ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049144

Complaint:

Date of Adjudication Hearing:  07/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.  The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public.  That may result in decisions no longer being anonymised.  Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

Section 41 (13) of the Workplace Relations Act 2015 as amended provides:

“Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings, (or part thereof) should be conducted otherwise than in public.”

Section 41 (14) provides:

(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

As provided for in Section 41 (13) and (14) of the Workplace Relations Act 2015 (revised) I have decided that the proceedings should be held otherwise than in public.  I have determined that due to the existence of special circumstances, that is the existence of sensitive medical information, information that would identify the parties in relation to whom the decision is made should not be published by the Workplace Relations Commission.

Background:

The Complainant was dismissed following lengthy periods of sick leave. 

Summary of Respondent’s Case:

The Complainant was employed by the respondent from the 9th April 2001 as a Production operative and later as a Warehouse Operative, until his dismissal on 25th May 2023.

Preliminary issue

The complainant has lodged a complaint for unfair dismissal under section 6 of the Unfair Dismissals Act 1977, stating he was unfairly dismissed on the 25th May 2023 by the respondent.

The complainant has lodged the complaint on the 25th November 2023.

 Section 8(2) of the Unfair Dismissals Act 1977 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 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 respondent further refers to section 18(h) Interpretation Act 2005 deals with the interpretation of periods of time that are set down in legislation, as follows:

“(h)Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”…

The respondent would refer to the decision in Ryanair DAC Ryanair and Jaroslav Strand UD/18/149 which held that:

The wording of section 18(h) of the Interpretation Act 2005 is comparable to that of section 11(h) of the Interpretation Act 1937 which section fell to be considered by the High Court in McGuinness v Armstrong Patents Limited[1980] 1 IR 289. In that case, McMahon J, held that in enacting section 11(h), the Oireachtas had opted for a different approach to that of the “well settled rule of law in England” whereby “When a period of time prescribed by a statute is defined as a period ‘from’ a particular event … the day of the event is excluded in computing the period.” Later in the judgment, he remarked, “I would gladly adopt any construction of [section 11(h)] which would achieve uniformity in the laws of England and of Ireland in computing periods of time, but I do not see how the provision can be construed in that way.” Applying section 18(h) of the Interpretation Act 2005 to the facts, it is apparent that the limitation period specified in section 8(2) of the Unfair Dismissals Act 1977 expired on 8 October 2017 – one day prior to the date on which the Complainant actually referred his complaint to the Workplace Relations Commission. The claim was therefore referred out of time and, if the substantive complaint is to be allowed to proceed to hearing, the Complainant must first demonstrate to the satisfaction of the Court that there was reasonable cause which prevented him giving notice of complaint within time.’

Applying the above case law to the present case, considering the complainant lodged the present compliant on the 25th November 2023 alleging unfair dismissal on the 25th May 2023, it is respectfully submitted that the Complainant is out of time to bring his complaint for the purposes of the Workplace Relations Act 2015, the deadline for the submission of the compliant having been the 24th November 2023.

Reasonable Cause

The Respondent cites the case of Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, in which the Court outlined the test pertaining to the extension of time limits.  The Respondent argues no reasonable cause exists or existed to extend the time.

It is argued that the complainant, who was in possession of all material facts and documents regarding his employment following the conclusion of the appeals process in August 2023 and a GDPR request should be time barred from the present claim.

Case

The complainant commenced employment with the respondent on the 9th April 2001 as a Production Operative.

From 2008 onwards, the complainant’s health began to deteriorate. As per the complainant’s claim papers, which can be found at page 1, he was diagnosed with ulcerative colitis in 2010 which necessitated several major surgeries.

During the period the respondent supported him through his illness. The complainant availed of the full Sick Pay Scheme many times over the years, 2008, 2012, 2015, 2019, 2020, 2021, 2022, 2023. A spreadsheet outlining the sick leave taken by the complainant between 2007 and his dismissal in 2023 was supplied.  Many of the days the complainant took as sick leave were Mondays and the complainant regularly received extra holiday days so he could attend hospital and doctor appointments.

In 2020 with the onset of the Covid 19 pandemic, the complainant provided a medical certificate which stated that as he was a vulnerable worker he should remain absent from work.

The complainant remained absent from work in line with Covid guidelines and the advice of his doctor from the 6th of April 2020 until the 22nd of June 2020. This was supported by a series of sick notes.

During 2020, the company operated strict Covid guidelines and sought to support the complainant as a vulnerable worker upon his return to work.

During 2020 the complainant had many unauthorised absences in which he would fail to appear for work or notify his managers.

The respondent sought to support the complainant during this period by listing these days as holidays to ensure that he would receive payment during this difficult period.

