Complainant

Respondent

Parties

Simone  Woods

Uber Ireland Center of Excellence Ltd

Representatives

  Self Represented

 Mark Curran BL instructed by Mason Hayes and Curran Solrs

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-00061235-001

22/01/2024

The Complainant was absent from work on either maternity/paternity leave or certified sick leave from approximately October 2022 to July 2023. For a period in June and July the Complainant had been taken off the Respondent IT system due to inactivity without her knowledge. The Complainant attempted to correct this situation. When the Respondent was receiving no communication from the Complainant, the Respondent employees contacted the Complainant by phone and text during this time and they received no reply or call back. The Complainant maintained she had her phone on silent for a period of this time while away and did not see the company contacts and she had been cut off from the Respondents IT system so did not see the emails. The Complainant was dismissed on July 24th 2023 due to abandonment of her position. On realizing there was a mix up in the Respondent receiving sick certificates the Respondent contacted the Complainant and her dismissal was rescinded by email on August 3rd 2023. The Complainant was requested to submit a medical certificate for her ongoing illness and granted access back to the Respondent IT systems. The Complainant refused to accept the offer to rescind her dismissal and she emailed the Respondent on August 9th 2023 refusing the offer. On August 14th 2023 the Respondent replied accepting the Complainants rejection of their offer to continue in employment.  In November 2023 the Complainant asked could she have her job back and the proposal was declined by the Respondent due a reduction in work in the Department the Complainant had worked in. The Complainant submitted a complaint for unfair dismissal on January 22nd 2024. The Respondent name was changed by agreement from Uber to Uber Ireland Center of Excellence Ltd.

The Complainant was employed with the Respondent as a CSR from October 2018 until July 2023, when she complained she was unfairly dismissed. At the time, the Complainant was signed off on sick leave by a Doctor from the Perinatal Mental Health team at Limerick's Maternity hospital.

The Complainant gave in a sick cert every few weeks to the Respondent and in July was medically confirmed she was not in a fit state to return to work. Around the same time the Complainant was trying to sign into her work account but could not get access due to inactivity, so she emailed the help desk in Manilla but still did not get anywhere. Due to this she emailed the sick cert to HR via her personal email address.  She sent a follow up email on July 20th again asking for access to her account as she had a new sick cert to provide, to which she got a response from Uber support that she had been terminated so there was no need for her to get access. Copies of correspondence was supplied.

The Complainant submitted the Sick leave policy, it states ‘Uber may proceed with a Disciplinary process, if you fail to return to work after a leave period’. The Complainant alleged Uber did not follow this procedure, they just sent the Complainant 2 letters- one which was mistakenly dated from 4 months earlier- and then terminated the Complainants employment.

The Complainant advised her old email had been cc'd into the email, so when she finally got into the account she saw 2 emails from Clodagh Holohan in HR.

The Respondents Formal disciplinary procedure states 'in all cases where an employee's performance, attendance and/or conduct fall below those expected by Uber, the formal procedure will apply. In such cases, following appropriate investigation, a disciplinary hearing will be held with the employee to put the allegations to them and to hear their response to the issue'. The Complainant was not given any notification of requirement to attend a disciplinary hearing as per the contract, nor was she afforded the right to be represented by a consenting fellow colleague to ensure fairness. She alleged she was indirectly discriminated against due to the fact that she had medical issues and was treated inferior as a result.

The Complainant advised that when she opened the 2 letters in her work email stating that she had been terminated, she sent an email and cc'd in her Team Lead and Manager with a copy of her sick cert showing that she had a valid one all along and that she was wrongly terminated. She also Whats apped Tracy Kiely explaining the same with a copy of the sick cert and asking if someone could help. The Complainant go no reply from either despite them knowing she had been out sick with PND and that she had never had an issue previously with providing a sick cert.

The Complainant also stated that it could be seen from an email between her and Clodagh in HR that they did not contact her via her personal email as they did not have it, but she had provided this to Uber the previous November due to having the same issue of being locked out, so they did have it if they needed to contact her and could have easily assumed that she was not replying due to this issue occurring again.

