FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : GAS NETWORKS IRELAND (REPRESENTED BY ARTHUX COX, SOLICITORS) - AND - KATHERINE J O' DRISCOLL DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no: ADJ-00008399.
BACKGROUND:
2. The Appellant appealed the Decision of the Adjudication Officerto the Labour Court on 15thJune 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court case conference was held on 15thNovember 2018. A hearing took place on 10thJanuary 2019. The following is the Determination of the Court:
DETERMINATION:
Background
This matter comes before the Court as an appeal by Katherine O’Driscoll (the Appellant) against the decision of an Adjudication Officer in her complaint against her former employer, Gas Networks Ireland (the Respondent) made under the Unfair Dismissals Act, 1977 (the Act)
The fact of dismissal is in dispute
Approach of the Court
The Court decided to determine, as a preliminary matter, the question of whether a dismissal within the meaning of the Act had in fact taken place. The Court took this approach on the basis that the Court’s decision on this matter had the potential to dispose of the matter in its entirety.
Summary position of the Appellant on the preliminary matter
The Appellant submitted that she had been dismissed by the Respondent on 13thMay 2017 when the Respondent’s administrative payroll staff implemented an arrangement whereby she no longer was in receipt of pay from the Respondent. She submitted that her contract of employment provided for her to be paid and that a breach of that element of her contract was a dismissal within the meaning of the Act.
She submitted that the matter before the Court was not a complaint of constructive dismissal but rather that the Respondent had, on 13thMay 2017, dismissed her.
Summary position of the Respondent on the preliminary matter
The Respondent submitted that the Appellant had been absent through illness from 18thOctober 2016 until being certified fit to resume work by her own Doctor and, on 12thApril 2017, the company Doctor. The Appellant had been in receipt of sick pay in accordance with the terms of the Respondent’s sick pay scheme during her absence. In accordance with the terms of that scheme the Appellant was restored to full pay with effect from the date on which her fitness to work was certified. In addition, and in accordance with the terms of the scheme, the Appellant was, by letter of 13thApril 2017, notified that she would be required to attend a Return to Work Conversation prior to her actual return to work. She was also notified in that letter that, following the Return to Work Conversation, she would not be paid if she did not return to work as she had been certified fit to work.
A series of communications were issued to the Appellant thereafter seeking to arrange a Return to Work Conversation but no response was received from the Appellant. Ultimately, the Appellant was written to by the Respondent on 12thMay 2017 stating that, in view of the fact that she had not engaged with the Respondent, and as she was certified fit to return to work and had not done so, the Respondent would advise its payroll department to stop paying her. That letter also invited the Appellant to contact the Respondent to arrange a Return to Work Conversation. The Respondent submitted that the letter of 12thMay 2017 was not a letter of dismissal and neither was the subsequent implementation by payroll administrative staff of the decision to cease payment to the Appellant an act of dismissal.
Discussion and Conclusions
The fact of dismissal is in dispute between the parties.
The Appellant has made clear that the within complaint relates to an alleged unfair dismissal on 12thor 13 May 2017 and not to any termination of the Appellant’s employment on any other date. The uncertainty as to the date of alleged dismissal arises from the fact that a letter from the Respondent to the Appellant dated 12thMay 2017 is contended by the Appellant to have caused the administrative payroll staff of the Respondent to cease payment of salary to the Appellant on 13thMay 2017. The Appellant contends that the actions of the administrative payroll staff should in fact be viewed by the Court as constituting the act of dismissal.
It is common case that the Appellant was declared medically fit to resume her employment at the start of April 2017 following a period of sick leave. It is also common case that on 13thApril 2017 the Respondent wrote to the Appellant advising her that in light of her fitness for work she was being restored to full pay following her absence through illness and pending a Return to Work Conversation. That letter advised the Appellant that she would be reverted to full pay until a Return to Work Conversation took place. The letter also advised the Appellant that, post the Return to Work Conversation, she would not be paid if she did ‘not return to work as she was certified as being fit to return’ by both her own doctor and the company’s doctor.
It is common case that Respondent’s actions in this respect, including the arrangement of a Return to Work Conversation meeting, were in accordance with policies in place as regards a return to work following an extended period of sick leave.
Subsequent to that letter, which was not responded to by the Appellant, the Appellant was restored to full pay and a series of e-mails (21stApril 2017) and letters (24thApril 2017 and 28thApril 2017) were issued by the Respondent in an attempt to make arrangements for a Return to Work Conversation meeting. None of those communications were responded to by the Appellant.
The Appellant has submitted that she was in communication with the Chairman and Chief Executive of the Respondent’s parent company at the material time but has also clarified that no such communication was concerned with the making of arrangements for a Return to Work Conversation.
The Respondent wrote to the Appellant on 12thMay 2017 expressing disappointment that the Appellant had ‘refused to engage with the Company’. The correspondent, Mr O’C, who was the Respondent’s Head of Human Resources and Public Affairs, advised the Appellant that he had ‘notified payroll to stop paying’ her as she was certified fit to return to work but had not done so.
The letter went on to advise the Appellant that a prerequisite to her return to work remained the Return to Work Conversation. Finally, the letter communicated two telephone numbers for the Appellant to contact to arrange a suitable time to meet the Respondent for her Return to Work Conversation.
It is a condition precedent for a valid complaint under the Act that a dismissal has actually taken place. In the within matter there is no complaint of constructive dismissal. The Appellant has claimed that the letter of 12thMay 2017 from the Respondent and in particular the subsequent action of the administrative payroll staff of the Respondent constitute a dismissal of the Appellant by the Respondent within the meaning of the Act.
The Act at Section 1 in relevant part defines dismissal in the following terms:
- “ dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;’
Having reached that conclusion, the Court must find that the Appellant was not dismissed by the Respondent on the 12thor 13thMay 2017 and consequently must find that the within appeal fails.
Determination
The Court determines that the Appellant was not dismissed by the Respondent on the 12thor 13thMay 2017. The decision of the Adjudication Officer is affirmed. The appeal fails.
The Court so determines
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
17th January, 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.