HEALTH SERVICES EXECUTIVE WEST
1.Appeal Of Adjudication Officer Decision No. ADJ-00026122 CA-00033282-001
2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 20 July 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 2 March 2022. The following is the Determination of the Court:
Ms. Rainsford, ‘the Complainant’, worked for the Health Service Executive, ‘the Respondent’ on a number of fixed term contracts from November 2015 to October 2019.
The Complainant was dismissed by the Respondent at the end of a contract period.
The Complainant lodged a complaint under the Unfair Dismissals Act, ‘the Act’, with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, decided that the Complainant had been dismissed ‘for cause’ and not because of the expiry of her contract term and that she had been dismissed unfairly. It was decided that €5000 should be paid in compensation.
The Complainant appealed the quantum to this Court.
The Respondent advised the Court that it accepted the decision that the dismissal was unfair. However, having regard to the observations of the AO regarding the problems encountered with the Complainant’s attendance record and the contribution to the dismissal by the Complainant, it was argued that the compensation awarded was appropriate.
Note. As both parties accept that the dismissal was unfair within the meaning of the Act, the sole issue for the Court to determine is the remedy.
Summary of Complainant arguments regarding the remedy
The Complainant was dismissed because of her absence profile. Therefore, she should have been afforded the full application of the Respondent’s procedures. In her time in the employment, the Complainant had only ever received a verbal warning for her attendance, Stage 1 of a 4 stage disciplinary process. The Respondent skipped all subsequent stages in dismissing her.
Furthermore, she was denied the right to appeal. If this right had been afforded to her, she would have remained on full pay pending the outcome of the appeal. This process is supposed to be completed in 6 weeks but evidence of cases is provided to the Court of three such appeals that took 8 to 9 months. If the Complainant had been provided with her entitlements, she would have received full pay for a lengthy period.
The AO Decision is to award only 8.5 weeks of the Complainant’s weekly pay of €577 per week.
Evidence is provided to the Court of attempts by the Complainant to mitigate her losses between the date of her dismissal in October 2019 up to December 2020 when she became unable to work due to illness.
In the period May to September 2019, the Complainant was facilitated with a 3 day week, in which time she had no absences. This was after a major illness episode.
The Respondent states that there were occasions when the Complainant did not engage with the Respondent’s occupational health advisors. In correspondence regarding one such occasion, the Respondent was made aware that the Complainant was in hospital when a meeting was to take place.
Summary of Respondent arguments regarding the remedy
The Respondent accepts the AO Decision.
The Complainant contributed to her dismissal and this has to be taken into account in fixing any quantum of compensation. There was a pattern of absences totalling 50 weeks in 5 years.
The Complainant missed 6 appointments with Occupational Health.
The Complainant was not afforded an appeal because the Respondent believed that it was within its rights to terminate the employment at the end of a contract period. The Respondent now accepts that this was incorrect.
Ordinarily, appeals would not take 8 to 9 months to conclude. The delays in the cases referred to in the Complainant’s submission arose due to Covid. The Complainant’s dismissal was pre Covid.
The Respondent was not made aware of some details regarding the Complainant’s illness that have been now provided to the Court.
The Respondent made every attempt to work with the Complainant to assist her attendance.
When the Complainant was dismissed, the Respondent offered to refund superannuation contributions to the amount of €3800. Upon discovering that this was not possible, the Respondent made an offer of this amount in compensation. This was rejected by the Complainant.
The applicable law
Unfair Dismissals Act 1977-2015
Redress for unfair dismissal.
7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances:
( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
( a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
( b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
( c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
( d ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
( e ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
( f ) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
The Court determines that the appropriate redress in the instant case is that of compensation, due to the circumstances as set out above.
Having regard to the provisions of the Act, see above, and applying these to the instant case, the Court notes that in the 14 months subsequent to her dismissal and prior to her being deemed unable to work due to illness, the Complainant made attempts to mitigate her loss by seeking employment.
The Court notes also that if the Respondent had applied its disciplinary process correctly, the Complainant would have been afforded an appeal and would have continued to be paid pending that appeal.
While the exact length of time concerned cannot be quantified definitively, the Respondent acknowledged to the Court that this period would, most likely, have exceeded the 6 weeks provided for in its disciplinary policy.
It seems to the Court, therefore, that it would be unfair to the Complainant if the Respondent was to gain by virtue of the very factor that made the dismissal unfair and that this factor must be taken into account when determining an appropriate compensation amount.
On the other hand, any employer is entitled to operate a system for managing absenteeism and is entitled to demand full co-operation from its employees with any reasonable requirement that facilitates such management.
The scale of the Complainant’s absences and their frequency throughout her employment gave the employer every right to act on their attendance management policy. The non co-operation by the Complainant in not attending meetings with the Respondent’s occupational health advisors is, itself, a legitimate basis for the consideration of disciplinary action by the Respondent.
The Court is in no doubt that the scale of absences and this non co-operation by the Complainant were significant contributors to the decision to dismiss.
Weighing both sets of considerations, as set out, the Court accepts that there is a legitimate argument that the amount awarded by the AO be increased but the Court also believes that the very significant contribution by the Complainant to her dismissal has to be reflected in the compensation to be awarded.
In all the circumstances, the Court determines that compensation of €10,000 should be paid by the Respondent to the Complainant for her unfair dismissal.
The Decision of the Adjudication Officer is varied.