Complainant

Respondent

Anonymised Parties

Sales Assistant

A Hair and Beauty Products Supplier

Representatives

Edmond Smith Independent Workers Union

Karen Hennessy Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the by the by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00047502-001

02/12/2021

The worker submitted a claim on 02/12/2021 under section 13 of the Industrial Relations Act, 1969.   The worker submits that due to a medical issue she was unable to return to work after the birth of her second child and that she had been on sick leave for over 2 years before being dismissed due to incapacity.   The worker submits that that the process and procedures applied to her during her sick leave left a lot to be desired.  She also submits separately that her employer has gone against its own policies and procedures and not allowed her to appeal against the investigation findings of a grievance she had raised.

The worker states that she received over €6,000 into her bank account from the company following her dismissal and that she had received no explanation as to what this amount represented.   The worker is not seeking reinstatement but is looking for an explanation from the company about what happened and some compensation for the way she was treated.

The worker advised the hearing that she was employed by the respondent in its Irish branch of its UK based company for the twelve years.  

She submits that her employer has gone against its own policies and procedures and not allowed her to appeal against the investigation findings of a grievance hearing.

Other aspects of this claim are as follows, Being treated in a very disrespectful manner by her line manager a Ms C, which offended her dignity both as a woman, worker, and as an employee of the Company. Being invited to a so called " friendly chat" meeting only to discover that it was in fact a " welfare meeting', which was anything but friendly. Being informed that her line manager Ms C would be conducting this "friendly chat" meeting only to discover that the area manager Ms B would be conducting this "welfare meeting".  The worker submits that this is unprofessional behaviour on the part of her employer. Being "locked out" of a virtual meeting after being admitted to the waiting room on a WebEx platform where she was to present an appeal against the findings of a grievance raised by the worker.  Despite emailing the Company during the time that she was in the waiting room, the worker received no reply.

On 06-April-2022 a Medical Capability Meeting was held in the company office, the worker did not attend on person, she submits that the reason for her non-attendance at the meeting was due to the fact that she had previous negative experiences at the location.    The worker submits that there was also no attempt made by the company to have the worker physically examined and consultations took place over the phone.

The worker was later dismissed by letter dated 8th of April 2022 and given an opportunity to appeal this decision which she did.  The appeal hearing was scheduled for 25th of April 2022 but it is submitted that the link for the WebEx meeting was not received by the worker.  The meeting was then rescheduled for 29th of April 2022.  The worker did not attend and the reason she gives for her non-attendance is that she submits that the company had not considered all of the relevant information pertaining to her illness / injury, MRI report, pain management protocols.  The worker further submits that the company seemed to be quite happy to dismiss her on the grounds of an OH report, even though the OH report was noted as being still open and active.

The worker failed to attend both Medical Capability meetings arranged for her on Wednesday 6th April 2022 and Friday 8th April 2022, therefore, as advised in the invite letter failure to attend would result in a decision being made in her absence and a decision made based on the facts available.

The worker was absent from work for a total of 2 years and 3 months, the report from the company Occupational Health provider, indicated that there was little prospect of her returning to work in the foreseeable future, and that there are no reasonable adjustments that could be made to aid a return.   Furthermore, in the workers previous Welfare Meetings the worker had been unable to provide the company with an update as to when her required physio may take place.

The worker was referred to Occupational Health on a number of occasions during her absence with the final report concluding on 9th of March 2022.  This report concluded that the worker remained unfit for work in any capacity and that no adjustments were required to accommodate a return to work.    In addition, the assessor was unable to give an indication when/ if the employee would be able to resume her full range of duties.

Under these circumstances, the company was left with no alternative other than to terminate her Contract of Employment on the grounds of ill health and significant impact the workers absence was having on the store.   Further meetings were arranged for 6th April 2022 and 8th April 2022 which the worker did not attend.

The workers last day of service with the Company was 8th April 2022.   The worker was paid in lieu of notice, and for any outstanding statutory holidays accrued but not taken up to the date of your termination.

The worker was offered the right to appeal against this decision which she did but failed to attend the scheduled appeal hearing.   An Appeal Hearing was arranged for Monday 25th April, and then re-arranged for Friday 29th April 2022 via WebEx.    The worker failed to attend.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that the worker in this case did not attend the medical capability meeting of the 6th of April 2022 and that the reason provided by her for such non-attendance was that she had previous negative experiences at the location.   I also note the worker also failed to attend the appeal hearing in respect of her dismissal.

Disputes under section 13 of the Industrial Relations Act 1969 should generally only be referred to the WRC when all internal efforts to resolve the dispute have been exhausted and the worker by not attending her appeal hearing failed to do so in this case.

By not attending her medical capability hearing or the appeal hearing, I am satisfied that the worker in this case failed to utilise all internal procedures open to her before referring her dispute to the WRC and so I cannot recommend in her favour.

As I have stated above, I am satisfied that the worker in this case failed to exhaust all internal procedures open to her before referring her dispute to the WRC and so I cannot recommend in her favour.