ADJUDICATION OFFICER DECISION
Senior Treasury Analyst
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977following 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 as a Senior Treasury Analyst from 13th June 2016 to 1st February 2019. She was paid €5,416.66 per month. She has claimed that she was unfairly dismissed and has sought compensation.
Summary of Respondent’s Case:
On 21st February 2018 the Complainant commenced sick leave. Prior to this she had received negative performance rating in her annual review. On 19th February 2018 she had raised a grievance relating to her perceived increased workload. The grievance was investigated by a member of senior management. The Complainant and her direct manager were interviewed. It was found that she occasionally worked extra hours, but this was at her own volition. The grievance was not upheld. She appealed the outcome and it was heard on 14th August 2018. Following careful consideration, the appeal was dismissed. The Complainant attended two separate medical assessments, on 20th March and 5th June 2018, to ascertain her fitness to return to work. She was deemed fit to return to work and or was noted that her GOP had not put her on medication or recommended counselling. The GP was continuing to certify her unfit for work. The Respondent sought on several occasions to meet with the Complainant, but she declined. She continued to be certified by her GP as unfit to work. She then applied for PHI assistance according to her contract. This was rejected on 21st September 2018.This was based on the opinion of a Consultant Psychiatrist, who found that she was fit to return to work. The Respondent kept in regular contact with the Complainant during her absence from work to offer whatever assistance they could. All requests to meet with her were refused on the basis of her ill health. The Respondent met with her on 9th October 2018 to discuss the conflict between the Company Doctor, the Consultant Psychiatrist and her GP. At this meeting she advised that she would not be returning to work for the foreseeable future. On 25th October 2018 the Respondent made a call to her where she advised that she could not work in her team again and did not see herself transitioning back into the workplace. She indicated that she would be interested in a financial package. They undertook to discuss this with the company. On 14th November 2018 the Complainant requested a compromise agreement from the Respondent and again on 6th December, with a view to terminating her employment with a financial settlement. In the absence of any evidence of a return to work they took a pragmatic decision to offer her an agreement on 7th December. This was declined.
The Complainant was dismissed because she was unfit for work for the foreseeable future. A contractor had to be appointed to cover the duties of the Complainant in her absence. It should be noted that the contractor had no issue with the workload. In the knowledge that she was not returning to work for the foreseeable future the Respondent sought meetings on several occasions. Following four postponements a meeting took place on 29th January 2019 as she had sought medical evidence from her GP. She had legal representation at this meeting. She did not directly attend the meeting but was in the hotel. It was confirmed that she continued to be unfit due to depression. There was no visibility of when she might be able to return to work. She did not have a medical certificate confirming any of this. Her legal representative stated that dismissal would be unfair in circumstances where the Respondent caused the absence. No medical report was provided supporting her position that she was unfit for the foreseeable future. On 1st February 2019 the Respondent confirmed their decision to terminate the employment. It should be noted that she did not request any extra time to facilitate a return to work. She appealed the decision despite the fact that she had filed a complaint with the WRC. An appeal hearing took place on 18th June 2019. No additional medical evidence was presented to the appeal hearing despite its request by the Respondent. Her representative confirmed that the Psychiatrist that examined her had deemed her unfit for work and could not confirm a likely return to work date. Her representative focussed on causation of her absence, not a return to work date. The appeal was not upheld and the dismissal was affirmed on grounds of incapacity.
It is the Respondent’s position that after almost a full year’s absence with no prospect of a return to work the Complainant’s position was terminated. There was never a request to return for light duties. She was paid three months’ notice despite not being obliged to do so.
Dismissal on capacity grounds is deemed not to be unfair. They cited the Labour Court O’Brien V Dunnes Stores Ltd UDD1714 and Bolger v Showerings (Ireland) Ltd [1990 ELR 184 in support. In Redmond on Dismissal it was stated that “the decision to dismiss is not, however, a medical decision. It is an employment decision made by an employer in the light of all the circumstances.” The dismissal was entirely justified.The Complainant has confirmed that she remains unfit to work to this day, so no loss suffered.
