Complainant

Respondent

Parties

Ashley Moore

AGR Cosmetics Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00058683-001

06/09/2023

The complainant is a qualified dental nurse.  In November 2020 however, she started working as a receptionist in the respondent’s teeth whitening clinic in Dublin 12.  She worked on Thursdays and Fridays for €15.00 per hour.  In May 2021, following a period when she was out sick, she said that a new receptionist was recruited and, when she returned, she moved to work at teeth whitening.  The respondent’s submission indicates that the complainant was employed as a dental assistant to an orthodontist.

At the hearing, the complainant said that she had surgery in January 2022, following which she was absent for six weeks.  She had another operation in July that year, and, although she said that she returned to work for two days in August, she remained absent due to illness.  The complainant engaged in correspondence with the directors and they proposed that she would return to work in January 2023 on reduced hours.  She was unable to come back to work and, on March 8th 2023, one of the directors, Mr Thomas wrote to her to inform her that her employment was terminated.

It is the complainant’s case that her dismissal was unfair because it arose from her health problems which were complicated by the sale of her family home.  She was homeless for many months and she said that she slept in a tent and then spent a lot of money living in a hotel.  In her evidence, she said that she doesn’t want to go back to work for the respondent and that she is pursuing training for a different career.  She said that, since she was dismissed, she has been diagnosed with severe arthritis in her hip and she is waiting for replacement hip surgery.  Because of this, and due to her mental health condition, she has been unable to work.

In their evidence, the directors said that the complainant was a good employee, and that she was hard-working, an excellent communicator and a committed member of their team in Dublin 12.  They decided to terminate her employment very reluctantly, following her absence from July 2022 until March 2023, when there was no indication that she would return to work.  When she was absent, she did not submit medical certs, although the directors accept that the cause of her absence was illness.

The complainant worked for just four months in 2022, from March to June.  When she went absent to have surgery on her back on July 6th, she indicated that she would be back at work in six weeks.  Although it is the complainant’s evidence that she worked for two days in August, and that she was instructed to go home because she was sick, the respondent’s witnesses have no recollection of her being at work in August.  She didn’t submit medical certs and in October, she contacted an employee in the surgery seeking a reference to rent a house in Donegal.  In November 2022, Mr de Bromhead said that he got a phone call from a landlord seeking a reference to rent a property in Donegal to the complainant.  Also in November, the complainant sent a message to Mr de Bromhead letting him know that she had been admitted for treatment to a psychiatric hospital.  On November 30th, the complainant sent a message to Mr Thomas to say that her doctor would be in touch with him and in December, she sent a message to Mr de Bromhead saying, “see you in January.”

During the month of January 2023, the complainant contacted the respondents by WhatsApp, mainly seeking evidence of earnings and asking the directors to provide confirmation that she earned more than she did.  On January 25th, Mr Thomas sent her an email asking her to return to work for one day a week on Saturdays.  The complainant replied that she was not interested in working on Saturdays and she said that she would seek legal advice.

Following a heated phone call on February 8th, the complainant sent Mr Thomas a WhatsApp message asking him not to contact her again.  A few days later however, she contacted Mr Thomas asking him about a job vacancy posted on a recruitment website.  When Mr Thomas replied and asked her if she would be free for a telephone call, the complainant replied that she had been prescribed sedatives and that she couldn’t have a phone conversation.  

Sometime before March 6th 2023, Mr Thomas contacted the complainant and asked her to get a cert from her doctor to confirm that she was able to return to work on a part-time basis.  The complainant replied that she wasn’t well and that she would be in touch.  On March 6th, she sent an email asking why she was being considered for part-time work, although, since her commencement in November 2020, she had only ever worked for two days a week.  On March 8th, Mr Thomas wrote to the complainant to let her know that her employment was terminated.  In his letter, he said that, from the phone call of February 21st, it was apparent that the complainant wasn’t ready to come back to work and that, through no fault of hers or theirs, the clinic has been unattended for months and that this was placing a strain on the business.  In his evidence, Mr Thomas said that they were in a very difficult situation and that he feels that they did their best for the complainant.

Before dismissing the complainant, Mr Thomas said that he consulted with the two doctors in the clinic and they reached the conclusion very reluctantly.  He said that, in the absence of any communication from the complainant or her doctors about a return-to-work date, they had to move on.  Mr de Bromhead said that they had kept things open, but that, by March 2023, they had “to draw a line.”

In her evidence, the complainant outlined the significant difficulties she has experienced since July 2022, when she had surgery on her back.  She was then treated for a psychiatric condition and she also had a second operation.  On the day of the hearing, she was waiting to have hip surgery.  She said that her family home, where she had lived all her life, was sold, and she had nowhere to live with her two dogs.  She said that she ended up homeless, although she had money. 

The complainant said that all the time that she was off work was because she was sick.  She outlined her considerable health issues and she said claims that she shouldn’t have been dismissed when she was sick.  When she returned to work on Thursday and Friday the 18th and 19th of August, she said that she worked for five hours on each day and that the doctor in the surgery sent her home because she was sick.  She claims that she didn’t get paid for these hours.

Regarding the work she did in the clinic, the complainant said that she was assigned mainly to teeth whitening, and that the dentist in the surgery didn’t need much assistance.  

When I asked the complainant about what she expected from the hearing, she said that she wanted justice.  She said that she thinks what her former employers did by dismissing her was “distasteful.”  She said that she didn’t want to go back to work for them, and that, although she is a qualified dental nurse, she doesn’t want to work in dentistry again.  She is training to be an emergency medical technician.

The Relevant Law

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

“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 regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the case of this complainant, the conduct which resulted in her dismissal is her failure to demonstrate to her employer that she would be able to return to work in a reasonable timeframe.

Section 6(4)(a) of the Act provides that;

 “…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

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

In the case under consideration here, the issue is the complainant’s capability – is she capable of regular attendance?  The essence of the contract between an employer and an employee is that, for an agreed rate of pay, an employee will come to work regularly on the days they are contracted to do so.  It is accepted that when an employee is ill, they should not attend for work; however, when an illness interferes with an employee’s ability to attend work regularly, a dismissal for reasons of incapacity may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

It was apparent from the evidence of the respondent’s directors that they had no ill will towards the complainant and that they considered her to be a good employee.  There was no indication that the dismissal of the complainant was for any reason other than her ongoing absence.  At the hearing, on January 24th 2024, nine months after her dismissal, the complainant confirmed to me that she remains not fit for work.  It is apparent therefore, that, even if she had not been dismissed, she would still not be working for the respondent. 

The High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for ill health.  Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court.  In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

(1)   It was the ill health that was the reason for the dismissal;

(2)   That this was the substantial reason;

(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

(4)   That the employee was afforded an opportunity of being heard.”

Having considered the evidence, it is my view that the respondent dealt reasonably with the complainant, who has struggled with physical and psychiatric health problems that have impacted on her ability to be dependable and to attend work regularly.  This is the basis of the employment relationship, and, sadly, from the evidence submitted by both sides at the hearing, the complainant is not able to meet this requirement.

Having said that, when an employer is proposing to dismiss an employee, certain procedural steps must be followed, even by an unsophisticated employer, to ensure that that an employee at risk of dismissal is treated with openness and fairness.  This process requires fair notice that the question of dismissal for incapacity was being considered, as set out in Bolger, and, the opportunity for an employee to be heard in response to that notice.

Before their communication of March 8th 2023, confirming her dismissal, the directors gave no indication to the complainant that they were thinking about letting her go and they gave her no opportunity to respond to this proposal.  While the complainant is likely to have remained unable to come to work, she was entitled to know that her employer was considering dismissing her, so that she could offer a response, and, more importantly, to avoid any surprise or shock when the decision was eventually made.  It is reasonable in these circumstances for the complainant to be upset at being dismissed, and for her to feel that the respondent’s decision was insensitive, or, to use her words, “distasteful.” 

I find that, arising from the failure of the directors to notify the complainant of their intention to dismiss her, and their failure to give her an opportunity to respond to their decision, her dismissal was unfair. 

I decide that this complaint is well founded.  Since the date of her dismissal, the complainant remains unable to work due to illness.  Therefore, in accordance with section 7(1)(c)(ii) of the Unfair Dismissals Act 1977, I direct the respondent to pay her compensation of €1,200, equivalent to four weeks’ pay.

Dismissal, absence due to illness