Complainant

Respondent

Parties

Firdhaus  Dawood

Mowlam Health Care Services ULC.

Representatives

  Self-Represented

 Alastair Purdy & Co. Solicitors

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-00038621-001

09/07/2020

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

CA-00038621-002

09/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038621-003

09/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038621-004

09/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038621-005

09/07/2020

The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant together with the three witnesses on behalf of the Respondent swore an oath or affirmation and gave evidence at the hearing.

The Complainant’s case is she was unfairly dismissed, failed to receive minimum notice, claims she worked 55 hours per week and is due monies under the Payment of Wages Act 1991. 

The Respondent corrected its name at the opening of the hearing to Mowlam Health Care Services ULC.

The Complainant is a care worker.

She commenced employment on 23 October 2018 and her employment was terminated on 26 June 2020. She was paid €10.50 per hour and this was agreed between the parties.

CA-00038621-001 – Unfair Dismissal

It was the Complainant’s evidence that while on sick leave and isolation she was dismissed by her employer. She said she rang the Respondent to advise them and was put through to the Nurse in Charge to tell her. At the time she submitted that it was very difficult to get to the doctor and when she did meet him, he advised her to remain off work until she recovered. She submitted in her evidence that she rang the nursing home but was told that Ms O’Brien was not available. She submitted that she was forced to leave her career as a care assistant and was bullied and harassed by the Respondent despite having a medical sick certificate.

The Complainant submitted in her evidence that she had a clean record with excellent time keeping.

Under cross examination the Complainant accepted she had received a contract of employment which contained a clause re sick pay and absence policy. The Complainant stated she did follow the policy by contacting Ms O’Brien and furnishing medical certificates. It was put to the Complainant why she did not reference these calls in her emails, to which she replied that she was really sick and had to isolate. She stated everyone was told to self-isolate. 

Financial Loss

The Complainant gave evidence of her job search, listing three nursing homes in which she had interviews with in or around February 2021. However, as she did not have a reference her application was not progressed. She volunteers with an animal charity. She began working on 23 June 2021 for 2 hours on a Saturday and Sunday at a rate of €11.20 per hour.

Upon inquiry, the Complainant was asked if she sought a reference from the Respondent. She gave evidence that she had previously asked the Clinical Nurse Manager during her employment but not since her dismissal.

Under cross examination the Complainant stated she did obtain alternative employment on 01 April 2020. The Complainant further stated that she “could not recall” whether she was deemed unfit to return to work up to 16 July 2020. She stated when her employment was terminated she was not eligible for social welfare payments and was forced to get a job in August 2020. The Complainant gave evidence that she did not qualify for illness benefit from April 2020 nor did she qualify for any other benefit thereafter as the Respondent refused to complete the P21. It was submitted that the reason for this was due to the fact the Respondent had plenty of hours for her.

CA-00038621-002 – Minimum Notice

The Complainant gave evidence that she did not receive minimum notice from the Respondent.

CA-00038621-004 – Pay

The Complainant submitted that she was due holiday pay in the sum of €2,400 which was calculated on the hours she worked prior to sick leave, i.e. 6-7 days a week from January to April 2020 “every week”.

She claims the sum of €4,800 in unpaid sick leave pay.

The sum of €600 is claimed as notice payment.

CA-00038621-005 – Hours of Work

It was the Complainant’s evidence that she covered the night shift and would help residents to get up in the morning. She stated she worked 6-7 days a week from 8pm – 8 am for the last 4 months coming up to the period of her sick leave.

CA-00038621-001 – Unfair Dismissal

The Director of Nursing, Ms Katie O’Brien, gave evidence of the events which lead up to the Complainant’s dismissal on 26 June 2020. It was her evidence that the Complainant went on sick leave on 14 April 2020 with no certification. This was a time when there was 25% less staff  working due to childcare issues and sick leave where there were strict restrictions imposed by the Government. The sick leave procedure was followed. Ms O’Brien gave evidence that she made several phone calls to the Complainant, but they remained unanswered and at no point were her calls returned by the Complainant.  Follow up emails were sent by Ms O’Brien on 15 and 16 April , marked urgent, with the Complainant replying on 20 April 2020 with a medical certificate up to 28 April 2020.

By 28 April 2020, Ms O’Brien had not received an update from the Complainant and sent a letter dated 12 May 2020 noting this. The letter also referred to the Sick Leave  Policy and noted that failure to contact her “for three or more consecutive working days is considered abandonment of your job and may result in termination.”

