Complainant

Respondent

Parties

Aine  Kenny

Saggart Post Office

Complainant

Respondent

Anonymised Parties

Representatives

Dylan Macaulay of Macaulay & Co. Solicitors

Joan Shanley, Accountant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062027-001

06/03/2024

The complainant says she was unfairly dismissed when the respondent replaced her, whilst she was sick.

The respondent submits that in January and February 2020 the complainant worked her usual hours; 9.00am to 2.00pm om Mondays and 9.00am to 1.00pm on Fridays, a total of 9 hours each week. From March 19 – 6 September 2020 she was out due to Covid advisory. She worked from September 2020 to February 2021. From March 2021 to March 2022 the complainant was out sick. She worked most of the time from April to August 2022.

The complainant was then out sick from August 2022 to August 2023. She provided no medical certificates, despite the respondent asking what the position was. The respondent says they got no answer to phone calls made.

The respondent submits that they used someone already working in the post office to cover the complainant’s absence. Other employees also worked extra hours to cover.

The business needed a more permanent solution to remain open, her hours had to be covered as she had been on unauthorised absence on and off for over 2 years. In October 2022 the respondent wrote to her to explain this, and to offer the complainant some hours on Friday afternoons. A number of months later the complainant declined and said she wanted her regular hours.

The respondent wrote to the complainant on 7 September 2023 and said “As you have been out for such a long time I am sure you will understand I had no option but to employ a new person to cover your hours. With the situation as it stands I regret to inform you I have no hours to give you at this time”. The complainant did not respond for a further five months when she said as her position had been redundant she wanted her statutory redundancy pay.

The complainant submits she started working for the respondent on a casual basis from September 2003. She commenced on a permanent basis on 19 October 2006. On 11 March 2020 the first Covid-19 lockdown was announced. On 7 August 2020 Kildare was one of three counties put under highest restrictions for 6 weeks.

On 1 February 2021 the complainant became ill and was admitted to hospital on 11 February. The respondent was informed on 28 February 2021 by the complainant’s daughter. On 24 March 2021 the complainant was admitted to hospital again for more than 6 weeks. She was in hospital 3/4 more times each over a week plus 2 stays of over 10 days in another hospital.

The complainant returned to work on 11 March 2022 and worked until September 2022 when she became unwell. She did not return to work after this date.

On 14 September 2022 the respondent wrote to the complainant to advise her that other persons had been employed to perform her duties. This amounts to confirmation that the complainant’s employment was summarily terminated.

On 21 September 2022 the complainant replied to express her shock and advise she was ready to return to work. The respondent replied on 12 October 2022 to advise there were hours available on Friday afternoons. The complainant did not take up this proposal.

By letter dated 23 June 2023 the respondent enquired as to whether the complainant intended to return to work. On 10 July 2023 the complainant confirmed her availability to return to work. On 7 September the respondent advised that another person had been employed in place of the complainant.

The complainant submits she has been unfairly dismissed without notice and with an absence of fair procedures. The complainant was given no prior warning of the intention to terminate her employment and was at all times assured that her job was safe. The respondent took no steps to determine the complainant’s ability to return to work, did not advise the complainant that termination of her employment was being considered or provide notice of termination and did not afford the complainant the opportunity to be heard.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent. The communication between the parties was not clear. The complainant did not submit any medical certificates to the respondent in relation to her sick leave. The respondent did not formally write to the complainant looking for an explanation for her absence, or if and when she expected to return to work. It is clear that, informally, the respondent was aware the complainant was on sick leave and there were some messages between the parties in 2021 and 2022.

The respondent did cover the hours that had been worked by the complainant before she went on sick leave, as she needed to provide the service expected of a post office. On 14 September 2022 the respondent wrote to the complainant and said “I am sorry I cannot continue this as the office has got very busy in the past year or so and the girls are flat out working. I trust you understand my position. I had to get more permanent cover for your hours.” My conclusion is that this amounts to confirmation of the complainant’s dismissal. The complainant replied that she was fit to return to work. The respondent replied on 12 October 2022 to confirm that the complainant’s previous hours were covered on a permanent basis but there were hours available on a Friday afternoon. The complainant did not reply so the respondent wrote to her on 23 June 2023 (8 months later) and asked the complainant if she was intending to return to work. The complainant replied on 10 July 2023 that she was available to return to her previous hours. On 7 September 2023 the respondent replied that the complainant’s previous hours had been covered and she had no other hours available at that time.

The complainant’s dismissal was confirmed in the letter from the respondent dated 14 September 2022. Correspondence after this from the respondent gave no indication the complainant’s former job was still open. Hours were offered to work a Friday afternoon. Without investigating the fairness of the dismissal, I note that the complainant did not refer this complaint of unfair dismissal to the WRC until 6 March 2023; some 17 months later.

Section 8 (2) of the Unfair Dismissals Act, 1977 states as follows:

“(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.”

As stated above the complainant was dismissed by letter dated 14 September 2022. The parties had some correspondence subsequently but at no time was there any indication that the respondent would consider the complainant returning to her former hours.

The complaint was referred more than 12 months from the date of dismissal. In these circumstances I have no discretion to extend the time limits and I find I have no jurisdiction to investigate this complaint.

For the reasons set above I find that this complaint was referred more than 12 months after the date of dismissal and I, therefore, have no jurisdiction to investigate the complaint.

Time limits – referred more than 12 months after date of dismissal