Complainant

Respondent

Parties

Monika  Janosikova

Carton Bros Ltd trading as Manorfarm

Representatives

  In person

Rory Treanor B.L. instructed by  Brady McGreevy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054432-001

09/01/2023

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

CA-00054711-001

26/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00054432-002

09/01/2023

The complainant was employed by the respondent as a General Operative (GO) since 2007. The complainant suffered an injury at work in April 2018 and was absent from work on certified sick leave until March 2019 when she returned to work firstly on a three-day week and then on a four-day week. This resulted in further certified sick leave from August 2019 until the complainant was dismissed on incapacity grounds with effect from 2nd September 2022.

The complainant has submitted three complaints for adjudication and was provided with an Interpreter at the adjudication hearing as requested. The complaints relate to annual leave entitlements, an alleged unfair dismissal and redundancy entitlements. The complainant represented herself at the adjudication hearing and outlined her complaints by way of sworn evidence.

CA-00054432-001 – Organisation of Working Time Act, 1997.

The complainant contends that she did not receive her annual leave entitlements in contravention of the Organisation of Working Time Act, 1997.

CA-00054711-001 – Unfair Dismissals Act Complaint.

The complainant stated in evidence that she was unable to do the job for which she was employed following the injury that occurred in April 2018. The complainant stated that her role involved lifting and being in a cold environment and even though she had tried to return to work on a reduced working week, the continued lifting and exposure to the cold exacerbated her health problems making it impossible for her to return to the role of GO within the organisation.

In cross examination, Counsel for the respondent put it to the complainant that efforts were made to facilitate the complainant’s return to her role on a reduced pattern of attendance but was ultimately unsuitable. Counsel stated that there were no vacancies in other areas of the respondent’s business and that the respondent could not create a role where none existed. This was accepted by the complainant.

CA-00054432-002 – Redundancy Payments Act complaint.

The complainant contends that she is entitled to a redundancy payment due to her dismissal from the employment.

CA-00054432-001 – Organisation of Working Time Act, 1997

In respect of the annual leave complaint, the respondent contends that, as the complainant was not at work since 28th August 2019, she had not accrued annual leave since then.

CA-00054711-001 – Unfair Dismissals Act Complaint

Counsel for the respondent outlined in written submissions that the complainant had been employed as a GO since 2007 and suffered an injury at work on or about 17th April 2018. Counsel stated that the complainant returned to work on modified duties on 15th March 2019 working three days per week with alternate days off to rest. The complainant returned to work four days per week from 6th May 2019 with a view to returning to work five days per week. Counsel stated that the complainant was subsequently certified as unfit to work and did not return to work at all thereafter. Counsel stated that the respondent made every effort to facilitate the complainant’s return to work on a phased basis following the injury and the complainant’s continued absence since 2019 resulted in a process that ended the complainant’s employment on incapacity grounds where the complainant herself accepted she could no longer work in the role of a GO and there were no vacancies in other areas of the respondent organisation. Counsel for the respondent confirmed that it had engaged with the complainant on the issue, that she was aware that her position in the organsiation was at risk due to her incapacity, that she was given an opportunity to be heard and that efforts had been made by the respondent to support her return to work which had proven to be unsuccessful.

CA-00054432-002 – Redundancy Payments Act complaint.

The respondent stated that the situation leading to the dismissal of the complainant was based on the complainant’s inability to return to work in her role as a GO. The respondent outlined that it needed a permanent replacement for the complainant and that the role did not become redundant. In those circumstances the respondent contends that it was not a legitimate redundancy situation in line with the provisions of Section 7(2) of the Redundancy Payments Act, 1967 and the complaint should be dismissed.

CA-00054432-001 – Organisation of Working Time Act, 1997

Section 86(1) of the Workplace Relations Act, 2015, amends the Organsiation of Working Time Act, 1997 as follows:

86. (1) The Organisation of Working Time Act, 1997 is amended—

(a) in section 19, by the insertion of the following subsection:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”,

(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):

“(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”,

and

(c) in section 23, by the substitution of the following subsection for subsection (1):

“(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection—

‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.”.

