Complainant

Respondent

Parties

Maria Necir  Borges Da Mota

Green Park Nursing Home Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Marianne Byrne, HR Consultant

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-00065471-001

17/08/2024

The complainant says she was unfairly dismissed when she had to extend a period of leave as she needed surgery. The respondent says the leave was not authorised, it was further extended and no medical certificate was submitted to them.

The respondent submits the complainant was on annual leave in Turkey from 24 April 2024. The complainant changed this from annual leave to having a procedure in a clinic in Turkey. On her return she sent a message to the respondent on 3 May 2024 attaching a medical certificate from a GP in Tuam, saying the complainant was in post-surgery and certifying her from 24 April to 6 May. The clinic in Turkey sent a certificate for the same period of time.

The respondent believes the complaint travelled to Turkey with the specific intention of having the procedure carried out and must have booked it in advance of her travelling. She failed to inform management of her intentions and failed to produce a medical certificate on time.

Having returned to work after her trip to Turkey and sick leave the complainant then informed a Director that she intended to travel to Brazil from 24 June to 21 July 2024. She had mentioned this before her trip to Turkey but it was not authorised by management. She ignored that she had not been granted the time off and booked flights. After she left, her sister who also works for the respondent and went with her, informed the Director that the complainant would not be back until the first week in August.

As the leave had not been granted the complainant was Absent Without Authorisation. The Director had not authorised the leave and had told the complainant that he could not guarantee that he could hold her job open for this length of time. He thought this a less threatening approach than formal procedures that would normally be entered into but wanted her to understand fully the situation she was leaving management with.

Despite this the complainant proceeded to go to Brazil and instead of returning on 21 July she stayed until the beginning of August; showing a complete contempt for any rules or regulations.

On 4 July the complainant asked the Director why she had been taken off workplace WhatsApp group and he explained “I have taken everybody who is gone and staying gone for more than 4 weeks off the group and people will have to re apply for their positions if they return”. 

The complainant submits she went back to her home country, Brazil, for a holiday. This was mostly to visit her family and also to take care of some much-needed dental work. What was supposed to be a short trip turned into a much longer stay because she ended up needing surgery. She made sure she got medical certificates to explain the situation.

Despite this, when she finally managed to return she was told that she was dismissed, she was not told this when she was away.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company.

The respondent was reluctant to say if they had dismissed the complainant and if they had when the dismissal took place.

I note that on 4 July, when she was in Brazil the complainant asked the respondent why she was no longer on the company WhatsApp group and was told “I have taken everybody who is gone and staying gone for more than 4 weeks off the group and people will have to re apply for their positions if they return”. On 5 August, on her return from Brazil the complainant was told, when she returned from Brazil and said she was available for work, “I had to replace you when you were gone for so long so I don’t have any at the moment”. I take this to show that the complainant was effectively dismissed when she was in Brazil, I take her dismissal date to be 4 July. I also conclude that the reason for the dismissal was the taking of unauthorised leave and what the respondent portrayed as ‘a complete contempt for any rules or regulations’.

Section 6 of the 1977 Act provides:

“6. – (1) 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.

(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:

... (b ) the conduct of the employee”

It is not for me to decide if the actions of the complainant, in relation to the taking of leave were as described by the respondent. The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. stated the following:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

The respondent failed to carry out any investigation in relation to the conduct of the complainant which involved the complainant, she was not invited to any meeting and was not formally advised of the outcome of any investigation and was not formally informed of her dismissal. In these circumstances the respondent is unable to show that they acted reasonably.

Accordingly, I find that the complainant was unfairly dismissed.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case.

The complainant made efforts to find employment and did so just over seven weeks after her dismissal. The hourly pay was more than she had been earning with the respondent.

Taking all factors into account, I award redress of eight weeks pay, €4,064.00, as just and equitable compensation for the unfair dismissal.

For the reasons stated above I find the complainant was unfairly dismissed and I award redress of €4,064.00, as just and equitable compensation for the unfair dismissal.

Unfair dismissal - no investigation