The Complainant alleged that Uber unfairly dismissed her without following the correct procedure. A contract of employment requires both the employer and employee to maintain trust and confidence. The Complainant alleged Uber did not consider her feelings or how their actions would affect her ongoing medical condition which they were aware of, in the way they treated her while out on protected sick leave.

Under the title disciplinary procedure the Respondent  state that ‘due consideration will be given to extenuating circumstances’, yet Uber gave no consideration for the Complainants wellbeing. For her managers to then ignore her and show zero compassion despite them knowing how much she was struggling mentally, shows how the trust in their relationship was irrevocably broken due to their conduct in terminating the Complainant. She alleged Uber has failed in its treatment of her as an employee as it went against its own fair policies and procedures as outlined in their handbook.

The Complainant  has made a complaint of constructive dismissal under section 8 of the Unfair Dismissals Acts 1977 – 2015.

The Respondent denied the Complainant ’s complaint in its entirety and its position is outlined in more detail below.

The Respondent is a limited company, with a registered office at 47 Thomas St, 3rd Floor, Limerick, Co. Limerick, Ireland. The Complainant commenced employment with the Respondent on 1 October 2018 as a Community Support Representative and her annual salary at the date of termination was €28,900 (following a salary increase on 1 March 2023). The Complainant ’s Employment Agreement was supplied. Copies of all of the Respondent’s policies and procedures were made available to the Complainant on the Respondent’s intranet and same was explicitly flagged to the Complainant in her Employment Agreement.

The circumstances of the termination of the Complainant ’s employment are set out in detail below. In essence, the Complainant ’s employment was terminated on 24 July 2023 due to her failure to provide up to date medical certificates and failure to contact the Respondent to explain the reasons for her continued absence. Shortly after the termination of her employment, the Complainant contacted the Respondent and as a result of this contact, the Respondent rescinded the Complainant ’s termination on 3 August 2023. On 9 August 2023, the Complainant wrote to the Respondent stating that she did not wish to accept the Respondent’s offer to rescind the termination of the employment. Subsequent to this date, the Respondent indicated to the Complainant that her role remained available for her. However, the Complainant confirmed again on 25 August 2023 that she did not wish to return to work. On that basis, the Complainant ’s employment was terminated for the second time. The Complainant wrote to the Respondent on 8 November 2023 stating that she wanted to return to her role, however, unfortunately by that point in time the Respondent was at full headcount.

CHRONOLOGY OF KEY EVENTS –

1 October 2018: Complainant  is hired by the Respondent as a Community Support Representative.

 11 January 2023: Complainant is absent from work on sick leave due to a post-natal related illness. The Complainant submits medical certificates in respect of this leave on a monthly basis.

22 June 2023: The last medical certificate received by the Respondent from the Complainant, expires on this date.

3 July 2023: The Complainant ’s line manager (Mr. Scott Grainger) emails and texts the Complainant seeking an update.

4 July 2023: Mr. Grainger calls the Complainant but gets no response.

4 July 2023 The Respondent’s HR Team email the Complainant but get no response.

5 July 2023: Mr. Grainger calls the Complainant but gets no response.

11 July 2023: Mr. Grainger calls the Complainant but gets no response. Mr. Grainger leaves a voicemail stating that the Complainant ’s medical certificate has expired.

18 July 2023: As no contact had been made by the Complainant, the Absent Without Leave process was initiated and the Respondent’s Human Resource Team emailed a letter to the Complainant  in relation to her failure to provide up to date medical certificates and failure to contact the company to explain the reasons for her continued absence. This letter flagged that unauthorised absence without good cause could lead to dismissal and that if the Respondent did not hear from the Complainant by the end of the following day, she would be deemed to have abandoned her position, and her employment would be terminated. In the interests of clarity, the Respondent notes that this letter was incorrectly dated 18 March 2023.

20 July 2023: The Respondent’s Human Resources again emailed the Complainant and requested her to urgently make contact and if no contact was received before close of business on 21 July 2023, her employment would be terminated.

24 July 2023: As no contact had been received, a decision to terminate the Complainant  was made.

26/27 July 2023: The Complainant texted Mr. Grainger & Ms. Tracy Kiely (Senior Team Leader) and stated that she had no access to her Uber email/account and that she had forwarded on sick certificates but that nobody had acknowledged them. The Complainant included screenshot of a sick certificate dated 28 June 2023. On the same day, the Complainant emailed Human Resources in relation to being locked out of Uber’s systems and stated that she had emailed Mr. Grainger and Ms. Kiely multiple times in the past week and had not received a reply. The Complainant again attached a screenshot of the 28 June 2023 sick certificate. The Respondent has checked its records and has confirmed that, while it does have records of the Complainant  contacting IT, it does not have any record of any emails with a sick certificate being received on or around 28 June 2023.

3 August 2023: As a result of the Complainant ’s contact with the Respondent, her termination was rescinded (10 days post-termination). The Complainant  was granted full access back to the Respondent’s systems.

7 August 2023: The Complainant was asked to provide an updated medical certificate.

9 August 2023: The Complainant stated that she did “not wish to accept your offer to rescind the termination of my employment. Unfortunately the trust has been broken down as a result of Uber’s actions in dismissing me”.

14 August 2023: Human Resources outlined to the Complainant that the role remained open to her when she was medically fit to return and asked her to confirm her position.

 15 August 2023 The Complainant indicated to the Respondent that she had not been sent any text messages and had not received emails as they were sent an old personal email address. The Respondent notes that no new personal email address had been provided by the Complainant to the Respondent and the personal email address used was the one provided by the Complainant  to the Respondent and from which the Complainant  was herself sending emails in late July/August 2023.

17 August 2023: Communication between Human Resources and the Complainant  wherein Human Resources states again that the Complainant ’s role remains available to her and seeks clarity as to the Complainant ’s position in respect of same.

25 August 2023: The Complainant confirmed that she did not wish to return to work as she felt the trust had broken down. Following this instruction, her employment was terminated.

8 November 2023: The Complainant wrote to Human Resources and said that she wanted to come back to her role if that is something Uber was willing to discuss. Unfortunately, by that point, the Respondent was at full headcount and not in a position to grant this request.

22 January 2024: WRC Complaint Form filed.

The Respondent strongly denied that the Complainant was constructively dismissed.  Section 1 of the Unfair Dismissals Acts defines constructive dismissal as: “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.”

In a claim of constructive dismissal, the burden of proof is on the Complainant  to establish that the actions of the Respondent were so unreasonable that she had no option but to resign and/or that a fundamental term in the contract of employment was breached. The Respondent submitted that neither test is satisfied in these proceedings.

In a A General Operative v a Religious Society ADJ–00002814 (2017) the WRC set out the test of constructive dismissal as: “In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant ’s resignation, and something that represents a repudiation of the Contract of Employment. … In effect the question is whether it was reasonable for the employee to terminate the Contract on the basis of the employer’s behaviour”.

In that case the Adjudication Officer referred to the Supreme Court decision in Berber v Dunnes Stores Limited [2009] IESC 10. The Supreme Court in Berber held: “That being the history of interaction between the Appellant and the Respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the Appellant judged objectively was not such as to amount to a repudiation of the Contract of Employment. The conduct judged objectively did not evidence an intention not to be bound by the Contract of Employment”.

The Labour Court stated in Cedarglade Limited v Tina Hliban UDD 1843 that the “contract test” requires that an employer be: “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”.

This had previously been held to be the case in Western Excavating (ECC) Ltd v Sharp [1978] WLR 344. It was further noted in An Operations Coordinator v A Facilities Management Service Provider [2021] ADJ- 00028293 that the contract test “requires repudiation of contract and not merely a breach of contract.” The Respondent submits that there has been no fundamental breach of the Complainant ’s contract of employment by its actions.

The Labour Court stated in Cedarglade that the ‘reasonableness test’: “asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving... They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981.”

As set out in Cedarglade: “the Complainant must demonstrate that the Respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by the application of a normal standard of reasonableness, an employee in the same circumstances as the Complainant would be justified in resigning in response to the employer's conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J. held: - “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu UDD 1756, the Labour Court referred to the Employment Appeals Tribunal decision of Beatty v Bayside Supermarkets UD142/1987 which, in referring to the need to utilise grievance procedures, held:“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the complainant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the complainant’s resignation he was not constructively dismissed”. This was summarised succinctly in Conway v Ulster Bank UD474/1981 where it was stated that in order to meet the reasonableness test, the Complainant  must have “substantially utilized the grievance procedure to attempt to remedy her complaints.”

Redmond on Dismissal Law” (3rd Edition) (2017) at para. [19.14] states that: ‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the complainant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

The Complainant must demonstrate that her resignation was not voluntary i.e. that she had no alternative but to resign. The Complainant  bears the burden to prove that the Respondent’s conduct was such that it was reasonable for her to terminate her contract. In this regard, the Respondent relies upon the UK case of Sothern v Franks Charlesly & Co [1981] IRLR 278 as cited by the EAT in Cafferkey v Metrotech Services Ltd UD 1036/1988 wherein the Court states that “in the normal case if unequivocal words of resignation are used the employer is entitled immediately to accept the resignation and act accordingly”.

The reality of this situation is that the Complainant had not followed the Respondent’s procedure for submitting up to date medical certificates / maintaining contact with the Respondent in  respect of her ongoing absence. As a result of same, and in the absence of any communication, the Complainant ’s employment was terminated. In the interests of fairness, once the Complainant began to engage with the Respondent, the Respondent rescinded her termination. Subsequent to this rescission, the Complainant  unambiguously indicated to the Respondent on multiple occasions that she did not want to return to work. The Complainant belatedly sought the role back on 8 November 2023. However, the Respondent was not in a position to grant the Complainant her request as it was at full headcount at that point.

The Respondent notes that the Complainant failed to raise any grievance or complaint regarding the application of the sick leave policy prior to resigning. This is despite the fact that both the grievance and complaint procedures are available in the Irish Annex of the employee handbook as indicated to the Complainant in her Employment Agreement.

 The Respondent is satisfied that the Complainant was always treated fairly and in line with company policy in all respects. It is accordingly submitted that this claim should be dismissed in its entirety.

The Law.

“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.

(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 a 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 a 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 under statute.

Section 6(6) of the UD Act states:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Section 14(1) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7(2) of the UD Act provides that an Adjudication Officer may consider “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”.

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that for the initial dismissal: the reason for the dismissal was substantial and/or within the parameters of Section 6(4); and that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

I have also given significant weight to the Complainant’s attempts to mitigate her loss and the case of Sheehan v Continental Administration Co Ltd UD858/199 where it was held that: “a Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

Section 7 (2) of the Act deals with compensation and mitigation of loss.

(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 by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, 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 …

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

It was submitted on behalf of the Respondent that the failure of the Complainant to accept the rescinding of the dismissal should be a key factor in the consideration of any loss should the Complainant be successful in her complaint.

Section 7 of the Unfair Dismissals Act, 1977 sets out the limitation of redress:

Section 7(1)(c) allows for compensation of financial loss:

“ (c) payment by the employer to the employee of such compensation (not exceeding in amount of 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The Complainant gave evidence to the Hearing that she commenced employment in 2018 and went on sick leave in October 2022 and took 5 weeks parental leave and maternity leave due to the birth of twins and was due back to work in March 2023 but due to PND and a family bereavement she was on medication. She advised she logged into her UBER account but was locked out due to inactivity. She advised she always contacted IT (which was in a different country) and gave a personal email address. She advised she emailed her sick certs via her personal email.  She advised she reached out to IT on July 20th to say she had new sick certs. She advised she eventually got access and had valid sick certs for the time she was out of work. She advised there was no contact by the company to her. She advised she received an email that was misdated by 4 months. She advised there was no investigation or disciplinary meeting. She asked for the Employee Handbook on August 22nd and received it on August 29th.  She submitted an information request and advised that the trust had broken down. She advised she had no issues at work and worked 2 shifts. She advised she was still out of work, had done SNA training and had made applications to schools for work. She submitted details of what she received weekly as a Carer. The Complainant was cross examined by the Respondent Representative on her knowledge of company procedures and the requirements to submit medical certificates.  The Complainant accepted that the company had a grievance procedure on the intranet and was questioned did she avail of it and the Complainant responded about the IT Department being in Manilla and being difficult to deal with that she had requested access to documents a number of times. The Complainant accepted she did not raise a grievance but had reached out a number of times for people to hep her. The Respondent Representative took the Complainant through the history of her leave and sick leave and submission of sick certificates. The Complainant was also cross examined on her attempts (or lack of) to contact the company when her access was denied to the email system and that she had the phone numbers of staff but did not call them. The Complainant advised she did not know the staff emails. It was put to the Complainant that she made no effort to contact the company when requested to do so and the Complainant advised the Hearing of personal circumstances at the time which affected her responding to the contacts (which were outlined) made with her. The Complainant was questioned about this and the reasonableness of her actions. The Complainant advised she only turned her phone back on July 12th after a holiday in Ireland. The Complainant was questioned about her inactive email account yet she had sent emails from it.  The Complainant accepted she had received an email on 18/7 but did not reply to it. It was put to the Complainant that the only time she engaged was when the dismissal took place. The Complainant was asked why she did not accept the rescinding of the job offer and she advised she received no apology, the bond of trust was broken and the company did not follow its own disciplinary procedures. It was put to the Complainant that there was no breakdown of trust and that the Respondent had made numerous efforts to contact her and that the Company had offered, at the time,  to keep her post open until she was medically fit to return. The Complainant was questioned abut her change of mind in November and she advised that she had got a fit to return to work certificate. She advised she thought the bond of trust issue would not be an issue as she would be on night shift and not working with the management staff she had previously worked with.  The Complainant advised that her issue was not about money and she wanted to return to work for her own personal reasons. The Complainant advised she had applied for about 15 to 20 jobs since being unemployed mainly for SNA roles. She named 3 employers she applied to and confirmed she had attended no interviews for jobs. She advised her personal circumstances now allowed her to work nights.