The respondent intended to give a warning to the complainant regarding his unauthorised absences in January of 2021. There were discussions between managers Mr G, (the Complainant’s manager), Mr B and Ms M regarding this although it was decided that it would be best to wait until after Christmas to discuss the matter with the complainant.

In January of 2021, the complainant’s health deteriorated and went on sick leave from the 4th January 2021. The respondent received a series of medical certificates certifying this period of illness.

The respondent remained in contact with the complainant during this period of sick leave.

On 10th February 2022 the respondent sent a request to the complainant for a date he would be able to return to work. The letter outlined the procedure that would be followed with regards his return to work. In addition, the letter outlined that there was a possibility of the complainant’s employment being terminated is he was unable to return to work.

An Occupational Health assessment was organised for the complainant at the end of March 2022. This process took several weeks to complete, and the final report was received on 9th May 2022.

As recommended by the occupational health report, the complainant return to work on a part-time basis to facilitate his return. He returned to work for a 3-day week for 3 weeks beginning on 23rd May 2022.

On the 18th July 2023 the compliant again went on certified sick leave until 29th July 2023. A medical certificate for this leave was received by the respondent.

on 14th September 2022 a welfare meeting was held with the complainant to discuss his absences and capability to perform his role.  The complainant was advised that he could be accompanied by a representative which he declined.  It was explained to the Complainant that there was concern from the complainant’s direct manager, Mr K, that the complainant required retraining on his role each time he returned to work.  The complainant was warned that if the absences continued, he was at risk of losing his job as the respondent requires its employees to be available for work and needs reliability from its employees.

There were further absences from January to April 2023, which caused the Respondent considerable operational difficulties. The Complainant was met on 11 April 2023 where he was given a final written warning.  He was invited to have a representative or colleague with him but he declined.

The Complainant went on sick leave on 3 May 2023.  He was dismissed at a meeting on 25 May 2023 when again he declined representation.

The respondent respectfully submits that the complainant was fairly dismissed on the grounds of medical capability following a lengthy, substantive process.

Evidence on affirmation was given by Managers Mr K, Mr G and Ms M.  Evidence was given in relation to the Complainant’s performance and health issues and the meetings held with him.  The Complainant was a very good employee and skilled at the early part of his employment.  His health issues and absenteeism caused operational difficulties and it was no longer sustainable to keep him in employment.  There were no other jobs he could have been considered for in the employment.

Summary of Complainant’s Case:

A written submission in the narrative of the complaint form stated that the Complainant suffered from serious health issues including ulcerative colitis, pancreatitis and Diabetes which led to unavoidable absences on medical grounds during the period 2018 to 2023.   The Covid period led to a prolonged absence in 2021 and the Complainant had no choice but to be absent due to the Government direction that vulnerable persons should stay at home.   The Complainant appreciated the efforts of the Respondent to keep him in work.  He did not agree that the work in the Warehouse/Stores was less strenuous and he felt that more could have been done to accommodate him.   He was very disappointed to have been dismissed after 22 years loyal service.

Findings and Conclusions:

Preliminary issue – time limit

Section 8(2) of the Unfair Dismissals Act 1977 as amended 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 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 complaint was received six months and one day after the Complainant was dismissed from his employment.  I note. The Respondent acknowledged this date of 11 August in its submission.   The delay is by one day in submitting his complaint.  I note the Respondent’s cogent argument in relation to this matter in Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425.   However in that case the Court also found:

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 Complainant has a good

arguable case.’’

 I find one day is a very short delay, I note the delay in confirming the termination, which came to the Complainant on 11 August 2023 and I agree to extend the date.

Substantive case

The Complainant was dismissed after 22 years’ service.  The Respondent’s position is that the dismissal was due to the frustration of the Complainant’s contract of employment and capability to perform his role.  The Respondent made efforts to accommodate the Complainant by transferring him to the Warehouse/Stores where it was deemed he may have been less liable to heavy duties.  However, the work in the Warehouse/Stores seems to have been quite demanding, and absences caused operational difficulties. I note that in notes of a conversation between the Stores Manager and HR which was in the Respondent’s booklet of submissions, that the Complainant was deemed by colleagues in Stores  to have not been carrying his weight.  While the Complainant’s colleagues in Stores appear to have had opinions on the Complainant’s work performance, the Respondent has relied on his dismissal being fair in the circumstances of incapacity due to his absences on sick leave.

Section 6 (1) of the Unfair Dismissals Act 1977 as amended provides:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regards to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6 (4) of the Act provides:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

I have decided that the Complainant was unfairly dismissed and I award him the sum of €8,232 compensation.   This sum is not inclusive of the 10 weeks already paid to him.

Dated:   04-12-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: