure leave and expected the Respondent to pay her indefinitely for work that she was not doing.  

The Respondent contends that the Complainant failed to disclose her medical condition to the Respondent. When the Complainant did engage with the Respondent it was in a hostile, abusive and demanding manner and she did not advise the Respondent of her medical condition. The Complainant also failed to advise the Respondent if and when she would be returning to work.

The Respondent is a small business owner with one employee. The Respondent attempted to engage with the Complainant on numerous occasions in an effort to ascertain why she was not appearing for work. The Respondent paid the Complainant until 31st July 2019 despite her non-attendance in work. The Respondent also paid the Complainant in respect of her annual leave entitlement.

The Respondent wrote to the Complainant requesting her to engage with him and put her fairly on notice that if she did not engage her employment would be terminated. The Complainant failed to respond or engage in any meaningful way. The Respondent acted fairly and reasonably in the circumstances and went above and beyond what would be expected of a reasonable employer.

The Respondent would contend that the relationship has irrevocably broken down and that there is a loss of trust between the parties.

Summary of the Respondent’s direct evidence

The Respondent asserted that he had never been notified by the Complainant that she suffered from mental health issues.  He was not aware that she suffered from bipolar disorder and over the entirety of her employment, nothing alerted him to this.  The Respondent indicated that he had never received any medical certificates from the Complainant during the course of her employment.  He also asserted the Complainant never provided him with a reason for her absence in 2019. 

The Respondent explained that in the 15 years that the Complainant had been working for him, if issues arose, they sat down and resolved them.  Given the small size of the Respondent’s business, there was no formal procedure for disciplinary action. The Respondent said that he had an annual discussion with the Complainant about her salary.

The Respondent said that on 13th June 2019, he picked up the post on his way into the office and gave it to the Complainant.  She was sitting at her desk with her computer switched off.  The Complainant informed him that she was on strike over pay and conditions.  He responded that strikes normally take place outside.  The Complainant said that she was going outside for a smoke.  The Respondent then left the office to get a coffee.  When he returned the Complainant was outside and he asked her to step aside so that he could enter the building.  He did not say anything else as “least said, easiest mended”.

The Respondent said that after the Complainant left the office on 13th June 2019 without providing a reason for her absence, he made several attempts to contact her.  He phoned her on the 18th June to ask what her issues were.  He phoned every day for the next three days to ask her if she would be returning to work.  Each time she responded in the negative.  He also asked her for the computer passwords but she did not give them to him.  He really did not know what was going on.

The Respondent said that the first time the Complainant gave any explanation for her absence was on 21st June 2019 when she said that she was on force majeure leave.  He contacted her by text and email but did not receive any response.

The Respondent said that he knew from the Complainant’s voice and slurred speech on the phone that she was under the influence of something.

The Respondent felt that he had given fair warning in his letter of 25th June 2019 to the Complainant when he informed her that if she did not engage directly with him by close of business on Friday 28th June 2019, she was at risk being dismissed.  The Respondent indicated that, if he had received a response to his letter of 25th June 2019 to the Complainant, then he would have taken her back when she had recovered.

The Respondent said that he was left with no option but to terminate the Complainant’s employment on 1st August 2019 as there had been no engagement, no reason given for her absence and no timeframe provided for her return to work.

The Respondent said that the letter of 26th September 2019 from St Vincent’s University Hospital was the first time that he knew why the Complainant was absent from work.  The Respondent confirmed that he did not receive a copy of the letter which St Vincent’s Hospital said that it had sent to him in late July. 

The Respondent emphasised that he had asked the Complainant on numerous occasions to talk to him.  When this did not happen, he felt that he was left with no other option but to dismiss the Complainant.  The Respondent said that if he had known that the Complainant was unwell, he would have kept her position open for her.   He added that if he had been aware of the real situation, he would have been happy to have her back.  The Respondent said that he had helped the Complainant in the past and that if had known of her situation, he would have been happy to do so again.  The Respondent emphasised that it was not in his interest not to have the Complainant working for him.

In response to the Complainant’s submission that she may had missed out on her redundancy and notice entitlements, the Respondent said that the Complainant’s position was still in existence and had been filled.  The Respondent indicated that it was never his intention to terminate the Complainant’s employment until he was forced into it by her actions.

In the course of cross-examination by the Complainant’s representative, the Respondent stated that he had no recollection of the Complainant being ill in 2006 and that he had not received any medical certificates to cover that period. 

The Complainant submits as follows:

The Complainant worked for the Respondent for 15 years until she was dismissed by the Respondent by letter dated 1st August 2019. The Complainant believes that she was unfairly dismissed by the Respondent as a consequence of her absence from work due to a long-standing illness which she believes was known to the Respondent as she has suffered from bipolar disorder for a number of years.  

The Complainant contends that it is clear that the Respondent knew that she was suffering from bipolar disorder when she was absent for two weeks in 2006.  The Complainant believes that the Respondent was fully aware of her condition at that time, as she had discussed the fact that she had been a patient in a number of hospitals immediately prior to her absence in 2006.  The Complainant was diagnosed with manic depression at this time.