Ms. Clodagh Holohan gave evidence to the Hearing that she was a member of the People Partner Team and her work covered 7 countries. She advised the Headcount in Ireland was between 450 and 530 staff, mainly in Limerick. She advised the Limerick office dealt with inbound queries from drivers and safety incidents and the Complainant worked in a section with about 35 to 40 people. She advised the role involved attention to detail, good communications and customer support skills.  She advised the grievance process was contained in the company handbook. She advised the documents  were on an intranet. She advised the Complainants last sick certificate was 23/6/23 and employees were required to update their personal details on the UBER system at least once a year. Ms. Holahan when asked about why she had no disciplinary meeting with the Complainant stated they had tried to contact her multiple times without success so contact was not possible. She advised the Complainants employment was rescinded when the full facts were known and the Complainant was offered her job back when she would be fit and well enough to do so. She accepted the Complainant had contacted IT and that she had been locked out of her account. She queried why the Complainant had not contacted the local IT department when she realised she had no access to her IT account. Ms. Holohan advised that the matter of the termination of the Complainants termination was dealt with by a colleague elsewhere. Ms. Holohan advised that the team the Complainant had been part of had declined in size since her employment ended.

Ms. Tracy Kiely, Senior Team Leader gave evidence that the email she used to contact the Complainant was not obsolete. She advised she attended a post dismissal mediation meeting with the Complainant to try resolve the issues but the parties were very far apart in trying to find a financialsolution. She advised the Complainant had never mentioned wanting her job back. She advised there was no issue with sick certs between February and June but the conclusion was the Complainant had abandoned her post but not making contact with the Company. She stated the Complainants prior work record was very good. She confirmed under cross examination that the relationship between her and the Complainant was very good and they would have exchanged phone calls and texts and that the Complainant would have had her phone number. She advised the contact was mainly about work issues and she would have checked in how the Complainant was feeling. She advised the Complainant had told her about her personal circumstances in February. Ms. Kiely outlined the Respondent efforts to make contact with the Complainant prior to her dismissal and that she was being kept in the loop about the situation by Mr. Grainger and others. Ms. Kiely denied there was any breakdown in trust and accepted that she and the Complainant were friends on Facebook and what’s App. Ms. Kiely was asked did she make any contact through these mediums when the Complainant made no reply to the Company contacts and Ms. Kiely stated it was up to the Complainant to reach out. She advised she was not aware the Complainant had been locked out of her account in November 2022.

