ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00027410

Parties:

Complaint(s):

Date of Adjudication Hearing:  19/02/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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.

This matter was heard by way of 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.

Background:

This complaint refers to an allegation of Unfair Dismissal by the Complainant, a General Operative, who submitted that he was dismissed on 10th September 2019 when he was on sick leave and when he intended to return to work.  The Respondent, an Agri Food Business denied it dismissed the Complainant and maintained that the Complainant had resigned his position.

Summary of Respondent’s Case:

The respondent, and Agri Food business, resolutely disputed the allegations. The Respondent asserted that the termination of the Complainant’s employment was planned, voluntary, and well communicated to the Respondent and the Complainant’s work colleagues, and that this can be supported by the evidence.

Preliminary Jurisdiction Argument

The Respondent submitted that the complaint was out of date.  The Respondent submitted that Section 8 (2) of the Unfair dismissals Act 1977 states: “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period..”

The Respondent maintained that the Complainant was written to on the 12th August 2019 providing him with confirmation of a notification of termination of his employment that the Complainant aurally communicated to be 24th May 2020 and in advance of that date. Therefore, it submitted that the claim with respect to Section 8 (2) is outside the time period specified under the of the Unfair Dismissals Act 1977 and that the Adjudicator does not have jurisdiction to hear this claim.

The Respondent acknowledged that Section 27 of the 1997 Act allows for a complaint to be entertained after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.” The Respondent submitted that the definition of “reasonable cause” within the 1997 Act was explored by the Labour Court in the case of Cementation Skanksa v Tom Carroll (DWT0338), in which it was stated: “It is the Court's view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Respondent argued that such “reasonable cause” has not been advanced by the Complainant for the failure to bring their claim within the statutory time limit and therefore opined the within claim may not proceed.

Response to the Complaint of Unfair Dismissal

The Respondent submitted that the Complainant, commenced employment in early 2006 and that he was subsequently joined in the workforce by his wife. In the latter part of 2018, both the Complainant and his wife approached the Production Manager and separately the Assistant Production Manager, to indicate that it was their intention to retire to Latvia in May or June of 2019. This information was passed to the Commercial Manager who noted it in his diary as was his usual practice. The Respondent further submitted that the imminent departure of both the Complainant and his wife was common knowledge across the workforce and preparations, including a staff collection, were in train for their departure. The Respondent maintained that in conversation the 24th May 2019 was confirmed as the planned final date for both the Complainant and his wife.

The Respondent advised that in early 2019 when the Respondent was on holidays in Latvia, he sustained an injury. As a consequence of the injury continuing the Complainant was certified unfit for work with medical certification from 13th to 31st May 2019.

On 20th May 2019 the Respondent wrote separately to the Complainant and his wife in good faith on the understanding the Complainant was resigning on 24th May 2019.  The purpose of the letter was to facilitate their departure from the business and to complete their records.  The letter to the Complainant referred to the Complainant having verbally confirmed to the Production Manager that he was leaving the company on 24th May 2019 and in this letter the Complainant was asked to complete a standard Notice of Termination of Employment- Resignation form. The Respondent contended that it wrote again to the Complainant on 12th August 2019 referring to its letter of 24th May 2019 and advising the Complainant that as it had not heard from him since then, and had received no further medical certification for his absence, that it assumed the Complainant had resigned. The Respondent maintained that no further communication of any description was received from the Complainant until 3rd September 2020.

The Respondent acknowledged to receiving three medical certs on 3rd September 2019 from the Complainant covering his absence up to 26th August 2019. On 10th September 2019 the Respondent wrote again to the Complainant advising it had received the three medical but as it had not received a cert to cover the period from 26th August 2019 the Respondent advised the Complainant that it concluded he was no longer certified as being unfit for work. The letter also referred to the verbal communication about the Complainant’s resignation previously given to the Production Manager and in effect presumed  that the Complainant had in fact retired on 24th may 2019.

The Respondent submitted that it was well known by the Complainant, and it was set out in the Group Staff Handbook (in the Complainant’s native language) that any period of absence or on-going sick leave would require explanation and/or subsequent medical certification setting out the precise period for which the staff member would be unfit for work, or the probable date of return to work.

