Complainant

Respondent

Anonymised Parties

An Analyst

A Company

Representatives

Rosemary Mallon BL A & L Goodbody Solicitors

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-00057916-001

26/07/2023

The Complainant was employed as an Analyst.

The Complainant was employed with the Respondent from 13th June 2005 until 4th April 2023.

She was notified of her dismissal on 7th February 2023 and was escorted off the premises. The Respondent says the termination of her employment was not due to her fault, nor alleged misconduct, poor performance nor a disciplinary issue. She does not know of any reason for her dismissal other than she has legal proceedings ongoing. She denies any alleged breakdown in the trust and confidence of the employment relationship.

The Complainant was diagnosed with claustrophobia in 2013. She refused the Respondent access to her medical records unless it formed part of the discovery process in her Court proceedings. The Complainant has appealed to the Labour Court in two other complaints relating to her return to work from work-related stress.

The Respondent accepts the process resulting in the dismissal was procedurally unfair, but maintains there are substantial grounds for dismissal. It says the Complainant contributed 100% to her own dismissal. There was a mutual and irreparable breakdown in trust and confidence between the parties. As a result, it was impossible for either party to have a workable employment relationship. The Respondent reached this conclusion and determined that the employment relationship had to come to an end.

Without prejudice to the foregoing, it is submitted the remedy of reinstatement (or re-engagement) is patently not suitable in this case.

The Complainant was certified fit to return to work in 2021 after being on sick-leave for over two years. The Complainant’s normal role involved working in the laboratory, and she had expressed a preference to be redeployed while ongoing legal proceedings are underway.

The six weeks return to work timeline concerned the Complainant as she had been absent from work for over two years, and it would take some adjustment to reintegrate back into the work environment. Returning to work two days per week initially was acceptable, but the Complainant’s G.P. felt an evaluation would be required prior to increasing her hours.

On the 1st of November 2021 the Complainant returned to work, on an initial two day week, to daytime hours as opposed to the shift cycle associated with her role, and she completed her induction training. The Complainant was paid 100% of her base pay plus shift allowance from her return to work on 1 November 2021 despite the fact she was working reduced hours and not working on a shift cycle.

On 7th of November 2021 one week following her return to work the Complainant raised a significant number of issues which were:

Noting that she had only received the letter dated 26 October 2021 by email and not by post; confirming “for record purposes” the copies of documents she brought to the meeting on 26th October and shared with two members of management;  questionable, inadequate (not in compliance with health and safety) training practices;  it was unacceptable and an outrageous breach of one managers duty of care to her for him to “ignore and or refuse to make person critically aware” of her claims; her claims of potentially being allergic to specific components in the laboratory have not been properly investigated; the six week phased return to work proposed by the Occupational health doctor was not agreed to by her or her GP, but she is working towards these ‘imposed goals’; She required a certified true copy of her job description for her role, as well as a certified true copy of a list of all chemicals and reagents contained in the Laboratory; She required confirmation in writing that her trainers were bona fide trainers and sought certified copies of the credentials of any individual providing her with training, and evidence of same;  certification of completed training on the completion of any on the job training and certified true copies of training and certification that her previous trainers were bona fide trainers;  to be fit tested for a P3 face mask prior to entry into the Lab or weighing room; and a pair of safety glasses and safety shoes.

The company responded to the Complainant confirming a follow up appointment with the Occupational Health doctor had been organised, the Complainant had been medically certified as fit to return to her current role, and while she had a preference that she be transferred, no medical reasons had been provided. The Complainant’s allegations against the Respondent in respect of laboratory related medical issues did not prevent her from returning to work, she was not entitled to copies of the documents requested; providing assurance that she will be provided with all safety equipment necessary (safety glasses and shoes); a fit test for the P3 face mask/respirator would be organised. The Respondent was satisfied that the necessary Covid-19 risk mitigation controls and measures were in place. The Respondent says it was unreasonable for the Complainant to seek an agenda prior to meeting the company’s occupational health doctor.

In January 2022 the Complainant was diagnosed with claustrophobia by the occupational health doctor. Further correspondence passed between the parties and in March 2022, the Complainant stated that she felt she had been discriminated against due to her health issues and her legal proceedings, and she had not been provided with reasonable accommodations in respect of her return to work. Her complaints of disability discrimination were unsuccessful and were appealed to the Labour Court.

As Occupational Health concluded the Complainant has a disability claustrophobia and is permanently unable to wear a bullard hood, and would not be in a position to wear a P3 mask for longer than ten minutes. There was a need for a role/workplace assessment to assess the Complainant’s ability to carry out her role having regard to her claustrophobia and whether any reasonable accommodations can be made to enable her to perform her role. The Respondent submits it acted very reasonably but the Complainant was obstructive.

Ultimately, the Respondent says there was a breakdown in the mutual trust and confidence between the parties on a number of grounds:

the historical and continued disagreement of the Complainant with Human Resources regarding her title and duties,

the Complainant would only attend meetings under protest and under duress, requiring agendas and minutes,

that they were realistically not in a position to conclude a workplace assessment of her role as their medical assessor was not permitted to review the Complainant’s medical records,

and she maintained an alleged allergy to unspecified chemicals without any diagnosis on file and they had no means of testing whether she had an allergy to any chemical.

The Complainant was dismissed on 7th February 2022, paid notice, health insurance and an ex-gratia termination payment of twelve months salary. The Respondent says the decision to dismiss was within the range of reasonable responses as adopted by the High Court in Bank of Ireland v. Reilly [2015] IEHC 241and the Circuit Court in Allied Irish Banks plc v Purcell [2012] 23 E.L.

The Respondent submits the remedy of reinstatement and re-engagement would not be suitable in the circumstances.

This matter was first scheduled for hearing on 27th March 2024.

Prior to the hearing on 27th March 2024, the Complainant wrote to the Workplace Relations Commission objecting to the late filing of submissions by the Respondent on 21st March 2024 six days prior to the hearing. Parties submissions are required fifteen working days prior to the hearing in order for the parties to properly prepare for the hearing.  On 27th March 2024, I granted the Complainant’s application for an adjournment. I directed that any written reply from the Complainant to the Respondent’s submissions would be delivered to the Workplace Relations Commission and copied to the Respondent within four weeks. The Respondent to be provided with a period of two weeks from receipt of the submissions to make any further comments. The Complainant to be given a further two weeks to reply on any submissions. As the Complainant did not appear at the hearing on 27th March 2024, she was notified by post of the adjournment and directions. The parties were informed the case would be rescheduled for hearing.

The Complainant subsequently notified the Workplace Relations Commission and the Respondent of the appointment of Greg Ryan Solicitors and Counsel as representatives. On 5th December 2024, the solicitors were requested to provide any replying submissions to the Workplace Relations Commission in accordance with the directions made on 27th March 2024. On 8th May 2025, Greg Ryan solicitors informed the Workplace Relations Commission that they ceased acting on behalf of the Complainant one year previously.

The complaint was rescheduled for a second day of hearing on 30th May 2025. On 29th May 2025, the Complainant emailed the Workplace Relations Commission requesting an adjournment in order to obtain legal representation stating she had difficult circumstances, and she would rectify this. At the hearing on 30th May 2025, there was no appearance by or on behalf of the Complainant.

The Respondent made an application to dismiss the complaint due to the failure of the Complainant to prosecute her complaint. They noted the Complainant was actively pursuing her personal injury complaint against the Respondent during this time in which she is not legally represented. She had not applied for an adjournment in accordance with the procedures of the Workplace Relations Commission, and that there is no requirement to be legally represented before the Workplace Relations Commission.

Following the resumed hearing on 30th May 2025, the Workplace Relations Commission wrote to the Complainant requesting her to provide substantial grounds for non-appearance within seven days. No response was provided to this email. On 25th July 2025, the Complainant wrote to the Workplace Relations Commission stating that she was arranging legal representation, but notwithstanding this the Complainant has not appointed new legal representatives.

In any event, there is no requirement for legal representation for the Complainant before the Workplace Relations Commission. Her complaint was received by the Workplace Relations Commission in July 2023, and she had a lengthy period available in which to obtain legal representation prior to the hearing. In the circumstances, given the Complainant was notified of the hearing and her failure to attend the hearing on 30th May 2025, and to provide reasonable excuse, I must conclude the complaint is not well founded and dismiss the complaint.

The complaint is not well founded, and I dismiss the complaint.