Complainant

Respondent

Parties

Angela  Byrne

Galro

Representatives

  Self-Represented

Des Kavanagh Des J. Kavanagh HR Consultancy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052471-001

26/08/2022

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

CA-00052471-002

26/08/2022

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

CA-00052471-003

26/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses for the respondent gave their evidence under affirmation.  Cross examination by the other party was facilitated.

CA-00052471-001 – Amended terms of Employment

The complainant submitted that she was not notified of a change in the terms of her employment in June 2021 in relation to bank holiday payments.

CA-00052471-002 – Unfair Dismissal

The complainant submitted that she was unfairly dismissed when she was removed form the payroll with effect from 21 February 2022.  She submitted that she was only notified of this when she should to submit updated sick certificates which were refused.  She received notification from the respondent on 27 April 2022.

CA-00052471-003 – Minimum Notice

The complainant submitted that she was entitled to minimum notice payment when her employment was terminated.

The complainant stated in evidence that she was on long term sick leave and was submitting regular sick certificates. She agreed that she was late submitting the certificates covering the period January and February 2022 but stated that when she tried to submit the certificates, she was informed that she was no longer on the system. The complainant stated that she sought the reason for this repeatedly and eventually was informed that she had been removed from the payroll.

The complainant stated that when she attended the respondent’s occupational health specialist it was his belief that she had not improved but that he wanted to see her again six months after the consultation. She stated that this would be in around February 2022

CA-00052471-001 – Amended terms of Employment

The respondent submitted that the position in relation to bank holiday payments did not change.

CA-00052471-002 – Unfair Dismissal

The respondent submitted that it did not dismiss the complainant.  The complainant was out on long-term sick leave and when she stopped submitting sick leave certification, she was deemed resigned.

CA-00052471-003 – Minimum Notice

The respondent submitted that the complainant’s employment came to an end when she was deemed to have resigned and accordingly was not entitled to a minimum notice payment.

One of the witnesses for the respondent, the complainant’s line manager, stated in evidence that the complainant was out on long term sick leave and that she was offered several chances to return to work. She stated that the complainant wanted to return to her original place of work but that it could not guarantee her safety in relation to a posting there. Another witness for the respondent, the Head of Care, indicated that the complainant was submitting regular sick certificates but ceased to do so.  The owner of the company when giving evidence outlined the history of the complainant’s employment and indicated that she was providing sick certificates up to January 2022. He outlined that as this was during Covid, a few employees simply left employment and that when the complainant did not provide updated sick certificates, she was considered to have resigned her position.  He confirmed that the respondent never informed the complainant that her employment had come to an end.

CA-00052471-001 – Amended terms of Employment

The complainant made a complaint regarding an alleged change to the terms of her employment that took place in June 2021.  She made her compliant on 26 August 2022.

Section 41(6) and (8) of the Workplace Relations Act, 2015 govern the time frame for submitting claims for consideration by the Workplace Relations Commission.  These sections state as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As this case was not presented within the time period of 6 months (extended to 12 months due to reasonable cause) as outlined in the legislation, it is out of time and cannot be considered under the legislation.

CA-00052471-002 – Unfair Dismissal

The respondent submitted that the complainant was not dismissed but rather was deemed to have resigned. It was suggested that this decision was taken on the basis that the complainant had ceased providing sick certificates in relation to her ongoing sick leave. The respondent confirmed that the complainant was covered by sick certificates up to 15 January 2022 and that it had not received any additional certificates before its management meeting of 21 February. Two witnesses for the respondent stated that the decision was taken at that meeting having regard to all the circumstances of the complainant's employment that she was no longer interested in being employed with the company and her lack of communication was that for deemed to amount to a resignation.

The complainant stated that on a previous occasion when she had not submitted a sick certificate, the respondent had contacted her to remind her to do so. The complainant stated that as part of her ongoing sick leave she was referred to the respondent’s occupational health specialist. The doctor considered her condition, indicated that he felt it was not improving, but looked to see her in an additional six months’ time, that is February 2022.

Having considered the circumstances presented by the parties in relation to this matter, I note that the respondent indicated that it took all the circumstances into account when deeming the complainant resigned.  On the face of this, it would appear that the respondent took into account that's the occupational health specialist was seeking to re-examine the complainant sometime during February 2022. The respondent confirmed that it never contacted the complainant regarding her alleged resignation and confirmed that it was only some two months afterwards when it confirmed her employment status to her.

Having regard to all the written and oral evidence presented to me I am not satisfied that a reasonable employer would conclude that the complainant had resigned in the circumstances outlined by both parties with the support of the written documentation. In the circumstances I consider that they respondent dismissed the complainant and I find that the dismissal was unfair.

The complainant was out on long term sick leave before being dismissed and was in receipt of a long-term illness payment before her dismissal and continued to receive that payment after her dismissal. She stated that she was not certified as fit to return to work but that she could not have obtained a new position as she had no references. She confirmed that she had not sought a reference from the respondent and indicated that although she was offered several roles with other employers, she was not in a position to accept them.  I am not satisfied that the complainant has established that she suffered a financial loss.

Section 7(1)(c)(ii) of the Unfair Dismissal’s Act 1977 makes provision for redress in such circumstances and states that:

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The complainant’s agreed salary was €17 per hour for a 36-hour week.  This amounts to a weekly wage of €612.  Having regard to all the circumstances, I consider compensation of four weeks salary to be just and equitable.

CA-00052471-003 – Minimum Notice

The respondent suggested that the complainant resigned from her employment. However, I have found that the complainant was unfairly dismissed. In the circumstances of a dismissal the complainant is entitled to be paid minimum notice and I find that the Act has been contravened and that the employee is entitled to be paid compensation for the loss sustained by reason of the contravention.

Section 4(2) of the Minimum Notice and Terms of Employment Act, 1973 outlines the minimum notice periods as follows:

(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,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Having regard to the legislation and the duration of the complainant’s employment, I find that the complainant is entitled to two weeks’ notice.

CA-00052471-001 – Amended terms of Employment

Having considered all the written and oral submissions in relation to this complaint, my decision is that this compliant is out of time and cannot be considered under the legislation.

CA-00052471-002 – Unfair Dismissal

Having considered all the written and oral submissions made in relation to this complaint, my decision is that the complainant was unfairly dismissed.  Having regard to all the circumstances, I award the complainant four weeks salary, i.e., €2,448 which I consider to be just and equitable.

CA-00052471-003 – Minimum Notice

Having considered all the written and oral evidence in relation to this complaint, my decision is that the Act has been contravened and I direct the respondent pay the complainant compensation equivalent to two weeks salary, i.e., €1,224 for the loss sustained by reason of the contravention.

Amended terms of employment – out of time – Unfair Dismissal – fairness of dismissal not established – Minimum Notice – entitlement to payment