FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DRIMBAWN MUSHROOMS (REPRESENTED BY MS ROSEMARY MALLON BL INSTRUCTED BY TUGHANS SOLICITORS) - AND - SIGITA LINDERMANE (REPRESENTED BY DONNERY & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication's Officer Decision No: ADJ-00003563.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Acts 1977 to 2015 on 12 June 2017. A Labour Court hearing took place on 12 October 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Ms Sigita Lindermane against her former employer, Drimbawn Mushrooms, that she was unfairly dismissed. By decision dated 4thMay 2017, the Adjudication Officer held that the complaint was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Lindermane will be referred to as “the Complainant” and Drimbawn Mushrooms will be referred to as “the Respondent”.
The Complainant appealed the Adjudication Officer Decision to the Labour Court on the 8thFebruary 2016. The appeal came before the Court on 12thOctober 2017.
Background
The Respondent is a family owned mushroom producing business established in the early 1980’s. It is an unlimited company, headquartered in Tyholland, Co. Monaghan.
The Complainant, who is a Latvian national, was employed as a Mushroom Harvester on 22ndMay 2006. She was paid €374.00 gross per week. She was dismissed from her employment with the Respondent with four weeks’ notice with effect from 18thFebruary 2016 on the grounds of capability in connection with her inability to provide a return to work date in the context of long-term absence.
Summary of the Respondent’s Position
Ms Rosemary Mallon, B.L., on behalf of the Respondent, submitted that the Complainant was fairly dismissed on the grounds of capability pursuant to Section 6(4)(a) of the Acts. She submitted that the Respondent investigated the Complainant’s absence in accordance with its Sickness Absence Policy (which was exhibited to the Court) and adhered to the Policy throughout. A series of meetings were held with the Complainant between May and December 2015 and she had a full opportunity to influence the Respondent’s decision. She was advised in advance of these meetings that she could be represented by a colleague or a representative of a recognised trade union. A number of the meetings had to be rescheduled due to the Complainant’s non-attendance.
A translator was present at each meeting. At all times, related correspondence was translated and read to the Complainant during the meetings and the Complainant understood the potential implications of the meetings and the process for her. The Complainant was advised that there was no suitable alternative work available. Ms Mallon submitted that the Respondent’s nominated occupational health physician had deemed the Complainant to be unfit for work and a definitive return to work date could not be identified. At the final meeting in December 2015 the Complainant agreed with the occupational health report and she was unable to provide a return to work date. The Respondent subsequently took a decision to terminate the Complainant’s employment on the grounds of capability. The decision of the Respondent to terminate the employment was fair and reasonable in the circumstances.
Evidence
It was common case between the parties that the main area of dispute between them concerned the final meeting between the Complainant and her manager on 18thDecember 2015. Hence it was agreed that evidence from the parties would, in the main, focus on that meeting.
The Court was told that the meeting was originally set up for 17thDecember but had to be rearranged as the invite to the meeting only came to the Complainant’s notice on 17thDecember. The meeting was, accordingly, rescheduled for the following day.
Evidence of Ms Catherine Hoey, Farm Manager, for the Respondent
The evidence of the Farm Manager, Ms Catherine Hoey, can be summarised as follows:
Ms Hoey told the Court that the Complainant did not specifically request that her partner attend the meeting on 18thDecember 2015 with her. She said that the Complainant’s partner attended at the premises on the day but remained in the reception area. Ms Hoey said that this was what occurred in respect of the other meetings between May and December 2015. The Complainant’s partner would come to the premises but would wait in the reception area, as generally the couple’s child was with them and he would remain with the child.
Ms Hoey said that the Complainant was aware that she could have a colleague or a trade union representative at the meeting with her but that she never availed of this.
