ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019402
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaning Operator | A Services Company |
Representatives | Self Represented | Not present |
Complaint(s):
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-00025336-001 | 26/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00025336-002 | 26/01/2019 |
Date of Adjudication Hearing: 10/10/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant submitted two claims to the WRC. One concerned a claim for Unfair Dismissal and the other an Industrial Relations claim for expenses concerning attendance at a medical. |
Summary of Complainant’s Case:
The Complainant was employed from November 1st 2010 to December 21st 2018 as a Cleaning Operative. In August 2017 he got sick after slipping on his foot a year before. His Doctor suggested he had to rest his leg as he had problems walking. He was certified sick for the period off work. He was notified of a Doctor’s appointment organised by the Company in December 2018. He was in Poland at the time and he had notified the Company about this. He flew from Poland for the medical examination at his own expense involving flights, accommodation, travel costs etc. He submitted details of these costs to the Hearing amounting to 618.80 Euros. Some of these expense had receipts and some did not. When he arrived for the medical he was informed at the Medical practice that the appointment had been cancelled two weeks before. They had sent notice of a first medical to his Irish address and the Respondent had cancelled the second medical appointment. He received no correspondence of the cancellation. His sister had signed for the letter at his Irish address. The Respondent had his email and phone number and still did not contact him via these to advise him the appointment was cancelled. He received no notice of a risk of being dismissed. He got an award in 2017 for performance. He was never invited to any meeting to discuss the issue. He has not worked since December 2018. He has been on illness benefit since. He has lost trust in the Respondent and is not seeking reinstatement but compensation for unfair dismissal. With regard to his dismissal he stated he had been sick since August 2017 and was in Poland for therapy. He submitted medical certificates all the time to the Respondent while out sick. He was asked several times by the Respondent when he was returning. He could not provide an accurate date for when he would return to work. He was in a lot of pain. He submitted a medical certificate in late 2018 to say the therapy would last maybe one more year. He was dismissed without being invited to discuss his situation at a meeting or when he thinks he could return to work. He feels he was unfairly dismissed. |
Summary of Respondent’s Case:
A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on January 26th 2019 alleging that his former employer contravened the provisions of the Unfair Dismissals Act 1977 in relation to him. He also submitted a claim under the Industrial Relations Act 1969. The said complaints were referred to me for investigation. A Hearing for that purpose was held on October 10th 2019. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaints would be held and were not present at the Hearing. |
Decision and Recommendation:
.
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. This decision relates to WRC Claim Number CA-00025336-001. The Complainant had been employed from 2010 to 2018 with an exemplary record, based on his uncontested evidence. He got a bad injury in August 2017 and was out of work for a long period. He was asked in October 2018 for an update on his medical condition and expected return to work date. On receipt of this information the Respondent wrote to the Complainant on November 29th 2018 dismissing him because he was “unavailable for work for the foreseeable future” and “the reports indicate that there would be a further absence from the workplace of an additional 10 to 14 months” and the Company “is no longer in a position to leave your post open”. The dismissal letter concluded that if the Complainant was fit to return to work in the future to make contact with the Respondent and they would reconsider the Complainant for available positions. The Complainant, it appears based on his uncontested evidence, was therefore dismissed for frustration of contract for being out sick for over a year and unlikely to return to work due to medical problems for another year or more after that. While frustration of contract can be a legitimate ground for terminating a contract of employment it has to have reasonable grounds to succeed to justify a dismissal and the process of engaging with the dismissed party is crucial to fair procedure. In the absence of the benefit of the Respondents position, due to their non attendance at the Hearing, to justify the substantial grounds for the dismissal I find that the Complainants dismissal was fair and award him 10,000 Euros Compensation for his Unfair Dismissal. The quantum of this award reflects the possibility that frustration of contract may be a mitigating factor in this case. Section 13 of the Industrial Relations Acts, 1969 requires that I make a Recommendation in relation to the dispute. This Recommendation relates to WRC Claim Number CA-00025336-002. The core issue in this claim is that the Complainant attended for a medical organised by the Respondnet and then cancelled by the Respondent, it appears from the uncontested evidence of the Complainant, two weeks in advance of the Medical without making any serious effort to directly contact the Complainant by email or phone and who they knew was in Poland, to inform him the medical was cancelled. This involved a cost of around 600 Euros to the Complainant to come to Ireland for the aborted medical. In the circumstances, and based on the uncontested evidence of the Complainant, I recommend the Respondent reimburse the Complainant for any receipted expenses he submits for the cancelled medical visit up to a maximum of 600 Euros. |
Dated: 11th December 2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal |