Complainant

Respondent

Anonymised Parties

A Worker

A Care Home

Representatives

The claimant represented herself and was assisted by Ms.Beata Moksymuk

Donncha Kiely  for Niamh Walsh Martin A. Harvey & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00061686-001

19/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061686-002

19/02/2024

The claimant was employed by the respondent from the 30th.Oct. 2008 to the 24th.January 2023. The respondent denied that the claimant was unfairly dismissed and asserted that she voluntarily resigned from employment on the 24th.January 2023.

 In her complaint form , the claimant submitted as follows:

 Complaint no 2 Unfair dismissal

 I started working in X  Care Centre on the  30/10/2008 I was a cleaner there. I was appreciated employee - there was a bonus paid for people who declare working from September 2020 for 2 years and I got €1000 of this bonus. The minimum rate of payment in 2021 was €10.20 and I was getting €11.50 so I understand that the employer expressed their satisfaction with my work by paying me over national minimum and by paying me this bonus. I got married in 2016 and I was expecting my baby early in 2021. I started my Maternity Leave 03/04/2021 and my daughter was born 17/04/2021.

 After paid Maternity Leave (paid by Department of Social Protection) I decided to take unpaid leave from 10/10/2021 to 02/01/2022. Then I applied for Parent's Benefit from 03/01/2022 to 06/02/2022. I planned to return to work after that but decided to use my Annual Leave from 2021 and first 3 months of 2022. I was to return to work in March 2022 but unfortunately I got sick. I suffered from postpartum depression and I was not fit to work I presented my first doctor's cert 21//03/2022, spoke to my employer and it was agreed I would be emailing subsequent certs to HR Department. I have never failed to do it and if there were any problems HR contacted me and I resent them the certs.

On 01/06/2022 I was asked to meet HR manager - L  and the new director of the Centre – DON. We spoke about the future and options, like they offered me to return part-time, but it was too early and I was not ready to return to work. I would say that Sertraline (Serimel 100mg was the drug I was on) hardly started working and I really did not feel any better. We agreed I would remain on sick leave for now and we would talk again about my return to work.

 I kept emailing doctor's certs every month and there was no problem with my emails.

 I was a bit surprised that nobody wanted to see me at all to discuss my part-time return to work but I still was not ready to return so I just let this initiative in my employer's hands.

 At the beginning of 2024 I decided to meet with my employer to discuss my return or my leave - I was not sure what to do, I presumed my employer would want me to work through my notice period, which is 4 weeks as per my Contract of Employment. I rang my employer 16//01/2024 to talk to the director DON I was told by receptionist that she was busy so I asked her to ask her to ring me. I decided to show up myself in Care Centre at 17/01/24 but I was unlucky again - there was nobody available to meet me. I left another message asking for someone to call me back. Nobody rang me so 25/01/2024 I sent an email to HR. And I got the following  response to my email the same day:

 “Hi A,

 You are no longer an employee here in  X  Care Centre since 25th.Jan/2023. You can check on your revenue.ie for P45.

Kind Regards,  Human Resources”.

 My depression returned immediately I was in shock. I couldn't believe that this was happening to me. English is not my first language so I thought I must have misunderstood something. But there was information on Revenue website that my employment ceased 25/01/2023 and that I was paid €1212.00. I was devastated. All the work the drugs did and all the work I did on psychotherapy was lost.

 My depression returned and it is worse than ever. I can't sleep, I hardly eat, I have troubles caring my daughter again. I was still crying when I was sending very emotional email demanding explanations what happened and why I was treated like unwanted rubbish after 15 years of exemplary service, I received a response that I wouldn't know anything as she started working only February 2023. Then I received another email from her that the   DON  stated I had been out of work for over 2 years (not true, I started Maternity leave 03/04/2021 and sick leave 21/03/2022) and that my last cert was forwarded 12/12/2022. And this is another lie. My last last certificate was sent 15/01/2024. And I have to pay for each of the certificates - €50.

 I am devastated. After 15 years I didn't even deserve a call asking why I didn't send a cert (but I did). I have never received any notification I was dismissed form my job, I did not get the payslip for the last payment in January 2023. I still can't believe that people can be that heartless and arrogant. I am saying that as Ms.I mentioned that the DON  is open to accommodate me if I wish.

In her direct evidence the claimant  chronicled her sick leave absences and said that  she  had  developed  depression   and  thyroid problems. She was initially submitting sick certificates every 2 weeks and later submitted them on a monthly basis.   She met the  DON in mid 2022 who she found nice and was hopeful about her recovery. At the end of her sick leave in January 2024 the claimant wrote to the respondent’s mail address but no one replied to her contacts .She discussed the matter with her husband and concluded that her health would be better served if she terminated her employment so she sent an email to discuss termination. The reply from the respondent was that she did not work for them anymore. She  had kept sending in sick certs – her employment had been terminated without her knowing. She  checked with Revenue and the ending of her employment was confirmed for January 2023. The claimant said she worked for several years without any conflict and got no notification to say the respondent was going to cease her employment. The respondent had been so accommodating at the June 2022 meeting – she expected she would be welcomed back. Following consultation with her husband she sent an email on the 25th.January enquiring about how her employment was terminated .She wanted to finalise everything and was owed money. The company said they did not know anything – at this point she made her complaint to the WRC .The claimant said she was very upset and disappointed -she had been a respected worker and had won employee of the month.

The claimant said she was very sad when she was told  in January 2024 that she no longer had a job. She tried to contact the  DON to discuss her return to work but was advised that DON was busy. She called a few times without a reply and sent an email looking for clarity. The claimant said she was submitting medical certificates and they were costing her €50 per month. She was feeling better and she was ready to come back to work.

Under cross examination the confirmed her length of service with the respondent and acknowledged that the respondent had engaged with her in the middle  of June 2022.At that time her doctor had advised her against returning to work – she was suffering from depression. The matter of returning to work on a part time basis was discussed .The claimant accepted that the respondent valued her as an employee. It was put to the claimant that the matter of sick certs were what precipitated  the DON  into contacting the claimant in January 2023 and that a conversation took place on Jan. 24th.2023.It was put to the claimant that the email sent by the DON  to Ms.B on the 24th.Jan. 2023 proved that the  conversation took place. Subsequent to this the claimant received a payment that was 6 times her normal salary and was asked what she thought this money was for. The claimant referenced the non payment of a bonus and making a complaint to the WRC.It was put to the claimant that the payment made it clear that this marked the end of her employment.

The claimant confirmed she was still in receipt of illness benefit. She confirmed that she was in receipt of the DSP benefit from March 2022 to a current date and that she had not been available for work. The claimant confirmed she was fit  to return to work in January 2024 – when she approached the respondent she was advised that she had resigned 12 months previously. The claimant advised that she found alternative employment in August 2024 and was in receipt of more pay than she received from the respondent. It was put to the claimant that she had suffered no loss of earnings. The claimant  responded that she had worked for the respondent for 15 years and she just got fired without a letter. The claimant was in receipt of job seekers benefit from March until August .The claimant said she continued to submit medical certs  - she asserted that they were sent all the time to HR at the same address.

 The respondent submitted that the claimant was a valued employee .It was submitted that the email to Ms.B showed the conversation took place between the claimant and the DON .It was submitted that the claimant resigned on the24th.January 2023 and that the complaint was out of time. It was put to the claimant that she had not suffered any loss of earnings.

The respondent’s representative reiterated that the claimant was a valued member of staff and there was no incentive to dismiss her. It was asserted that the claimant resigned on the 24th.January 2023 and that consequently the complaint was out of time.

The following submission(25.11.2024)  and affidavit were  made by the claimant in response to the telephone records submitted by the respondent on the 15th.Nov. 2024

Dear Sirs,

I am writing to you in relation to my complaint CA-00061686-002 – Unfair Dismissal and the last correspondence forwarded by my former employer. My former employer recently forwarded a screenshot proving that they rang me 24/01/2023 at 13:10. The ringing time was 17 second and the talking time was 38 seconds. I confirm again that I haven’t spoken with  the DON that day. Possibly  she  connected to the voice mail which I have never used and which was not set up to give any notification as I am not a technical person and have never used voice mail on my phone. This would also explained why I do not have this call in my history as this call was neither connected nor missed. The length of the call – 38 second also proves that this was not a call. With my poor English I would may be able to establish who is ringing and to confirm that me is me but 38 seconds definitely is not enough for any communication especially long call as described by my former employer where they confirmed that I was valuable employee and doors are always open for me in the future. In this 38 seconds I would also need to confirm that I did not plan to return to work, which is not the truth as I planned to return. I would also expect that my former employer would discuss with me payment for time on sick leave and still unpaid 1000e of bonus. No, this call has never happened. And I would like to highlight again that attempt to end employment over the phone call after 15 years of service with a person who almost does not speak English is unimaginable wrong. In relation to doctor’s certs. As I previously mentioned when I got sick I started submitting Doctor’s certificates confirming I was not fit for work and it was from 21/03/2022. I kept sending my certs every month via email (as agreed with my employer) and I have never received any “undelivered email” notification. I have all the history of emails sent to my employer.

 Kind regards ,

Ms A     - the claimant.

1. I make this Affidavit in support of my complaint against  X  Nursing Home presently before the Workplace Relations Commission (WRC).

2. I say that it was stated at a WRC hearing by DON of X  Nursing Home that she spoke with me by telephone on the 24th.January 2023.

3.I say that no such telephone conversation took place and from the telephone records it shows a telephone call with a duration of 0:38 seconds which I believe went to my voicemail which has not been activated by me.

4.The said DON  has alleged that I resigned from my position with X  Nursing Home in the course of that telephone conversation , however , that clearly is not the case given the brevity of that phone call.

5.I make this Affidavit from facts within  my own knowledge  , conscientiously believing the same to be true.

At the final hearing of the matter on the 10th.March 2025 , the claimant submitted that she never set up a voicemail and submitted that her English was so poor that 38 seconds would not be sufficient time for any discussion. The claimant said the respondent should have documented everything  but did not do so. The  claimant said that  HR. did not confirm receipt of her medical certs. The claimant and her sister were adamant that the  conversation referred to by  the DON of the 24th.Jan. 2023 did not take place.

When the claimant was asked what she thought her final payment  was for the claimant replied that she thought it was for holidays owed for the previous year.There was no information with the payslip .The claimant submitted that she believed she was still in employment.

The respondent set out a chronological account of the claimant’s work and sick leave  history with the company .It was submitted that it was agreed between the claimant and the  DON that the claimant would return to work on the 14th.March 2022.It was submitted the claimant failed to turn up for work on the day and that the claimant was called several times by the DON .The claimant called on the 21st.March 2022 to say she would not be returning to work as she was still ill. It was submitted that the company and sick leave absence policy had not been complied with – in respect of reporting of illness “Staff due on day duty at 8am must report as soon as possible “ and “ an employee absent due to illness or injury for more than 2 consecutive days /nights must submit a medical certification on the third day .“

It was submitted that the respondent “ has yet to receive medical certification from the complainant for the period 14.03.2022 to 10.04.2022 – the first medical certificate was received from 11.04 .2022 to 01.05.2022.The D.O.N. contacted the claimant on the 4.05.2022 by phone and was advised that the claimant was out on long term sick leave with post pregnancy issues following Maternity Leave and it was submitted that the claimant agreed to send in certs following each appointment with the doctor. The representative set out a chronology of the dates when certificates were received and were not received .

A meeting took place between the claimant and the DON on the 1st.June 2022  “ to get a better understanding of the claimant’s illness  and to find out if there are any steps that the company could take that would enable to claimant to return to work. A record of the minutes of the meeting were submitted into evidence”.

It was submitted that on the 24th.Jan.2023 the DON contacted the complainant and advised that her last medical certificate expired on the 18th.Dec. 2022 .The DON was informed by the complainant that she would be out for another 2 years , and the” DON understood from the complainant that she was ceasing her employment and accepted the claimant’s verbal resignation. The DON then advised the complainant that she would be happy to accommodate her in the future to which the complainant agreed”.

The respondent’s representative set out a catalogue of 4  medical certs received from March 2023 and asserted that despite the claimant’s contention to the contrary  certificates were not received from the claimant in respect of 10 periods between December 2022 and February 2024. The representative challenged the authenticity of medical certs that were furnished by the  claimant by questioning the font type on the documents , the address and the signatures.

It was submitted that the respondent accepted the claimant’s verbal resignation on the 24th.Jan. 2023 and the respondent  denied vehemently that the claimant was dismissed. It was submitted that there was no issue with the claimant’s performance  and that she had been promoted to Senior Housekeeper .It was submitted that the respondent had been supportive and understanding and that she was contacted by phone when certificates were not received. It was submitted that it was reasonable for the employer to know when employees might resume duty in order to effectively manage. The representative referenced the June 2022 meeting where the offer of accommodating the claimant with reduced hours was discussed.

“On 24/01/2023, the respondent mentioned to the complainant that she could accommodate the claimant in the future and that she would be happy to do so and said the complainant agreed”.

It was submitted that if the claimant had been dismissed the respondent would have followed their rules and procedures policy  but the complainant was not dismissed . The respondent “ mentioned to the complainant that she could be accommodated in the future on the 24th.Jan. 2023 and that she would be happy to do so and the complainant agreed”.It was further submitted that in any correspondence from the  claimant there was no mention of dismissal.

It was submitted by the respondent’s representative that the complaints were out of time as they were not lodged until  the 19th.February 2024  and the claimant had in her complaint form correctly identified the date of termination as the 25th.January 2023.It was confirmed that the correct legal title of the respondent was  XXX Care Centre.

In her direct evidence, the DON  gave an overview of the claimant’s career history with the respondent – she said the claimant was an excellent employee – she set up a meeting with her in June 2022 and offered her an option of returning to work on reduced hours. The DON  submitted that the claimant stopped sending in certificates on the 18th.Dec. 2022 and that she rang the complainant  on the 24th.Jan. 2023 – she had discussed it with HR and” we wanted her to come back” .According to the witness she  asked the claimant about  stopping  submission of medical  certs and the DON asked the claimant  if she was not returning and the claimant responded yes to which the  DON replied we would happily take her back. The DON  said that it was her understanding that the claimant was resigning. The witness said she sent an email to HR and arranged for all outstanding entitlements to be paid. The ending of the employment was filed with Revenue. The witness said there was no communication back from the claimant about resiling or not returning to work. The witness reiterated that she did ring the claimant in January 2023 and that the call did not go to voicemail – she confirmed to HR that she had spoken with the claimant and that as she did not submit sick certificates she was resigning.

The claimant and her sister disputed  the respondent’s assertion that the claimant had been off for 2 years and asserted this was not accurate. The claimant vehemently disputed that the telephone conversation took place. The DON  was asked  in cross examination if she had any proof of the conversation and  she referred to the email to HR and undertook to check the company phone records. The witness said the submission of medical certs stopped and started and maintained that there were no certs received between Dec. 2022 and March 2023.The witness indicated that they could check with HR to establish if they had received the certs. The witness said the respondent was up to date with all outstanding payments including the  Covid bonus  for the claimant and that if it emerged that monies were due they would be paid to the claimant.

It was submitted that the complainant was not dismissed , that the respondent had indicated on several occasions that she could return to work- on reduced hours if it suited ; that the claimant did not try to retract her  resignation and that it was assumed that the complainant would resume employment “ 2 years after the Complainant ‘s verbal resignation given to the respondent on the 24th.Jan. 2023 “ .It was advanced that the claimant did not furnish all of the medical certificates to the respondent that had been furnished to the WRC and the respondent was challenging the authenticity of some of the medical certification submitted. It was submitted that the respondent did not  illegally deduct money from the complainant.

It was submitted that the email of the 24th.Jan. 2023 corroborated the respondents assertion of a conversation between DON and the claimant  and that there was a resignation. The respondent had tried to get the claimant back to work in June 2022.It was submitted that there was no motivation for the respondent to concoct a dismissal and that the claimant was an experienced and valued staff member. It was submitted that when the  respondent did not receive certificates post Jan. 2023 – they understood she had resigned from employment. The claimant was in receipt of illness benefit to March 2024.It was submitted that the complaints were  out of time as over a year had elapsed since the claimant resigned and the complaints were received by the WRC on the 19th.Feb. 2024  .It was submitted that the certificates  furnished by the claimant did not constitute evidence that the certificates were sent.

The respondent submitted  a phone record for the 24th.Jan. 2023 recording a call from the DON’s phone to the claimant’s number registering 17 secs ringing and a call duration of 38 secs .

In correspondence of the 15Nov. 2024 the respondent referenced 9 dates in 2023 when it was submitted medical certificates were never received. The responding submission to this  from the claimant is set out above.

Preliminary Matter of Jurisdiction

The matter of jurisdiction and whether or not the complaint  is in time turns on the question as to whether the claimant resigned  during a telephone call with the Director of Nursing on the 24th.January 2023.The claimant vehemently denies that any conversation took place while the respondent is adamant that there was a conversation during the course of which the claimant resigned.I have considered the entirety of the submissions made and the evidence given by the claimant and the Director of Nursing (DON).I have also taken account of the provisions in Redmond in  Dismissal Law in Ireland in relation to the subject of resignation:

“Resignation:

Where unambiguous words of resignation are used by an employee to an employer , and are so understood by the employer , generally it is safe to conclude the employee has resigned. However  context is everything .A resignation should not be taken at face value where in the circumstances ,  there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant”.

I note

1.The respondent has failed to present any documentary evidence to prove the claimant resigned.

2.Despite the fact that In her complaint form the claimant referred to having been unknowingly dismissed in circumstances where the respondent was contending that the claimant resigned on the 24th.Jan. 2023 , the  Director of Nursing  failed to attend the first hearing of the matter in July 2024      because she was “ tied up with assessments”.

3.I accept the evidence submitted by the respondent confirming that the Director of Nursing called the claimant’s phone on the 24th.Jan. 2023. The call was made at 13:10 and lasted 38 seconds However I did not find that a conversation took place or that  the claimant resigned in the course of the alleged  conversation to be convincing in the absence of any supporting or compelling  documentation. To corroborate the respondent’s contention that the claimant resigned in the course of the phone call ,  the respondent  is relying on the following email from the DON to HR which was sent at 1:19pm on the same day  :

In the final headline of the email the author asks HR staff member C “ C is this OK?”

“I rang A and stated that she has been out for more than 2 years now and that she is no longer covered by a sick cert. Her last cert expired on Dec.12th.2022.I said that I am assuming that she is finished up now as her cert has expired. I stated that if we could accommodate her in the future , we would be happy to do so. She said fine and our conversation concluded”.

 There is no reference in this document to resignation. It is unclear why the DON asked the HR employee “Is this ok”?.

When the claimant  sought engagement  with the respondent on returning to work in January 2024 she received the following email :

“ You spoke with  the DON  on Tuesday 24th.Jan. 2023.She said that you were out for 2 years and your last cert submitted had expired on 12/12/2022 – since no other certs were submitted by then that it was taken that you had finished up your post. The DON also said that if we could accommodate you in the future she would be happy to do so and you agreed “…

There is no reference  in this document to resignation.

3.Under cross examination the  complainant was  asked if she accepted that it was clear from her final payslip that her employment was terminated given that the payment was 6 times that which she normally received. In response the claimant replied that she assumed the additional monies were owed due to outstanding annual leave from the previous year .The pay slip furnished to the WRC  includes a handwritten note referencing” 101 hol hours” . There was no accompanying documentation referencing resignation or termination of employment.

4.The respondent has repeatedly reiterated that the claimant was a valued and “excellent” employee but has since the first hearing in July 2024      referenced sporadic submissions of medical certificates and questioned the authenticity of the medical certificates that were furnished. Whether intentionally or otherwise this reflects negatively on the claimant and infers impropriety on her part with respect to the absence policy. There is no evidence that such allegations were put to the claimant at any time and no evidence of her having an opportunity to rebut them. For her part the claimant has asserted that she never received an undeliverable notification of the certs she had submitted and was never challenged on either the authenticity or frequency of certificates .

I note in  a copy of an email from HR to the claimant which is undated that the claimant was advised to send her certs from now on to  a different email address .Notwithstanding this both parties continued to engage through the HR address .In her direct evidence the claimant asserted that she continued to submit the certs to HR.This may well explain the confusion regarding receipt of certificates by the respondent. Matters may have been compounded by the claimant’s poor English.

 While I acknowledge that the respondent has asserted that the production of the certificates by the claimant was not proof of having sent them , I found the claimant’s oral and documentary evidence of having submitted the certs to be convincing. The WRC  was  furnished with the claimant’s bank statement covering payments to her GP for  the 12months of 2023  in support of her assertion that the certificates were paid for. In her evidence the claimant asked why would she pay for these certificates if she was not going to submit them to the respondent. I consider it particularly noteworthy that the respondent’s record of the meeting with the claimant on the 1.06.2022 makes no reference to either sporadic submission of certificates or to the authenticity of the certificates.It would appear that the retrospective focus on the certificates was triggered by the claimants complaint to the WRC.No compelling explanation has been advanced by the respondent for failing to respond to  the   4 medical certs the employer acknowledges receiving following the alleged resignation by the claimant.

I found the claimant’s contention that  a 38 second phone call permitted insufficient time for a discussion about the claimant’s future employment to be compelling and convincing  .

In light of all  the foregoing factors  , I find on the balance of probabilities  that the claimant ‘s version of events was more convincing than that of the respondent’s  and consequently accept that she did not resign from her employment.

The first  notification the claimant received that her employment was  terminated was on the 25th.January 2024 and accordingly I deem that date to constitute the date of dismissal  which was issued without notice. Her complaint was received by the WRC on the 19th.Feb. 2024 and is therefore in time.

Based on the evidence presented I find the claimant was dismissed without due process , without reference to the respondents own procedures and  the process  was in breach of the provisions set out in SI146/2000. Accordingly , I am upholding the complaint of unfair dismissal. I accept the claimant’s evidence that she was available for work during the period March – August 2024  at which point , she secured alternative and better paid employment.

Section 7 of the Act provides that in determining compensation regard shall be had to “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 “.I consider the sum of €5,280 compensation to be just and equitable in the circumstances.

I require the respondent to pay the claimant €5,280 compensation for breaching the Unfair Dismissals Act.