Ms Hoey told the Court that the attendees at the meeting were herself, the Complainant and Ms Kitija Keirisa, who was present as a translator. Ms Hoey said that Ms Keirisa had fifteen years’ service in the company and worked as a Data Analyst. She is a Latvian national and regularly acted as a translator of Russian, Latvian and Lithuanian. Ms Hoey said that Ms Keirisa was a competent translator who was trusted by the company and the staff. Ms Hoey stated that the Complainant was happy to have Ms Keirisa at the meetings.
Ms Hoey said that at the beginning of the meeting the letter dated 14thDecember 2015 from Ms Hoey to the Complainant was read out and translated by Ms Keirisa. The Complainant was asked to indicate if she understood the letter and if she was satisfied to continue on that basis. The Complainant indicated that she understood and was happy to continue. Ms Hoey stated that if the Complainant indicated that she was not satisfied to continue then the meeting would have not have continued. The letter opened to the Court stated as follows:-
Dear Sigita,
Further to your appointment on 2 September 2015 with the Occupational Health Consultant I am now writing to request that you attend a formal meeting on Thursday 17 December 2015 at 2pm in the production office of Drimbawn Mushrooms with me. The purpose of this meeting is to discuss your continued absence from work and to make a decision on your employment status. You have been continually absent from work due to sickness since 20 April 2015.
The report from the Occupational Health Consultant has advised that you are presently unable to return to work and are unlikely to return in the near future.
I must warn you that a possible outcome of this formal meeting may be to terminate your employment on the grounds of sickness capability.
So that you may prepare for this meeting I enclose the report received from the Occupational Health Consultant.
You have the right to be accompanied at this meeting by a work colleague or a suitably accredited trade union representative. If the time or date of this meeting as arranged does not suit you or your representative please let me know.
Yours sincerely
Catherine Hoey
Farm Manager
Ms Hoey said that at the meeting the Complainant did not say that she was feeling better; instead she said that she would not be fit to return to work. Ms Hoey said that the Complainant did not, at the 18thDecember 2015 meeting, say she was fit to work as a cleaner. Alternative roles were not discussed at that meeting because the Complainant said she was not fit for work. An alternative role as a cleaner was discussed at earlier meetings when it was explained to the Complainant that there was only one cleaner position on site which was filled and therefore there was no vacancy.
In response to the question of why the decision was taken to terminate the Complainant’s employment, Ms Hoey stated there was no return to work date provided by the Complainant at any stage. Ms Hoey said the Complainant agreed with the Occupational Health report that she wasn’t fit to return to work. The Complainant was asked whether she believed that she would be fit in the future but she could not give any indication that she would be. Ms Hoey stated that the Complainant had an otherwise unblemished record in the company.
Ms Hoey said that she hand wrote the contemporaneous notes of the meeting (exhibited to the Court) which were read and translated for the Complainant at the meeting and were then signed by all attendees, including the Complainant. Ms Hoey said that she told the Complainant that she would make her decision over the Christmas period and communicate it to her in the new year.
Ms Hoey stated that the Complainant never expressed any doubts or issues about Ms Keirisa’s translations at the meetings nor did she indicate that she had a problem with Ms Keirisa performing the role of translator. Ms Hoey said that if the Complainant had wanted her partner to attend the meeting she would have permitted this but it was not requested.
When asked if she believed that the Complainant understood that her employment could be terminated, Ms Hoey said that she was satisfied that she did as the letter had been translated for her and she did not indicate that she had any difficulty understanding.
Ms Hoey stated that the decision to terminate the employment was hers. She said she consulted with the HR department about the process but the termination decision was hers alone.
Ms Hoey said she sent a letter of termination dated 14thJanuary 2016 to the Complainant by ordinary post. The letter set out that the termination decision could be appealed by the Complainant to another manager in the company by 22ndJanuary 2016. The letter was sent to the address which the company had on file for the Complainant, the same address as all other correspondence during the process had been sent to. A P45 was not sent at that stage as the notice period was still extant.
