Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

  Self-represented

Tiernan Lowey BL (1st day) & Barry O’Mahony (2nd day) instructed by ARAG Legal Protection Ltd

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Acts 1977-2015

CA-00045989-001

06/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Acts 1998-2015

CA-00045989-002

06/09/2021

The complainant was employed as a part-time support worker with the respondent.  The complainant was certified unfit for work for an extended period from 4 September 2019.  The respondent convened a formal absence review meeting on 26 August 2020, the outcome of which was the decision to terminate the complainant’s employment on grounds of ill-health capability.  This was notified to the complainant by correspondence dated 14 September 2020.  The complainant appealed this decision and the appeal outcome issued on 16 December 2020. 

The complainant referred complaints to the Workplace Relations Commission on 6 September 2021.

The complainant was employed as a support worker with the respondent based at one of its outreach centres.  The complainant experienced difficulties working with a particular service user in 2019 and was transferred to another position.  The complainant experienced further difficulties with a service user at another facility and commenced a period of sick leave in September 2019 due to stress.

Medical certificates submitted by the complainant from September 2019 to September 2020 attributed her unfitness for work to work-related stress and medication adjustment issues.

Contact between the complainant and respondent during sick leave was maintained by way of the respondent’s occupational health service and informal welfare meetings with the respondent’s human resources personnel.  This included information and enquiries about other available positions with the respondent.

In or around July 2020, the complainant informed the respondent that her absence was attributable to medication adjustment difficulties and fatigue.  The complainant brought another health issue to the respondent’s attention before the formal absence review meeting.

Occupational health assessed the complainant as fit to return to work in June 2020; however the complainant did not accept positions offered to her by the respondent in July and August 2020 due to the complainant’s health difficulties and her GP having certified her unfit for work. 

The complainant attended a formal absence review meeting on 26 August 2020.

The complainant’s employment was terminated by correspondence dated 14 September 2020.

The complainant appealed the respondent’s decision by correspondence dated 22 September 2020.  In that correspondence the complainant detailed the nature of her health difficulties, the effects experienced and her current health status.  The complainant confirmed that she would like to continue working with the respondent and outlined terms upon which she would like to return to work.  She also expressed the wish to return after the Covid-19 pandemic due to her health difficulties.

The complainant was advised by the respondent of the outcome of her appeal by correspondence dated 16 December 2020.

The complainant submitted that consideration should be given to all the stress and everything she had gone through whilst in the respondent’s employment.  The complainant advised that she could not think of lodging a complaint with the Workplace Relations Commission any earlier than September 2021 due to health issues.  The health issues were pressing issues and they were exceptional circumstances the complainant was dealing with.  She was not able to engage with the Workplace Relations Commission to refer a claim.

The complainant tried to get assistance from certain bodies in relation to lodging her complaint to the WRC but there was no support forthcoming due to national issues.

Summary of complainant’s sworn evidence

The complainant’s medical condition was ongoing from the time her employment was terminated.  The complainant experienced total fatigue due to a particular named medical condition and she was attending to medical issues at the time.  The complainant confirmed that this condition was diagnosed in the summer before her employment terminated.  She attended three different hospitals in relation to the condition.  The complainant referred to letters from these hospitals in March 2020, January 2021 and March 2021.

The complainant was not fit to work after her employment with the respondent terminated and she did not do any work.  She was in a very anxious place and experienced mental health difficulties, particularly during the 6 months after the termination of her employment.  She was receiving counselling during this time. 

In cross-examination, it was put to the complainant that she was informed of the termination of her employment on 14 September 2020, that the internal appeals process concluded in December 2020 and that she had engaged with her employer in relation to her appeal.  The complainant confirmed that she was able to appeal the decision to terminate her employment and engage with her employer in relation to the appeal but that she had to be fair to herself as she was suffering from fatigue.  The complainant confirmed that at no stage was she an inpatient in hospital.  The complainant was asked about attending three hospitals over a 6-month period; she advised that she had been attending her GP also, not as frequently as monthly.  A particular medical condition is now resolved.  It improved gradually after the hospital appointment.  The improvement started at the end of 2021 or beginning of 2022.  The complainant was asked about her mental health difficulties, and she stated that she suffered for a period of time before and after employment with the respondent.  The complainant’s mental health difficulties resolved around April 2022.