The Respondent submitted that the Complainant remained on certified sick leave and his wife left the workplace for the final time 18th May 2019 which was one week ahead of their notified/confirmed finish date. It was contended this early departure was done with no notice or mention to her fellow workmates, and where a staff collection and presentation planned for the following week was subsequently abandoned. The Respondent stated that from then on it was generally known and acknowledged within the workforce that the Complainant and his wife had returned to Latvia as planned. The Respondent regretted that it had not been able to celebrate the Complainant’s retirement and mentioned that the Complainant and his wife were deemed to be good people.

The Respondent submitted that it was a reasonable assumption on its behalf that the Complainant had terminated his employment on 24th May 2019 as he had planned. On 12th August 2019, for completeness, and to facilitate payment of any outstandingholidays due, the Respondent wrote to the Complainant confirming its understanding that he hadleft the business as planned given that no further communication hadbeen received from him. It was also pointed out to the Complainant that if he hadany queries in relation to the letter, that he should contact the Respondent.  However, no response wasreceived.

Following receipt of the “out of the blue” letter from the Complainant of 3rd September 2019, the Respondent wrote to the Complainant on 10th September 2019 pointing out that the Respondent had acted in good faith on the basis of the Complainant’s expressed intention of retiring to Latvia from 24th May 2019.  His retirement from that date was presumed due to his subsequent absence without explanation or communication for 3 months, his failure to respond to earlier correspondence, and the previously announced resignation. The Complainant was also advised that if he wished to query this decision, he should contact the Respondent. Again, no response was received. The Respondent maintained it would have taken the Complainant back at that time, but as no further correspondence was forthcoming it deemed the matter was at rest, and that the Complainant had retired. On 17th September 2019, not having received any response from the Complainant, arrangements were put in train to pay outstanding holidays that were accrued to the Complainant up to the date of termination. No further communication was received from the Complainant until the WRC notification on 19th March 2020, and the Respondent maintains this was its first indication that anything was amiss.

The Respondent therefore denied that the Complainant was unfairly dismissed. In particular the Respondent sought to rely upon all of the actions, utterances, and the subsequent failures to respond to correspondence by the Complainant which it asserted demonstrate that a “bona fide” intention to resign had been clearly communicated by the Complainant. The respondent argued that it acted in good faith in accepting the de facto notice of termination communicated verbally to the Production Manager and by subsequent conversations and actions. Furthermore, the Complainant failed to follow up with the Respondent when invited to do so in its letters in May, August, and September 2019.

The Respondent contended there was a Substantial Breach of Contract of Employment when the Complainant failed to make any contact with the company from the effective date of the last medical cert (31st  May 2019) up until back dated medical certs were received in September 2019.

The Respondent submitted that it acted reasonably at all times, and having regard to all the circumstances it was reasonable to presume that the Complainant had voluntarily left his employment as previously communicated.

Summary of Complainant’s Case:

The Complainant, a Latvian national, was employed as a General Operative from 23rd March 2006 to 10th September 2019.  The Complainant submitted that he was on sick leave and received a letter dated 10th September 2019 terminating his employment. The Complainant maintained that he was not called for a hearing before being dismissed, that he did not get an opportunity to explain his situation, and that he was not afforded right to appeal the decision of his dismissal. The Complainant submitted that the Respondent asked him to sign a resignation letter as soon as he went on sick leave, but he refused to do so.  He stated that since then the Respondent was putting pressure on him, which culminated in a letter of dismissal dated 10th September 2019.

The Complainant contended that having worked for the Respondent for over 13 years, no procedure had applied to his dismissal and that the dismissal itself was unfair.

The Complainant submitted that he had always intended to return to work. He acknowledged that his wife had signed a resignation form, but it was not reasonable for the Respondent to assume he had also retired as he had not responded to the letter which included a request to sign the Notice of Termination of Employment. He advised that he does not deal with paperwork, and he had submitted medical certs up to the end of May 2019, and had submitted further certs for the period up to the end of August 2019.

The Complainant maintained that he had had been sick since the termination and failed to provide corroborating evidence of seeking alternative employment since his termination of employment with the Respondent.

Findings and Conclusions:

Preliminary Jurisdiction 

Section 8 (2) of the Unfair dismissals Act 1977 states: “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of the Act of 2015  Act made for the purposes of subsection (8) of this section) to the Director General (a)within 6 months of the date of the relevant dismissal or(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.”

The Complaint maintained his dismissal occurred on 10th September 2019 when a letter was sent from the Respondent advising him that his employment had been terminated. For its part the Respondent maintained the date of termination occurred on 24th May 2019 based on the verbal communication with the Production Manager that the Complainant said he was planning to retire on that date.

I accept there is a dispute between the parties on the date of termination of employment. Given that the Complainant was on certified sick leave up to 31st May 2019, and in circumstances where he did not return a letter from the Respondent dated 20th May 2019 asking him to confirm his termination of employment, I am persuaded that the Complainant did not confirm his intention to retire at that point, and therefore did not terminate his employment then. I accept that he most probably did state to the Production Manager some time earlier that he did intend to retire on 24th May 2019, however when given the opportunity to confirm this in writing he did not do so. 

It is clear that the Complainant received a letter from the Respondent on 12th August 2019 asserting that the Complainant had retired on 24th May 2020 on the basis the Respondent had not received any further sick certs.  The Complainant subsequently forwarded sick certs on 3rd September 2019 which covered him until 26th August 2019, and no further correspondence was received from the Complainant.  The respondent wrote again to the Complainant on 10th September 2019 confirming the termination of employment, but asserting it viewed the termination of employment to be 24th May 2019. 

I do not find the 24th May 2019 as the date of termination, particularly in circumstances where the Complainant was on certified sick leave  and did not return a signed form confirming his notice to resign.  I therefore conclude that the date of termination was in effect the letter dated 10th September 2019.  The WRC Complaint Form was received by the WRC on 9th March 2020, which is within the 6 months allowed for under the Act.  I therefore find it is within my jurisdiction to adjudicate on this case.

Finding in relation to an Unfair Dismissal

In accordance with Section 6(1) of the Unfair Dismissals Act, 1977 (The Act) “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

S6(4) of the Act states [w]ithout 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… inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice. I must therefore consider the conduct of both the employee and the employer.

I am satisfied that the Complainant did verbally  advise the Respondent of his intention to retire in circa 24th May 2019. His wife who was also an employee of the Respondent similarly communicated her intention to retire at the same time. Unfortunately, the Complainant was involved in an accident when on leave in early 2019 which necessitated extended sick leave.  While on his sick leave the Complainant’s wife did not return to work from 18th May 2019.  The Respondent wrote to both the Complainant and his wife on 20th May 2019 seeking written confirmation of their intention to retire.  The Complainant’s wife retuned a signed copy of her notification to terminate her employment, but the Complainant did not.  He did not get back in contact with the Respondent, nor did he submit any further sick certs until after he received a letter from the Respondent on 12th August 2019. In this letter the Respondent asserted that as it had not heard from the in accordance with previous spoken communication with the Production Manager and the Complainant it assumed the Complainant had retired on 24th May 2019. 

In response to this letter the Complainant submitted further sick certs on 3rd September 2019 to cover the period up to 26th August 2019, but it appears he remained silent on the decision to retire. 

In response the Respondent wrote to the Complainant on 1oth September 2019 again referring to the lack of sick certs, the lack of contact from the Complainant over the previous three months, and an assumption that the Complainant had actually retired on 24th May 2020.  I find this letter amounts to the termination of employment notice from the employer.

Consideration must therefore be given as to whether this termination was reasonable or unfair.  As the Complainant did not sign the termination notice he received on 20th May 2019 I do not find he decided to retire at that time.  It is a matter of record that he was on sick leave, and where that sick leave continued as being certified until 26th August 2019.  A prudent employer would have referred to sick leave policy from 20th May 2019 and taken its guidance on how to handle the situation at that point. 

A review of the Sick Leave Arrangements as set out in the Respondent’s Staff Handbook as provided to the hearing requires that an employee who is unable to attend work due to illness should contact their manager or another manager in accordance with the process as set out in 1.6 of the handbook.  (It is in fact 1.7 Attendance at Work where these requirements are set out).  Section 1.7 requires The Director/Manager must be contacted personally on the First Day of Absence...Thereafter, in the absence of a doctor’s certificate outlining the expected duration of the sickness, the employee should contact the Director/Manager each day to update on your health situation.