Ms Hoey said that some weeks later she was informed by a colleague in the office/admin department that the Complainant had contacted the office on the basis that her partner had hand-delivered a medical cert and was advised that the Complainant’s employment had been terminated. The Complainant had said that she was unaware of the termination as she said that she had not received the letter dated 14thJanuary 2016.
As a result Ms Hoey said that she decided that the letter dated 14thJanuary 2016 should be re-sent to the Complainant. She said that the Complainant was advised by the office/admin colleague that the letter was being re-sent and that she could still avail of the appeal. The letter as written originally dated 14thJanuary 2016 was re-sent by registered post. The dates, including the dates related to the timeframe for appeal, were not updated in the letter.
No appeal was received and no other contact from the Complainant was received until June 2016 when a data access request was received on behalf of the Complainant from the Citizens Information Service.
Ms Hoey stated that she was never made aware that the Complainant was certified fit and available for work from 1stApril 2016. She said that if she had been aware of that she would have discussed that situation with the Complainant as there were regularly Mushroom Harvester positions available with the Respondent.
Evidence of Ms Kitija Keirisa
The evidence of Ms Kitija Keirisa can be summarised as follows:
Ms Keirisa told the Court that she started performing translations for the Respondent approximately 13-14 years ago. She has been employed with the Respondent for fifteen years. She started as a Mushroom Harvester, was promoted to Supervisor and now works as a data analyst for the Respondent.
Ms Keirisa stated that she attended all of the meetings with the Complainant and Ms Hoey. She said that the Complainant never expressed any issue or unhappiness with her translations. She is fluent in English, Russian, Latvian, Lithuanian and she has basic Spanish and German. Her mother tongue is Latvian, the same as the Complainant.
Ms Keirisa told the Court that at the meeting on 18thDecember 2015 she translated the letter from the Respondent to the Complainant dated 14thDecember 2015. She translated all of the exchanges at the meeting and she translated the hand-written notes taken by Ms Hoey at the meeting. She said that the Complainant never said at any stage that she didn’t understand.
In cross-examination, Ms Keirisa said she was not aware as to whether the Complainant’s partner was at the Respondent premises on 18thDecember 2015. She said that she had seen him at the location when previous meetings were on and she said that she remembered that the couple’s child was present with the partner when some of the meetings took place.
Ms Keirisa said that the Complainant did not ask to have her partner attend the meeting held on 18thDecember 2015. She said that Ms Hoey asked the Complainant if she wanted a colleague or a union representative present but the Complainant did not. She said that she had over the years attended many meetings for staff; disciplinary meetings etc., to act as translator and that staff were usually happy with her presence and rarely have another colleague or union representative in attendance.
Ms Keirisa said that she did not recall a discussion taking place about an alternative role for the Complainant at the 18thDecember 2015 meeting.
Ms Keirisa said that she believed that the Complainant understood what was going on at the meeting on 18thDecember 2015. She said that Ms Hoey’s hand-written notes of the meeting were an accurate reflection of what transpired at that meeting. She said if she makes a comment about the notes she always requests Ms Hoey to note it on the notes but that this did not arise for the meeting on 18thDecember 2015.
Summary of the Complainant’s Position
Ms Elizaveta Donnery, Solicitor, Donnery & Company Solicitors, on behalf of the Complainant, submitted that the Complainant sustained injuries at work in 2010. She had an extended period of absence in 2010 and 2011 as a result. In April 2015 she went out sick in connection with neck and back problems. Her illness was certified by her GP. She attended a number of meetings with the Respondent during the course of her absence to discuss her health issues. During that process she asked about the availability of possible alternative duties, such as cleaning duties. In September 2015 she attended a company appointed occupational health practitioner who confirmed that she was still unfit for work. In December 2015 she was requested to attend a meeting with the Respondent on one day’s notice. She was not permitted to have her partner accompany her at the meeting. At the meeting were her manager and another colleague who acted as a Russian/Latvian-English translator. Unbeknownst to her at the time, the meeting was to be her final meeting with the Respondent prior to her employment being terminated. She told the Respondent representative that she was feeling better and hoped to resume her duties shortly.