In the first instance, the respondent disputed the complaints against it and raised various preliminary issues, including that the complaints were misconceived and statute-barred.

In relation to the unfair dismissal claim, the respondent denied the complainant had been unfairly dismissed and submitted that the complainant’s dismissal on grounds of incapacity was entirely fair in all the circumstances.

The complainant had throughout her period of sick leave fully engaged with her employer.  The complainant was offered a number of alternative roles but declined to take up any of the roles offered.

The complainant lodged an appeal against her dismissal by letter dated 22 September 2022, while she was unfit for work.  In that letter she indicated that she would like to return after the Covid-19 pandemic to a role within a specified area and working 12 hours per week or, in the alternative, would accept 4 weeks’ pay and annual leave pay.  The complainant attended an appeal hearing.  The outcome letter of the 16 December 2020 offered the complainant a vacancy where she could work 12 hours per week, which was what the complainant had indicated was acceptable.  The complainant did not accept the offer.  The complaint to the Workplace Relations Commission was lodged by the complainant on 6 September 2021.

In circumstances where the complainant was able to engage fully with the respondent throughout her period of illness, including in relation to her appeal, it was submitted that there could be no merit in the argument that the complainant was medically unfit to lodge the complaint with the Workplace Relations Commission within the statutory 6-month time frame and there was no reasonable cause to extend the time frame.

The complainant’s failure to present the claim within the 6-month time limit must have been due to the reasonable cause relied upon.  The complainant’s reason for not lodging her complaints relates to her attending various medical appointments and that she was not physically or mentally able to deal with matters relating to the Workplace Relations Commission.  The respondent asserted that this excuse does not stand up to scrutiny when the facts of the case are examined objectively and further that there is no causal link between the reason proffered by the complainant and her failure to lodge her complaints.

It was submitted that the complainant’s evidence that her condition continued during employment until the end of 2021 or mid-2022 establishes that the condition was operative in September 2021 when she referred her claim to the Commission, therefore there can be no causal connection between the reason proffered and the delay.  The length of delay in referral of the claim is at the higher end of the scale with no real explanation for the delay.

In circumstances where the claim was referred outside the statutory 6-month time frame and there was no reasonable cause to extend that time frame, there was no jurisdiction to deal with the claim.

Communication to the parties regarding the complaints for adjudication

My communication was drafted specifically for the party to whom it was addressed however the substance of the communication was the same.

The text of the communication to the complainant, in relevant part, was as follows:-

“…

I advised the parties of my view that it was necessary to resolve the issue concerning the complaints for adjudication prior to a rescheduled hearing.  To that end, I have carefully reviewed and reflected on the complaint form and the submissions of the parties at the hearing.  I did not receive any submissions on this issue after the hearing on 20 September 2022.

You referred complaints to the WRC on 6 September 2021.  The boxes ticked in the complaint form were under the headings unfair dismissal and discrimination/equality/equal status.  The marked specific complaint boxes were:-

Ø  I was unfairly dismissed and have at least 12 months service (Unfair Dismissals Act)

and

Ø  I have been discriminated against by a person, organisation/company who provides goods, services or facilities (Equal Status Act 2000)

The respondent raised preliminary objections at the hearing relating to time limits and a complaint under the Equal Status Act 2000 being misconceived. 

As I explained to you at the hearing, the Equal Status Act 2000 prohibits discrimination in the provision of goods and services.  You said that your discrimination complaint related to you having a disability and not getting fair treatment or any allowance by your employer in this regard.   The respondent maintained that the complaints before me, and which the respondent had been asked to address, were pursuant to the Unfair Dismissals Act 1977 and the Equal Status Act 2000. 