The Complainant notes that, at the end of the letter of dismissal, the Respondent stated the “It is regrettable that you [the Complainant] have chosen to terminate your employment with me [the Respondent] in the manner in which you have and I hope that you have sought and will receive the appropriate supports necessary to aid your recovery”.  The Complainants submits that this extract supports her contention that the Respondent knew of her illness.

The Complainant believes that her inappropriate behaviour was entirely due to her condition of bipolar disorder.  The Complainant submits that in early 2019, her bipolar disorder re-emerged.  She believes that this was due to the fact that her medication at the time failed to stabilise her moods.  During this time, the Complainant sought help and was eventually accepted as a hospital in-patient from early July 2019 until the end of August 2019.

The Complainant refers to a letter from St Vincent’s Hospital regarding the Complainant which was sent to the Respondent in late July 2019 which the Respondent contends it did not receive.  St Vincent’s Hospital wrote again to the Respondent on 26th September 2019 to say that the Complainant was hospitalised from 1st July 2019 to end-August 2019.  The hospital confirmed that the Complainant was very ill during this time and had been for some time prior to 1st July 2019. 

The Complainant asserts that the Respondent ignored her registered letter of 16th October 2019 in which she sought a copy of her personnel file.  The Complainant believes that this shows that the Respondent had no intention of following fair procedures. 

The Complainant asserts that her dismissal had a profound affect on her health and well-being. She also asserts that she lost any entitlement to redundancy or minimum notice which she had built up during her 15 years working for the Respondent.

The Complainant asserts that proper procedures were not followed by the Respondent when he made the decision to terminate her employment.

Summary of the Complainant’s direct evidence

The Complainant said that she was absent from work in 2006 due to her bipolar disorder and that she finds it unbelievable that the Respondent does not remember this as she has a very clear memory of telling him.  She added that the Respondent knew that she went for regular mental health check-ups but that he never requested medical certs to cover these.

The Complainant said that she started to become ill at the beginning of May 2019 and that she was committed to hospital on 1st July 2019.  She said that all of her communication with the Respondent in relation to her absence was conducted when she was in a state of psychosis.  The Complainant said that all the hostile texts and phone calls were as a result of her illness, an illness that the Respondent was aware of.

During the course of cross-examination by the Respondent’s solicitor, the Complainant confirmed that she did not think that the Respondent would be familiar with psychosis and she would not have expected him to know the warning signs.

The Complainant confirmed that she did not read the correspondence she received from the Respondent during her absence as she was deeply psychotic and had very little insight into her own condition.

At the outset, I would point out that that the only complaint before me is a complaint under the Unfair Dismissals Act, 1977 and, therefore, my investigation has been carried out in accordance with the provisions of that Act.   

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The concept of reasonableness is a core tenet of the Unfair Dismissals Act. 

In Bank of Ireland v Reilly, Noonan J. stated that:

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”’

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The general approach of tribunals to cases of dismissals for conduct was set out in Hennessy v Read & Write Shop Ltd UD 192/1978 (reproduced in Madden and Kerr, Unfair Dismissal: Cases and Commentary (2nd ed., 1996), p. 317):

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In the herein case, the Respondent made considerable efforts to contact the Complainant to seek an explanation as to why she was absent from work.  I note that there was a dispute between the parties as to whether or not the Respondent was aware that the Complainant was suffering from bipolar disorder.  I note that the Complainant is relying primarily on an absence dating from 2006 to support her position.  I am of the view that, even if the Respondent was aware of the Complaint’s diagnosis in 2006, the length of time between 2006 and 2019, and the Respondent’s lack of medical expertise, means that medical information which may have been made available in 2006 would not be relevant or determinative in 2019.  Furthermore, the Complainant’s admission that the Respondent did not require medical certification for any of her absences when she was attending medical appointments relating to her bipolar disorder, leads me to believe that in 2019 the Respondent did not have any current knowledge of the Complainant’s condition.

While there is a clear responsibility on an employer to act reasonably in all aspects of an employment relationship, there is also a corresponding obligation on an employee.  In this case, the Complainant should have provided the Respondent with a reason for her absence from her workplace. Unfortunately, due her bipolar disorder, the Complainant was unable to do so.

The EAT stated in Ó Loinsigh v Community Technical Aid 161 that:

“The responsibility [of the tribunal] is to consider against the facts of what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

I am of the view that it was not possible for the Respondent in this case to apply any procedures given that the Complainant, as a result of her illness, was unable to engage in any way with the Respondent when he sought to ascertain the reason for her absence and if there was a prospect of her returning to her place of employment.”

Similar to the findings in Ó Loinsigh v Community Technical Aid 161 as set out above, I am of the view that due to the complex nature of the Complainant’s illness she was unable to engage with the Respondent when, on numerous occasions, he sought a reason for her absence and attempted to establish if there was a prospect of her returning to her workplace.

I find, therefore, that in all the circumstances of this case it was reasonable for the Respondent to dismiss the Complainant.

Having considered all of the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the dismissal of the Complainant was not unfair.  I decide, therefore, that this complaint is not well founded.

Unfair dismissal – unexplained absence