ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003688
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 27/09/2016
Parties: Sales Advisor v A Retail Company
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and 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 Complainant was employed by the Respondent from 10th October 1998 until the employment was terminated on 25th April 2016. The Complainant was paid €530.00 gross per week and she worked 37.5 hours a week.
The Complainant referred a complaint to the Workplace Relations Commission on 24th June 2016 alleging the Respondent had unfairly dismissed her on 25th April 2016.
The Respondent did not dispute that the Complainant had been dismissed.
Summary of Respondent’s Position.
The Complainant was employed as a Sales Advisor from 19th October 1998. The Complainant commenced Maternity Leave and was due to return from Maternity Leave on 16th August 2014. The Complainant has been absent on certified sick leave due to post-natal depression effective from 17th August 2014 until the termination of her employment on 25th April 2016.
The Respondent has a policy to ensure fairness and consistency in managing employees on long term sick leave which is defined in the policy as either a period of absence of more than four weeks or repeated absences due to an ongoing condition. In line with this policy the Complainant was issued with a medical consent form in October 2014, which requires an employee to submit their GP details and for the employee to consent to the company’s Occupational Health Physician to contact their GP. The Health Physician is based in the UK.
The Respondent met with the Complainant in December 2014 at which the policy was explained. She was asked if she had a return to work date or if part-time or reduced hours or duties would assist her return. The Complainant was requested to discuss this with her GP and that a further meeting would be arranged.
The Company’s Occupational Health Physician in the UK compiled a medical report which was issued to the HR department in February 2015. The Complainant received a copy of this report. This confirmed her medical diagnosis with an expected return to work in 6 months.
A further meeting took place with the Complainant in April 2015 but she was not in a position to indicate a return to work date. She was informed that in accordance with the Company Policy she was to be referred to a named regional medical officer who would compile a report for the Occupational Health Physician. Following this a further report was made to the HR Department with a recommendation that if the Complainant had not returned to work after a further 6 months that she again attend the Regional Medical Officer.
A further meeting took place with the Complainant in December 2015. Again the Complainant was not in a position to confirm any return to work date even on reduced hours or duties. The Complainant was informed that the Respondent would not be able to hold her position open indefinitely. In January 2016 the Respondent received an updated Occupational Health Report from the physician in the UK who advised that the Complainant “is likely to be unfit for work for the foreseeable future, I would therefore suggest that you actively consider a definitive employment decision on the grounds of ill health”.
The Complainant attended a further meeting in February 2016 and an outcome meeting on 29th February 2016. The decision was to terminate her employment with effect from 25th April 2016 on the grounds of her ill health and her inability to fulfil her contract of employment. She was offered a right of appeal which she exercised. This appeal meeting took place on 13th April 2016. The Complainant was represented at this meeting and all previous meetings. The outcome was to uphold the decision to terminate the employment.
Summary of Complainant’s Position.
In January 2014 the Complainant gave birth to twins and was due to return from Maternity Leave In August 2014 but following a diagnosis of post-natal depression the Complainant was unable to return to work and continued to submit medical certificates from her GP. During her sick leave she was called to review meetings which took place on 4th December 2014 – 3rd April 2015 and 3rd December 2015. The Complainant was represented at all the meetings.
The Respondent referred the Complainant to the Occupational Health Department who issued a number of reports culminating in a final report in January 2016. On the basis of this final report the Complainant attended a meeting on 10th February 2016 following which a decision was made to terminate her employment effective from 25th April 2016. This was appealed and the outcome was to uphold the original decision to terminate the employment.
Mandate referenced a number of cases in support of their argument that where there is a prospect of recovery for an employee, a lengthy absence is required to frustrate a contract of employment. They argued that the Complainant was one of many sales advisors and from an operational point of view it raises the question of the necessity to terminate her employment at the time. The Complainant was not a burden on the Respondent as she was not in receipt of any sick pay.
Mandate also referenced the different medical conclusions of the regional medical officer who outlined a potential return to work in 4-6 months while the Occupational Health Physician in the UK, who never saw the Complainant, took the view there was no prospect of a return to work
On the basis of the evidence and comprehensive written submissions from both Parties I find as follows: The Complainant was absent from work following her Maternity Leave effective from 17th August 2016. The Complainant was diagnosed with post-natal depression arising from the birth of her twins in January 2014. The Maternity Protection Act, 1994 does not afford the Complainant protection as she was not on “protective leave” as defined by Section 21 of the Act. This is defined as covering Maternity Leave, Additional Maternity Leave or Leave on Health and Safety Grounds as defined by Section 18 of that Act. Accordingly I find that the dismissal of the Complainant has to be considered in the context only of the Unfair Dismissals Act.
There was no dispute between the Parties that the Complainant had been assessed in line with the Company Occupational Health Policy which manages long term absences as defined in the Policy. The Complainant was represented at all times by her Trade Union and the process of meetings and medical assessments continued from December 2014 to February 2016.
The Respondent has an Occupational Health Physician who is based in the UK but the Complainant was referred to a Regional Medical Officer in Ireland whom she met and this Officer issued reports to the Occupational Health Physician. He issued his report based on the Medical Officer’s assessment. I was not provided with a copy of the Medical Officers’ Report to the Occupational Health Physician.
Section 6 (4) of the Unfair Dismissals Act provides as follows: 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……the capability…..of the employee for performing work of the kind which he was employed by the employer to do”.
I note the statement of the Complainant at the Hearing that she was not in a position to give a possible return to work date.
On the basis of my findings above and in accordance with Section 8 of the Unfair Dismissals Act, 1994 I declare the complaint of unfair dismissal is not well founded.
Date: 7th December 2016