I have noted in particular from the complaint form that you inserted:-

“I was dismissed because I didn’t take up employment in a placement offered due to an underlying health condition.”

I further note under the Discrimination/Equality/Equal Status section of the complaint form that, in response to a question about the date of notification using the ES1 form, you inserted:-

“Didn’t know about this process at the time of meetings.”

and

that you detailed the most recent date of discrimination as 14 September 2020 under the Employment Equality Acts section.

I am of the view that the narrative and detail inserted by you on the complaint form demonstrate that your complaints to the WRC relate to your employment with the respondent.  I am satisfied, having regard to the complaint form, that your equality complaints can be properly categorised as that of discriminatory dismissal and a failure to provide reasonable accommodation.  I am also satisfied, having regard to the timeline in the respondent’s submission on the substantive claims, that the respondent is in a position to deal with complaints relating to your employment with it.       

In terms of you not having ticked a box on the complaint form or having ticked an incorrect box, the complaint form is not a statutory form.  I am of the view that flexibility is warranted and necessary in circumstances where you are representing yourself and having regard to your submission at the hearing that you were not certain about the detail when completing the complaint form.  I am further of the view that there is no prejudice to the respondent in this regard as it has a full opportunity to defend the complaints by way of written submissions and at the rescheduled hearing.

I am satisfied therefore that the complaints referred to the WRC are pursuant to the Unfair Dismissals Act 1977 and the Employment Equality Acts 1998-2021. 

For the sake of clarity, I have not made any decision on matters relating to time limits, a dismissal, including the fairness or otherwise of any dismissal, or any other issues in this case.

Parallel Complaints

You have referred a complaint of discriminatory dismissal under section 77 of the Employment Equality Act 1988 and a claim of unfair dismissal under the Unfair Dismissals Act 1977.

In accordance with section 101(4)(a) of the Employment Equality Act 1998, the discriminatory dismissal complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn unless, not later than 41 days from the date of this letter, you withdraw the claim under the Unfair Dismissals Act 1977.

You are now requested to advise the Commission in writing not later than41 days of the date of this letter if you wish to withdraw the claim under the Unfair Dismissal Act 1977. If you withdraw the claim of unfair dismissal within the 41 day period, the Commission will then make arrangements to process the discriminatory dismissal complaint under the Employment Equality Act 1998.

You should note that if you do not respond to this letter within the 41 day period, your discriminatory dismissal complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn and the Commission will then make arrangements to process the complaint under the Unfair Dismissals Act 1977.

…”

Special circumstances

The complainant’s evidence included information on her health conditions, including a mental health condition.     This information was relevant to my consideration of the time limits for referral of a claim to the Workplace Relations Commission (“WRC”), which I informed the parties I would deal with as a preliminary issue.  I have had regard to the WRC’s guidance note on the Workplace Relations (Miscellaneous Provisions) Act 2021 and note the examples of “special circumstances” provided, which include circumstances where a party has a disability or medical condition which they do not wish to be revealed.  It was clear to me from the complainant’s demeanour on giving evidence that she was not at all comfortable speaking about matters relating to her health, and it is noted that this was in the context of a private hearing.  In the particular circumstances of this case and my investigation, I have determined to anonymise the parties in this decision due to special circumstances, namely medical conditions which were the subject of the complainant’s evidence and which she did not wish to be revealed.

Preliminary Issue:  Time limits

There are time limits for the referral of claims of unfair dismissal to the WRC. 

It is not disputed that the complainant was informed by correspondence dated 14 September 2020 that her employment with the respondent was being terminated by reason of incapacity.  The complainant internally appealed the respondent’s decision by letter dated 22 September 2020.  The outcome of the appeal was communicated to the complainant by correspondence dated 16 December 2020.