In this case the Complainant had provided a sick cert, and was therefore not required to contact his manager on a daily basis.  I do not find any other obligation on the Complainant other than to provide sick certs.  The policy is not prescriptive as to when subsequent sick certs are to be provided.  The policy does state If the illness is prolonged or if there are periods of pronged illness the Groupreserves the right to require the employee to be examined by a doctor of theGroup’s choice. Subject to the medical advice obtained the Group reserve the right to review the continuation of the employee’s employment. (See Section 3.2). Section 3.2 refers to Long Term Illness and advises the employee of the right of the Respondent to request the employee to take a medical examination by the Group doctor.  This section sets out that an employee’s position will remain open for three months if the doctor’s report states the employee will be able to return to work to that position within three months.  In the even the doctor cannot provide this reassurance the situation will be reviewed and the Respondent may terminate the employee’s contract giving appropriate prior notice in writing. 

In the case within the Complainant was on certified sick leave and I do not find the Respondent adhered to its own policy. For whatever reason the Respondent decided the Complainant had retired despite not receiving a written notification of this after requesting it.  At that point, in light of the sick leave of the Complainant, the Respondent should have either written to the Complainant without delay to ascertain his medical situation, or in accordance with its own policy referred him to the Group doctor. Whilst it does appear that the Respondent genuinely believed the Complainant had verbally told management of his intention to retire, and it actively sought his confirmation on this matter in May, August and September 2019, it did not seem to recognise that the Complainant was in fact on sick leave and verified this in a letter on 3rd September 2019. It ignored this situation and issued what was in effect a letter of dismissal to the Complainant on 10th September 2019.

I therefore find that Respondent dismissed the Complainant on 10th September 2019, and failed to follow its own sick leave arrangements before making this decision.

For its part the Respondent has contended that as the Complainant did not contact them, and he had in fact terminated his own employment on 24th May 2019 on the basis he had expressed his intention to retire in a conversation or conversations with his managers. It was argued as the Complainant did not respond to the Respondent’s letter of 20th May 2019, nor did he make contact with the Respondent during June, July or August 2019 he must have retired.  However, the correspondence of 20th May 2019 only asked the Complainant to confirm and return a Notice of Termination- Resignation.  However, as he did not return this it was unreasonable for the Respondent to assume this meant the Complainant had retired.  There is no further obligation on the Complainant to take any action when he is on certified sick leave.  In accordance with the Staff Handbook, it is for the Respondent to be proactive. In such circumstances the policy states the Respondent may seek the Group doctor’s opinion of matters before decoding on whether an employee would be dismissed for sick leave in excess of three months.

The Complainant did respond to the Respondents letter of 12th August 2019, and forwarded sick certs on 3rd September 2019. Again, the Respondent did not follow its own procedures and instead concluded that Complainant had retired rather than seeking to establish his ability to return to work. 

Having read the Staff Handbook I do not find that the Complainant failed to adhere to his obligations under the sick leave policy.  It may be argued that he ought to have responded directly to the employer to clarify that he had not retired, but some leeway must be given to an employee in circumstances where his native language is not English.

Taking all the above into account I find that the Complainant was unfairly dismissed. The circumstances are that he did not complete a written notice of termination when requested, where it is evident he was on sick leave at the time,  and where the Respondent did not adhere to its obligations under its sick leave procedures before advising the Complainant it deemed his position was terminated.

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.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer;  the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.  I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In this case the Complainant stated that he has not found alternative employment and was only fit for work for two months.  He did not provide corroborating evidence that he had actively sought employment when he was available to work.  I therefore do not find that the Complainant had adapted any reasonable level of diligence in seeking alternative employment to mitigate the loss as he is obliged to do under the Act.

I therefore award the complainant €4,000 compensation for loss of earnings including accrued annual leave when on sick leave from June to September, subject to any lawful deductions.

Dated:   1st June 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words:

Unfair Dismissal, Resignation, Sick Leave.