Summary of Complainant’s Case:
The Complainant stated that an unmanageably heavy workload and a refusal to take on board her grievance arising from the workload forced her to go on sick leave. Her employment was terminated on 1st February 2019 because she was unavailable to work. The Respondent began to mistreat the Complainant shortly after she commenced employment. As the company expanded her duties increased over 2017 without the necessary support staff. She raised concerns with her manager at regular intervals. She had difficulty in taking her statutory holidays without interruption. She complained that the excessive workload was having a negative impact on her physical and mental health. In parallel she was never complimented on her work. She raised an informal complaint in early 2017 but nothing was done. She was then forced to accept a negative performance review. It was around this time that her physical and psychiatric symptoms began to show. In October 2017 she was criticised for taking annual leave that had been approved earlier. On 19th February 2018 she raised a formal complaint being subjected to unreasonable increase in her workload. The investigation was deeply flawed. She was not given the right to respond to findings. Her complaint was not upheld. Despite her failing health she appealed the outcome. The appeal failed. This process was also flawed because she was both physically and psychologically unfit. She was becoming extremely unwell. She went on certified sick leave in February 2018 and was diagnosed with depression and also physical symptoms. The Respondent having been responsible for her absence did not respond in a fair or reasonable way. She received sick pay for six months until August 2018. Her request for benefit under the income protection scheme was declined. On 6th November she was invited to a meeting. They were relying upon a company medical report which declined her income protection that she was fit to work yet they sought her to provide a medical opinion about her prognosis with the inference that her employment was going to be terminated. She met the company on 29th January 2019. She candidly advised them that she was unfit for work, she did informed them that she was attending her doctor the next day. She did state that she wished to return to work. The Respondent decided not to wait for the doctor’s report the next day and would not afford her more time. She was dismissed from her employment on 1st February 2019. This was precipitative and was taken without awaiting the Complainant’s recovery and awaiting receipt of medical report arising from attendance on 30th January or examining a way of getting her to work remotely. She appealed the dismissal, but it was not upheld.
It is her position that the Respondent was in breach of the contract of employment in that it failed to protect her health and safety and it failed to guarantee that she could fulfil her work duties without the risk of suffering injury. She stated that the Respondent behaved unreasonably. She is seeking compensation. While she is unfit to work and the Act provides for four weeks remuneration where no losses have been incurred she has sustained losses as a result of acts and omissions of the Respondent. She has incurred a total loss to date of €53,563.33 for salary, pension and health insurance. She cited the case L Allen V Independent Newspapers (Ireland) Ltd UD641/2000 in support.
Findings and Conclusions:
I note that the Complainant went out sick on 21st February 20108 and the employment terminated on 1st February 2019.
I note that at no stage did the Complainant give any indication of a possible return to work.
I note that the Complainant is still unfit for work.
I find that the Complainant was unfit to fulfil her contract of employment.
I find that the contract of employment had become frustrated.
I find that the Respondent was entitled to terminate the contract of employment as the Complainant was unable to fulfil that contract. She was unable to fulfil a key part of any contract i.e. capacity.
I find that this is supported by Sec 6(4) of the Unfair Dismissals Act. “wholly or mainly from an employee’s capability to preform the work of the kind which he was employed by the employer to do”.
For those reasons I find that the dismissal was not unfair on substantive grounds.
I note that the Respondent sought meeting on regular intervals, but these were declined on at least four occasions.
I note that the Respondent had her medically assessed and had the benefit of the Consultant Psychiatrist for the Permanent Health Insurance scheme to affirm that she was fit for work.
Yet I note that at all times her GP certified her unfit for work.
I note that at no time including the final meeting on 29th January 2019 did she indicate any possible return date in the foreseeable future.
I note that the Respondent had sought meetings on a number of occasions and requested that she brings medical certification from her GP.
I note that she eventually attended at a meeting location on 29th January 2019 represented by her legal adviser but failed to bring a medical certificate from her GP, as requested.
I note that the Respondent had sought this medical report for over three months.
I note that she advised that she was having an examination by a Consultant Psychiatrist on 30th January.
I note that the Complainant’s representative did not request that the Respondent await the outcome of the Consultant Psychiatrist examination.
I note that it was the Respondent’s view that that this examination was in respect of a personal injuries claim.
I note that the Complainant did not produce the report of the Consultant Psychiatrist at the appeal hearing either.
Despite this the Complainant is now placing huge emphasis on the opinion of her Consultant Psychiatrist but failed to use it at the appeal hearing.
I note that the Complainant was aware that the Respondent was considering the continuing employment and confirmed this in writing. She received a letter from the Respondent dated 6th November 2018 headed Matter : Meeting about your future employment.
I find that the Complainant had the benefit of legal advice and it is not for the Respondent to make her case for her.
I find that the Complainant’s represenative chose not to rely upon the Consultant’s Psychiatrist’s report at the time of the dismissal and appeal.
I find that the Respondent applied fair procedure and so I find that the dismissal was procedurally fair.
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.
I have decided that the Complainant has not been able to fulfil her contract of employment by not attending work on a regular basis.
I have decided that that is sufficient grounds to terminate the contract of employment, because it had become frustrated by the absence with no hope of a return to work for the foreseeable future.
I have decided that the dismissal was not unfair.
I have decided that this complaint is not well founded and so it fails.
Dated: November 28th 2019
Workplace Relations Commission Adjudication Officer:
Dismissal on grounds of failing to fulfil the contract of employment