The Complainant emailed a medical certificate to cover the period from 29 April 2020 to  13 May 2020 in reply. When no further certificate was received a follow, email was sent to the Complainant by Ms O’Brien on 14 May 2020 with a second follow up email sent on 22 May 2020 asking if she had resigned. The Respondent accepted that the Complainant replied on 24 May 2020 confirming her ongoing sick leave and that she had not resigned. A medical certificate dated 20 May 2020 was attached for the back dated period from 30 April 2020 to 28 May 2020. Ms O’Brien gave evidence that she sought to confirm the Complainant’s return to work date by email of 25 May 2020 to allow for workforce planning with no response from the Complainant . The next email came from the Respondent on 3 June 2020 asking for an update.

An email dated 4 June 2020 was received from the Complainant stating that she was due results from the hospital and wanting to set up a call with Ms O’Brien and Ms Matthews.

Upon inquiry, Ms O’Brien confirmed she had no contact between 4 June 2020 and her next correspondence of 24 June 2020 from the Complainant.

Ms O’Brien gave evidence that she sent a letter of termination, dated 24 June 2020, stating the following:

“ Further to our letter of 12th May 2020 and your email of 4th June 2020, as we have had no communication from you since then, I hereby terminate your contract with us.”

It was still hoped that the Complainant would come back to work by letter dated 24 June 2020 but no evidence was received of her return to work date. She gave evidence that the information was limited from the Complainant which made it difficult to gain a understanding of her condition or possible return to work.

It was submitted on behalf of the Respondent that it did not engage in a valid procedure prior to terminating the Complainant’s employment , however, the Complainant’s actions of continually breaching the Absence procedure and not updating her employer regarding her absence in a global pandemic , greatly attributed to the termination.

The Respondent relied on Section 6 (1) and (4) of the Unfair Dismissal Act, 1977 and submits that the Complainant’s conduct in failing to engage with the Respondent which resulted in her dismissal. The Respondent further submitted that Section 7 (2) (a) of the Unfair Dismissals Act 1977-2019 in relation to the Complainant’s contribution to her own dismissal should be in the order of 100%.

Financial Loss

In relation to mitigation of loss, the Respondent relied on Sheehan v Continental Administration Co Limited UD 858/1999 and Burke v Superior Express Limited UD 1227/2014 which places a duty on employees to mitigate their financial loss.

It is further submitted on behalf of the Respondent that the Complainant noted on her Complaint Form that she obtained alternative employment on 8 June 2020 but goes on to allege she was certified unfit to work until 16 July 2020. If this is the case, she was unable to mitigate her loss and it was submitted any awarded must be limited due to the Complainant’s inability to mitigate her loss.

CA-00038621-002 – Minimum Notice

It was submitted on behalf of the Respondent that Second Schedule of the Minimum Notice and Terms of Employment Act 1973 at Section 2 (a) (i), “ An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.”

Where the Complainant has submitted she was unfit for work from 16 July 2020 , she was not ready and willing to work and therefore, cannot claim for minimum notice.

CA-00038621-004 – Pay

The Complainant was paid in accordance with the Terms of Employment and Respondent’s Handbook wherein it states that employees are not paid sick leave. It was submitted the Complainant commenced her sick leave on 14 April 2020 and was paid up to that date. A pay slip was submitted in evidence to support this submission. A further letter dated, 27 May 2020, from the Dept of Social Protection was submitted as evidence that the Complainant’s pay was topped up for the first two weeks of leave and therefore, no further monies are due and owing.

The Complainant had accrued annual leave entitlements on the date of termination which amounted to 55 hours and the Respondent is willing to pay the gross sum of €580.

CA-00038621-005 – Hours of Work

It was submitted on behalf of the Respondent that the Complainant was on sick leave 14 April 2020 until the date of her termination and therefore, did not work any hours during that period of time. The referable period from the date of lodging her claim to the WRC on 9 July 2020 was therefore, 9 January 2020 – 9 July 2020 which leaves the period from 9 January 2020 to 14 April 2020 when the Complainant was working. Payslips and timesheets for this period were submitted in evidence which demonstrate that she did not exceed 48 hours. Ms O’Brien gave evidence that there was an electronic recording system in place for time keeping.

CA-00038621-001 – Unfair Dismissal

There was no dispute between the parties as regards whether the Complainant was dismissed. This was an accepted fact by both parties.

Therefore, the next step is to decide on whether the dismissal was fair or not. Where an employee is found to have been dismissed from her employment these is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by Section 6 of the Unfair Dismissals Acts 1977- 2015: -

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Noonan J. in Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 held: “…the onus is on the employer to establish that these 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 these 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 where the dismissal was reasonable for that of the employer. The question rather is where the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “

The termination letter from the Respondent, dated 24 June 2020, was unacceptable where no disciplinary procedures were followed. Consequently, I find the Complainant was unfairly dismissed from her position with the Respondent.

In its own submission, the Respondent accepts the dismissal lacked procedural fairness but seeks to rely on the failure of the Complainant to communicate with the Respondent as to her sick leave and return to work as a contributory factor of the reason to dismiss her from her employment and in particular Section 6 (4) of the 1977 Act which provides:

“(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:

(b) the conduct of the employee,”

In carefully reviewing the evidence before me there are unique circumstances in this case that are of particular note; firstly, the events in this case all happened between April 2020 – June 2020 when the Country was under a strict lockdown due to the Covid19 pandemic; secondly, it was widely reported that nursing homes together with all other residential facilities were under severe pressure to ensure the continued health and safety of their residents while balancing that of their employees and finally, I cannot ignore Ms O’Brien’s evidence that the nursing home was down 25% of its workforce during this time.

The Complainant’s medical certificate for the period of 30 April – 28 May 2020 was dated 20 May 2020 but was not revived by the Respondent until 25 May 2020. No reason was given for the delay by the Complainant.

I find there is no evidence before me that any efforts were made by the Complainant to call the Respondent. 

There was a dispute as regards the medical certificate for the period from 28 May 2020. No evidence was presented by the Complainant of the existence of this medical certificate at the hearing nor did she explain how it was communicated to the Respondent. Her email of 4 June 2020 does not refer to any medical certificate and is vague as to her position, at best. Therefore, I do not accept any further medical certificates were furnished to the Respondent beyond the certificate dated 20 May 2020.

In the particular circumstances of this case together with the Respondent’s own Absence Policy, I find that it was unreasonable for the Complainant not to keep the Respondent up to date as to her medical condition even where there may have been a delay in obtaining medical certificates from her GP.

Consequently, I find the Complainant’s own conduct in these particular circumstances did contribute mainly to her own dismissal for the purposes of Section 6 (4) of the 1977 Act.

Financial Loss

The Complaint Form submitted by the Complainant states she found alternative employment on 1 April 2020. The narrative of the Complaint Form states she was deemed medical unfit to work until 16 July 2020 due to her health issues. The Complainant’s evidence was that she was not working on or after 1 April 2020 nor was the date of 16 July 2020 correct but later gave evidence that she did not recall if it was correct. The Complainant gave further evidence that she begin working in August 2020. It was not clear where the Complainant began in August 2020 or the rate of pay.

Upon inquiry the Complainant gave evidence that she began working on 23 June 2021 for 2 hours on a Saturday and Sunday at a rate of €11.20 per hour. She did detail her efforts to seek alternative employment.

It is noted that the Complainant was not in receipt of illness benefit for the period of her sick leave.

In conclusion, I find that the Complainant’s evidence is unclear as regards her financial loss.

CA-00038621-002 – Minimum Notice

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

The Respondent’s submission on Second Schedule of the Minimum Notice and Terms of Employment Act 1973 at Section 2 (a) (i), is not accepted.

I find this complaint is well founded.

CA-00038621-004 – Pay

It is noted that the Respondent has conceded that the Complainant had accrued annual leave entitlements on the date of termination which amounted to 55 hours and the Respondent is willing to pay the gross sum of €580.

It is noted that the Complainant’s contract, which she signed on 28 October 2018, at Clause 4 that the employer does not operate a sick pay scheme. Consequently, there is no contractual entitlement to paid sick leave.

The Complainant’s claim for notice pay will be dealt with under CA-00038621-002.

CA-00038621-005 – Hours of Work

The legislation the Complainant seeks to rely on has a statutory limitation in terms of time of 6 month to initiate a claim.

Section 27 (4) of the Organisation of Working Time Act 1994 provides:-

“(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Consequently, I am limited as to how far I can look back at the claim from the date of Complaint Form was submitted to the WRC on 9 July 2020 for the previous 6 months, i.e. 9 January 2020. I must also be aware of the fact that the Complainant was on sick leave from 12 April 2020 to the date of her termination in June 2020.

The Respondent supplied a copy of the Complainant’s hours worked from January to July 2020 which show an average of 26.94 hours per week for that period. Consequently, I do not accept the Complainant’s evidence that she worked 6-7 days per week for 12 hours “every week”.

I find this complaint is not well founded. 

CA-00038621-001 – Unfair Dismissal

I find the complaint is well founded and the Complainant was unfairly dismissed.

I award the Complainant the sum of €1,740 being equivalent to four weeks wages, based on a 41.25 hour working week as per her last full working week before she went on sick leave, as being just and equitable in the circumstances where the Complainant’s own conduct did contribute to her termination.

CA-00038621-002 – Minimum Notice

I find this complaint is well founded and award the Complainant the sum of €435 based on a 41.25 hour working week as per her last full working week before she went on sick leave.

CA-00038621-004 – Pay

I find that the Complainant is due the gross sum of €580 for 55 hours accrued annual leave.

CA-00038621-005 – Hours of Work

I find this complaint is not well founded.

Unfair Dismissal – Conduct – Pay – Hours of Work – Minimum Notice