She thought that the meeting was the same as previous meetings that she had attended and following the meeting she continued to submit medical certificates to the Respondent. At end of February/early March 2016 her partner delivered a medical certificate to the Respondent and was advised that there was no need, as the Complainant’s employment had been terminated some time previously.
The Complainant was surprised and upset at this development and when she contacted the Respondent to make enquiries she was advised that her employment had been terminated with effect from 18thFebruary 2016 and that this had been notified to her by letter dated 14thJanuary 2016. It was submitted that the Complainant did not receive the letter of termination. The letter was subsequently re-sent to her by the Respondent. As she only received the January letter in March she was unable to avail of the appeal offered in the termination letter, which was to be submitted before 22ndJanuary 2016.
It was submitted that the Complainant was denied fair procedures prior to her dismissal and was unfairly dismissed: she did not understand that the December meeting could lead to her dismissal and did not have adequate notice of the meeting; her situation was not fully investigated by the Respondent; she was not permitted to have her partner attend the December meeting with her; she was not properly notified of her dismissal and the reasons for it and was denied an opportunity to appeal the decision.
It was submitted that the Complainant was certified fit for work by her GP from 1stApril 2016.
Evidence of the Complainant
The evidence of the Complainant, Ms Sigita Lindermane, can be summarised as follows:-
The Complainant stated that she understood that the purpose of the meeting held on the 18thDecember 2015 was to discuss her absence and was essentially the same as meetings she had attended with the Respondent over the previous months. The Farm Manager, Ms Catherine Hoey, attended all meetings as the Respondent’s manager.
She said that she came to the meeting with her partner. He had come to previous meetings but when she asked that he attend the meeting on 18thDecember 2015 she was told no, under no circumstances. She said that Ms Hoey told her that she could have either one of two identified colleagues attend with her. One of those colleagues, Ms Kitija Keirisa, attended the meeting at the behest of the Respondent and acted as a translator.
The Complainant said that the format of the meetings was the same as previous meetings and the same questions were asked of her by Ms Hoey. She said that she did not realise that this was to be the last meeting and that a decision on her continued employment with the Respondent was going to be made as a result of the meeting. She said that if she had realised that it was the final meeting she would have behaved differently and would have tried to return to work.
The Complainant denied that an alternative role was discussed at the meeting, as she had asked at previous meetings about a job as a cleaner and was told that there were no vacancies for cleaner positions.
She told the Court that in March 2016 her partner brought a medical certificate to the company’s office. There was nobody in the office so her partner gave the cert to one of the supervisors. The supervisor later telephoned the Complainant and queried why she had submitted the cert when her employment had already been terminated. The Complainant said that she told the supervisor that she did not receive any termination notification. She said that a colleague from the office/admin department came on the telephone and apologised and promised to re-send the dismissal letter.
The Complainant said that she then received her P45 and a week later she received the dismissal letter. She said that nobody said anything to her about an appeal but she later saw that it had been in the letter.
The Complainant told the Court that she was certified as fit to return to work by her GP from 1stApril 2016.
In cross-examination, the Complainant agreed that she had had previous meetings with Ms Hoey, with Ms Keirisa present as a translator. She said that she was happy with Ms Keirisa’s translations at those meetings. She agreed that at each meeting she attended, including the 18thDecember 2015 meeting, the letter inviting her to the meeting was read out and translated at the commencement of each meeting.
With regard to the letter dated 14thDecember 2015 inviting her to attend the 18thDecember meeting, she said that the letter was read and translated to her and she acknowledged that the letter pointed out that termination of her employment was a possible outcome of the meeting. However, she stated that she did not understand its meaning. She said that she thought it would be like her previous period of absence in 2010/2011 when she got a report from the company doctor who said that she could return to work. She said that when she was out sick before she was not let go but now she was let go.
It was put to her that the September 2015 Occupational Health Physician’s report had stated that she was not fit. In response she said that the report did not state that she would be unfit forever, she said that the report stated that she could not return for a period.
The Complainant agreed that at the meeting on 18thDecember 2015 she could not identify a return to work date. She said that she probably didn’t understand that her employment might end as a result of that. She agreed that the notes of the meeting were read out and translated for her at the meeting, she signed the notes but she said that she was just stressed and didn’t understand.
The Complainant said that she didn’t get the termination letter until it was sent to her by registered post in March 2016. She said that she didn’t request an appeal because she had already got a P45 at that stage, she had never received a letter like that before, she didn’t know what to do and was stressed and didn’t understand. She said that she was a member of SIPTU, the union on site, but had not contacted the union as she could not get her head around it.
She said that she did not contact the Respondent when she was certified fit in April 2016 because she had already been let go. She felt that she had not been treated right by the Respondent, she was stressed and upset and the relationship with the Respondent was gone. She later went to the Citizens Information Service for help and advice.
The Complainant confirmed to the Court that she did not receive Jobseekers Benefit from the then Department of Social Protection until November 2016. She said that she was told by the Department that they had misplaced her application for the Benefit. The Complainant was unable to produce for the Court a copy of the medical certification which certified her fit from 1stApril 2016.
The Law
Section 6(1) of the Unfair Dismissals Act, 1977-2015 states:-
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.
Subsection (4) of Section 6 states:
(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:
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Discussion & Decision of the Court
In reaching its decision the Court has taken account of all written and verbal submissions of the parties and has had full regard to the evidence adduced in the course of the appeal.
In light of the forgoing, the Court is satisfied that the Respondent adhered to its Sickness Absence Policy in obtaining and Occupational Health report and giving the Complainant an opportunity to comment on it.
The Court is further satisfied that the Complainant understood what was happening at the meeting on 18thDecember 2015 and that she understood the potential outcome as set out to her by letter dated 14thDecember 2015. She signed the hand-written meeting notes to indicate her agreement with them. The Complainant was aware of the representation options available to her for the meeting and she chose not to exercise them.
Ultimately, the Complainant was unable to provide the Respondent with a return to work date and there was no disagreement regarding the Occupational Health report which confirmed that she was unfit for work.
It is not for the Court to establish whether the Complainant was incapable to carry out her duties but rather it is sufficient that the Respondent honestly believed on reasonable grounds that she was.
It is an implied term in any contract of employment that an employee will remain fully fit to perform the duties for which he or she is employed and the loss of that capability can give rise to dismissal. InBolger v Showerings Limited [1990] ELR 184Lardner J said that in order to demonstrate that a dismissal on grounds of capability is fair the employer must show that ill-health was the substantial reason for the dismissal, that the employee got fair notice that dismissal for incapacity was being considered and that
the employee was afforded an opportunity to be heard.
The Respondent’s reason for dismissing the Complainant was its belief that she was incapable of working due to illness, through no fault of her own. This was based on the information before it, including the medical reports and her input to the meeting held on18thDecember 2015. Based on these facts the Court is of the view that there were bona fide reasons for its decision to dismiss. The Court accepts that there were substantial grounds justifying dismissal and in all the circumstances, it was a reasonable decision. Therefore the Respondent has discharged the burden placed on it by section 6(4) of the Act, and the Court finds that the dismissal was not unfair.
In these circumstances, the Court finds that the Complainant’s dismissal was on grounds of capability. Under section 6(4)(a) that is a substantial ground, therefore the Court finds that the dismissal was not unfair.
Determination
The Complainant was not unfairly dismissed by the Respondent. The appeal, therefore, fails and the Adjudication Officer’s decision is upheld accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
1 November 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.