I have reviewed the various communications concerning the termination of employment and appeal, along with the complainant’s contract of employment and the applicable disciplinary procedure, and find that the date of dismissal, in accordance with section 1 of the Unfair Dismissals Acts 1977-2015 (the “Acts”), is 12 October 2020.

Section 8(2) of the Acts provides:

‘(2) 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 subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on 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, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.’

The complainant referred her claim to the WRC on 6 September 2021, clearly outside the 6-month time limit set in section 8(2)(a) of the Acts.  The 6-month time limit may be extended to up to 12 months where I am satisfied that there was reasonable cause for not referring the claim within the 6-month period.

It is noted that section 8 of the Acts is formulated slightly differently to its counterpart, section 41 of the Workplace Relations Act 2015, however this makes no difference to the outcome of this case insofar as the relevant test is that of “reasonable cause”.

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 wherein the Court stated:-

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant 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 claimant at the material time.  The claimant’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 claimant 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 length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon amounts to reasonable cause for that delay.

Whilst the complainant has given reasons for why she did not refer her claim within time, namely that she was attending various medical appointments and was not physically or mentally able to deal with the issues relating to the WRC, I cannot find that this explains and excuses the delay for the following reasons.

The complainant initiated and engaged with the respondent in her appeal of the respondent’s decision to terminate her employment.  I note that this involved the complainant preparing her letter of appeal and attending a meeting with the respondent on an online platform. It was the complainant’s evidence that her medical condition meant she could not refer her claim to the WRC within the 6-month time limit.  She advised that the medical condition was diagnosed in the summer of 2020, before her employment terminated, and that she felt its effects and symptoms from this time and following the termination of her employment.  The complainant confirmed that the symptoms began to improve in or around the end of 2021/2022. It is noted therefore that when the complainant referred her complaint to the WRC on 6 September 2021, she was still experiencing the effects and symptoms which she relies on to explain and excuse the delay. 

The complainant submitted one letter evidencing an outpatient appointment at a Dublin hospital in March 2021.  Whilst I did not have evidence of other hospital or GP appointments and accepting the complainant’s evidence of having attended other appointments, I am not satisfied that the extent of the medical appointments explains and excuses the delay. 

I note the complainant’s letter of appeal dated 22 September 2020 wherein she outlines mental health difficulties and side effects of medication and states that “It is only now …, that my focus has come back.”  I accept the complainant’s evidence about how she was feeling generally but I did not have before me any medical evidence to support any assertion that the complainant’s health prevented her from referring a claim to the WRC.  I also note that the complaint was lodged with the WRC close to the end of the maximum 12-month period. 

I accept the respondent’s point that the lodging of a complaint with the WRC can be done in a very short period of time, that it is not a stressful process and did not require interaction with the respondent.  The complainant submitted that she was not able to get assistance with her complaint from certain organisations due to Covid-19 and staff shortages.  However, all that was required was for the complainant to complete and submit a complaint form, online or the paper version, within the 6-month period after the date of dismissal.  She did not require any assistance to do this and could do it at any time and from any location.  Indeed, this is exactly what the complainant did in September 2021.  

Based on the evidence before me, I am not satisfied that there was anything materially different in the complainant’s circumstances in the 6-month period after the date of dismissal and September 2021 when she referred her claim.

For the reasons set out above, I find that the complainant has not established that the referral of her claim was prevented due to reasonable cause.  It follows that I do not have jurisdiction to decide the claim pursuant to the Acts as it was not submitted within time and the late submission of the complaint was not prevented due to reasonable cause.

CA-00045989-001

I do not have jurisdiction to decide the claim pursuant to the Unfair Dismissals Acts as it was not submitted within time and the late initiation of the claim was not prevented due to reasonable cause.

In the circumstances, my decision is to dismiss the claim.

CA-00045989-002

This complaint was withdrawn by the complainant at the outset of the hearing.  Accordingly, I find that this complaint is not well-founded.

Nature of complaints – non-statutory complaint referral form – Unfair dismissal – Time limits for referral of claim – Preliminary issue