ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007757
Anonymised PartiesA Child Care AssistantA Creche
ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010436-001 27/03/2017 Date of Adjudication Hearing: 22/11/2017 Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with 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 complainant worked as a childcare assistant on a salary of €1,700 per month for a thirty-seven hour week.
Summary of Respondent’s Case:
The complainant was on maternity leave from January 1st to October 22nd 2016. The respondent was expecting the complainant to return from her maternity leave on October 22nd 2016. Earlier, on July 18th a medical certificate had been submitted indicating that the complainant was suffering from post-natal depression. There was communication between the respondent and the complainant on a continuing basis and the respondent sought to establish when the complainant might return to work. The respondent says that the complainant was a highly-valued employee and relations between the two sides were amicable. She was offered the possibility of a pay increase and discounted childcare. The complainant said she would think about it and make contact with the respondent but she did not do so. The complainant also indicated to the respondent that she was thinking of returning to education and in fact she did so; undertaking a course as an accounting technician. However, the respondent fully expected the complainant to return to work in October. There were a number of telephone conversations (around three) in September 2016 and the respondent was left with the impression that the complainant was not intending to return as she was going to return to college to undertake a course not related to the work of the respondent. Nothing was heard from the complainant, in particular no medical certification was submitted at any stage in respect of her illness. The respondent statement of Terms and Conditions of Employment contains a requirement that a medical certificate be submitted on a weekly basis to cover periods of absence. During previous periods of sick leave absence, the complainant had complied with this requirement so was fully aware of the need to do so. In February 2017, having heard nothing from the complainant the respondent issued her P45 on February 2nd to her home address. The cessation date was given as October 21st 2016, the date on which she had been expected to return from her maternity leave. The complainant notified the respondent that she was pregnant again in March 2017. However, when the P45 was issued in February they had no knowledge of her pregnancy. The respondent heard nothing from the complainant between September 2016 and March 2017 when it was notified of her pregnancy.
Summary of Complainant’s Case:
The complainant says she was unfairly dismissed. In her evidence the complainant said that in the September period she was not able to give an answer as to whether she would return to work; having been suffering with post-natal depression in August. At that point she could not decide whether she was going to return to work or not. She contacted the respondent on March 14th, 2017 to say that she was pregnant again to be told that the respondent no longer regarded her as an employee.
Findings and Conclusions:
In a case of alleged unfair dismissal, the onus falls on the employer to show that a dismissal was fair and the Act spells out a number of grounds on which it might be held to be fair, subject to the operation of fair procedures. In this case, the respondent did bring the employment relationship to a close in February 2017 by sending the complainant her P45. By that date, she had been overdue to return to work by some three months. (Her maternity leave ended on October 21st 2016). The question that arises is whether the passage of three months without contact from the complainant is sufficient for the respondent to reasonably conclude that the complainant was not intending to return. In fact, the respondent submits that in making its assessment of the situation the clock began ticking mush earlier than that. The parties had apparently been on very good terms. The respondent spoke warmly in the course of the hearing of the complainant’s work and indicated that it had been very keen to have her return to work. It also submitted that not only could it not get a clear response from the complainant but her enrolment in a course not related to its work was an indication that she saw her working future elsewhere. Indeed, the complainant confirmed that she could not give a response. There is an obligation in the Maternity Protection of Employees Act that a woman on maternity leave give four weeks’ notice of her intention to return to work. A further factor is that the respondent sick leave scheme requires an employee to submit certification on a weekly basis from their medical practitioner. The complainant confirmed at the hearing that she was aware of this requirement and had complied with it in the past. But not only had the complainant not submitted medical certification she had failed to contact the respondent at all until March 14th to tell the respondent that she was pregnant again. In the circumstances, was the action of the respondent on February 2nd to send the complainant her P45 and conclude that the employment contract had been ended by the complainant reasonable. I find that it was. The complainant had not submitted a medical certificate for twenty-six weeks at that stage. She would not, or could not give the respondent any indication of when, or whether she might return to work. While this say have been partly attributable to her health, she nonetheless managed to undertake a course of study and this suggests she was simply keeping her options open. She made the respondent aware that she was undertaking that course to gain a qualification as an accounting technician. The respondent could not be faulted for viewing this as a negative indicator on the part of the complainant in relation to whether she was serious the resumption of her career as a child care assistant. It certainly provided a basis for a presumption that the complainant’s uncertainty about returning to work had been resolved in favour of not doing so. She had not made contact with the employer of any sort between September 2016 and March 2017. Indeed, it seems that the contact in September was initiated by the respondent. Taking all the circumstances into account, it is not reasonable to expect that the respondent would keep the position vacant in the absence of any contact from the complainant, and given the other information available to it. The failure to submit medical certification is particularly fatal to the complaint. She was fully aware of the need to do so. An onus feel on the complainant to communicate her position and intentions to the respondent. Therefore, the steps taken by it in early February to bring administrative closure to the position cannot reasonably be seen as a dismissal within the meaning of the Unfair Dismissal 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. For the reasons set out above I do not uphold complaint CA-00010436-001 and it is dismissed.
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words: Dismissal