In respect of the complainant’s annual leave accrual while on certified sick leave, I note that the complainant was dismissed on incapacity grounds with effect from 2nd September 2022. 15 months prior to that date is the 3rd June 2021. The relevant period for the purposes of the complaint relating to annual leave accrual is therefore the leave year that commenced on 1st April 2021 and ended on 31st March 2022. The annual leave year from 1st April 2022 – 2nd September 2022 is also reckonable. In that total timeframe, the complainant accrued a total of 28 days of annual leave which was her entitlement on cessation of employment in line with the provisions of the legislation. Accordingly, I find that this complaint is well founded.

CA-00054711-001 – Unfair Dismissals Act Complaint

The complainant was dismissed on capacity grounds following an injury at work and an attempted return to work on a phased basis that was facilitated by the respondent. The phased return resulted in a repeated absence on the basis that the complainant’s health issues had returned due to lifting items and continued exposure to a cold environment which she had said was not suitable to her. The complainant accepted that she was unable to return to work as a GO and that there were no other vacancies in the respondent organisation that were suitable to her.

The Applicable Law

Section 6(4) of the Unfair Dismissals Act, 1977 states as follows:

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Dismissal on Incapacity grounds

In the case of Bolger v Showerings (Ireland) Limited [1990 ELR 184] the High Court set out the key requirements to be met when an employee is being dismissed for incapacity:

·        (i) Ill health must be the reason for the dismissal.

·        (Ii) This must be a substantial reason.

·        (Iii) The employee must be notified that dismissal for incapacity is being considered; and

·        (Iv) The employee must be given a chance to be heard.

In the within complaint, the complainant accepted that the respondent had engaged with her in relation to her continued employment and she was aware that her position was at risk. The complainant also accepted the efforts of the respondent to support her return to work on a phased basis and that while it had looked at alternatives, there were no other options available. The complainant acknowledged this and was also given an opportunity to appeal her dismissal in line with the respondent’s procedures.

Having considered the matter, I empathise with the complainant in relation to her situation and the injuries which prevented her from returning to work. However, I am satisfied that the respondent acted reasonably towards the complainant and was supportive of her while she was absent on sick leave for a significant period of time and in its efforts to meet with her on a number of occasions in assisting her in her efforts to return to work.

In conclusion, I find that the complainant was not unfairly dismissed.

Mitigation of Loss

The complainant confirmed at the adjudication hearing that she is in receipt of disability allowance from the Department of Social Protection since June 2021 and has returned to education with a view to returning to work in a different occupation. At the date of the adjudication hearing, the complainant had not applied for any further positions since her employment ended. On that basis, I find that the complainant has not made efforts to mitigate her losses as she is required to do by the legislation.

CA-00054432-002 – Redundancy Payments Act complaint.

It was not disputed by the complainant that the respondent required a full time GO. The complainant also accepted that she was unable to return to work in that role.

The Applicable Law

Section 7(2) of the Redundancy Payments Act, 1967 at relevant part states as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The circumstances outlined above in Section 7(2) of the Redundancy Payments Act, 1967 are not applicable to the complainant’s employment. The role of GO continued to exist and the complainant could have returned to that role except her health prevented her from doing so. The role of GO did not cease to exist within the employment and accordingly the complainant did not have an entitlement to redundancy as she had claimed.

CA-00054432-001 – Organisation of Working Time Act, 1997 complaint.

This complaint is well founded. The respondent is directed to pay the complainant 28 days’ pay (€2,520) in respect of annual leave entitlements that accrued to her from 1st April 2021 – 2nd September 2022 while she was absent on certified sick leave.

CA-00054711-001 – Unfair Dismissal complaint

For the reasons stated I find that the complaint is not well founded.

CA-00054432-002 – Redundancy complaint

For the reasons stated, I find that the complaint is not well founded.

Unfair dismissal, redundancy entitlements, annual leave accrual