I have considered the written and oral evidence and the circumstances of this case are unusual in many respects. I have never come across a situation where a dismissal was rescinded within a few days of the dismissal decision and then for the Employee not to agree to continue in employment. In the Complainants form to the WRC she had indicated that the complaint was for a constructive dismissal. The Complainant had submitted  a second complaint form in September 2024 and this was deemed out of time as it was beyond 12 months from the date of dismissal (the maximum time allowed in law) and the Adjudicator had no legal power to examine that complaint form as it was submitted our of time. Much was made by the Complainant at the Hearing as to whether this was a constructive dismissal or a dismissal by the Respondent and which complaint form should be used and I advised the Parties I would look at all the facts of the case and deicide the appropriate decision on the basis of the events.

Based on the written and oral evidence in this case I conclude that;

a)    The Complainant had submitted sick certificates for June and July but they were not received due to no fault of the Complainant

b)    The Complainant had been taken off the Respondents IT system for inactivity and was not getting the emails sent to her in that system including the emails to make contact with the Respondent

c)     When no sick certificates or contact was received, Members of Management staff made contact with the Complainant though phone and text messages which the Complainant did not accept or reply to prior to her being dismissed and her explanation that she had her phone on silent for personal reasons and did not get the messages is not credible.

d)    The Respondent dismissed the Complainant initially and the Complainant did not resign

e)    The Respondent acted reasonably once it found out the situation with the Complainant being off the company email system and sick certificates submitted and rescinded the dismissal immediately

f)      The Complainants refusal to accept the rescinding of her dismissal was unreasonable and her submission that the bond of trust was so broken she did not accept the rescinding of her dismissal does not stand the test of reasonableness when the Complainant was/is willing to seek her job back in November 2023 and through this current process (albeit she looked for a night shift role as redress through this process)

g)    The Respondent should have invited the Complainant to an investigation or disciplinary meeting to present its grounds for terminating the Complainant. I accept that the Respondent was not receiving replies to email correspondence but the fact the Complainant was in service for a number of years with unblemished service and the fact that some Management were aware of her personal circumstances emphasised more the need to ensure every effort to contact the Complainant was made before emailing a dismissal letter.

h)    The Respondents failure to send the Complainant a registered letter advising her of the potential to cease her employment and attend a disciplinary hearing was a failure on the Respondents behalf.

i)      None of these events would have occurred and the Complainant would still probably be an employee of the Respondent had the Respondent not taken the Complainant off their IT system and the Complainant had been more proactive in dealing with her Employer or colleagues when contacted by them.

As a remedy the Complainant sought reinstatement on the night shift to suit her personal circumstances.

From all of the above I have concluded that there are two fundamental issues in this case. The first is, was the Complainant unfairly dismissed. Based on the evidence presented I conclude that the dismissal that took place on July 24th 2023 was an unfair dismissal (not a constructive dismissal) on the basis the Complainant was dismissed based on mistaken facts and not given the opportunity to defend her actions. In addition, the action of the Respondent in rescinding this dismissal (albeit a sensible action) is adequate proof the dismissal was unfair along with not ensuring the Complainant was on notice of the situation through registered post and attempting to hold a disciplinary meeting to address the issue. I also have concluded that the Complainant has contributed significantly to her dismissal by not returning calls and her reasons for not getting the calls or texts were neither credible or reasonable.

The second major issue is the efforts of the Parties to mitigate loss. The Respondent offered the Complainant continued employment with no loss of income (in her circumstances at the time) when it rescinded the dismissal. The Complainant refused this and stated the bond of trust was broken. It would be inappropriate not to give significant weight to this offer and rejection in considering this case. The other factor to take into account are the efforts by the Complainant to mitigate her loss. The efforts described by the Complainant to mitigate her loss (outlined above) fall very far short of the efforts that are required by a person dismissed to reduce their losses.

Taking all these factors into account, I feel that the award of compensation is the most appropriate remedy as the possibility of reengagement or reinstatement is not a possibility, nor I believe reasonable, given the Complainants stated lack of trust in the Respondent and the Respondents position on the reduction in staff in the Complainants prior Department. Any consideration of compensation has to be significantly reduced because of the Complainants refusal to accept the rescinding of her dismissal and her very limited efforts to seek new employment or mitigate her loss. Given all these considerations I consider an award of 5,000 Euros is just and fair for the unfair dismissal.

I find the Complainant was unfairly dismissed and I award her 5,000 Euros compensation for breach of her employment rights.

Unfair Dismissal