Worker

Employer

Anonymised Parties

An Administrative Assistant

An Employer

Representatives

Self-represented 

HR Adviser

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00004088

08/04/2025

The Worker alleged that she was unfairly dismissed.

The Employer rejects the claim.

The Worker submits as follows.

The Worker commenced her employment with the Employer on 10 June 2024.

On 5 October 2024, during annual leave, she tripped and suffered serious injuries.  The Worker was out on certified sick leave from Monday 14 October 2024.

On 4 December 2024, the Worker received a letter from the Employer requesting that she attend for assessment with the Employer’s doctor. The letter indicated that the Employer wanted to establish a return-to-work date.

On 10 January 2025, the Worker attended the assessment with the Employer’s doctor. During that appointment the Worker was told that she would get back to work and that she would be seen again in March or earlier depending on the progress with physiotherapy, occupational therapy and treatments from a consultant surgeon.

On 30 January 2025, the Worker received by registered post Notice of Termination of her employment with effect from 7 February 2025 on the grounds of ongoing incapacity.

On 6 February 2025, the Worker hand delivered a response letter to the Employer in which she expressed her shock and disappointment at the decision and requested a copy of the medical report on which the Employer had based its decision.

On 26 March 2025, the Worker received a letter from the Employer which included a copy of the medical report from the Employer’s doctor.

On 8 April 2025, following due consideration, speaking to Citizens Information and researching the issue, the Worker referred her dispute to the WRC.

Point 1

The Worker has reviewed her contract of employment with Employer since the dismissal. The contract, in section 23 Termination, states:

“The company may terminate your employment without notice in the event: Are absent because of illness or injury for a consecutive period of 6 months.”

The Worker was not absent from work on certified sick leave for a consecutive period of 6 months when her employment was terminated.

Point 2

The medical report states:

·       Employer’s Question “What is the likely time-scale for recovery and/or when do you anticipate a return to work?”

·       Doctor’s Response “Based on today’s consultation, I do not anticipate her being fit to return to work for another 8 to 10 weeks, but I do expect that in time, she will be fit to resume her full range of duties.”

A return-to-work timeframe was available to the Employer following the medical assessment as requested.

Point 3

At no time while the Worker was absent from work on certified sick leave was it indicated that the question of her dismissal was being considered. The request to attend the medical assessment indicated that the Employer wanted to determine a return-to-work date. Hence, the Worker was given no time to response to her possible dismissal, to put forward her arguments as to why she should not have been dismissed before the Employer made its final decision.

Point 4

The Worker was not furnished with the Employer’s doctor’s assessment report nor was she asked for her own medical reports from her treating consultant, occupational therapist and physiotherapist teams or their contact details prior to her dismissal.

Point 5

There was no one-to-one meeting ever requested by the Employer’s management team/HR Department to discuss any temporary accommodations that may have assisted the Worker’s return to work.

Conclusion

The Worker sought compensation as she has since secured a new job and is in full-time employment.

At the adjudication hearing, the Worker stated that she was shocked as she did not think her job was in jeopardy. Her treatment had progressed and she had her surgery on 30 January 2025. She could have returned to work shortly after the surgery.

The Worker said that she provided her medical certs. If they were not sufficient, the Employer could have asked for clarification. The Worker said that she has never seen a staff handbook.

The Worker wrote her letter on 6 February 2025; she was available if the Employer wished to discuss the matter. However, she did not receive a reply until 26 March 2025.

The Worker said that she felt someone should have talked to her, she knew her absence was high, but it was due to no fault of her own. There was no conversation, no disciplinary process. The Worker said that had she known her job was in jeopardy, she would have considered amputation of her finger, which would shorten her recovery time. She said that if someone had explained the circumstances to her at the time, the parties would not have ended up in the WRC. While the end result might have been the same, she would get an opportunity to put her case forward.

The Employer submits as follows.

The Employer is managed and operated on the basis of lean systems by a small, dedicated team consisting of 17 service engineers and 6 administrative staff. Due to the size of the team consistent attendance and punctuality are a cornerstone of its operations. It has a significant customer base who demand a service based on quality and consistency

The Worker was recruited by the Employer in the capacity of Administrative Assistant and commenced employment on 10 June 2024. The Worker was subject to review following a probationary period of six months.

The Worker’s primary duties included telephone reception, cash collection, email enquiries, sales orders and interacting with the engineering team. It was a broad-based position as is common practice in a very busy office in a small team scenario. This function and the duties associated with it are pivotal to the case as the post holder is required to build a strong working relationship externally with the Employer’s customer base and internally with the other administrative functions and the service engineering team.

While on annual leave on 5 October 2024, the Worker was involved in an accident incurring significant injuries. From 18 October 2024, the Worker submitted regular medical certificates.

On a date between the submission of the second and third certificate the Worker spoke with the Office Manager and during this discussion she indicated that a complication had arisen and that she may have to undergo further surgery.

Clause 11 of the Worker’s contract of employment specifically states that employees are required to request their medical advisors to provide full details of their illness and an expected return to work date. This clause also details the Employer’s right to refer employees to the company doctor for assessment.

The Employer decided to act on the terms of this clause of the contract of employment and referred the Worker to its medical advisors. Having carefully and fully considering the report of its advisers the Employer decided to terminate the Worker’s employment.

The Employer rejects that the Worker was treated in an unfair manner or that fair procedures were not adopted when coming to the decision to dismiss the Worker. In her submission to the WRC the Worker highlights five points and, as she does not meet the service requirement to pursue a claim of unfair dismissal, these are the primary basis for her pursuing a case in accordance with section 13 of the Industrial Relations Act. The Employer argues that none of the five points taken individually or in any combination with each other merits a finding of unfair dismissal.

In response to the five points the Employer would make the following observations.

Point 1

In this section of her complaint the Worker argues that the Employer has breached the terms of her contract of employment as she was not absent for a period of six months or more.

The contract of employment does indeed refer to the fact that a person may be dismissed if they are absent for a continuous period of six months or more. This would assume that the employee would have been employed by the Employer for a period exceeding six months. This does not arise in this case as the Worker was only in the Employer’s employment for four months.

That said this does not detract from the fact that an employer has the right to dismiss an employee, with just cause, if it forms the view that the level of absenteeism is excessive and beyond what is considered acceptable.

In addition, if the level of absence might reasonably bring into consideration the ability of the employee to fulfil the terms of employment. From her start date (10/06/2024) until the date of her dismissal, allowing for public and company holidays, the number of workdays available to the Worker was 173. Of these, she was absent on certified sick leave for 89 days. This equates to an absenteeism rate of 51%.

According to the CSO the average workplace absenteeism rate in Ireland in 2025 was 8.5%. The Employer submits that the Worker’s level of absenteeism was excessive.

It is the opinion of the Employer that it did not breach the terms of the employee’s contract. The Employer maintains that it did not act unfairly as, in its view, the level of absenteeism despite its cause or nature was totally unacceptable.

Point 2

In this element of the Worker’s case, it is argued by her that the Employer’s Occupational Health Physician had given an estimated date for her return to work. On this basis she argues that the Employer acted prematurely in deciding to dismiss her.

The Employer denies that this was the case. The medical report based on an examination undertaken on 10 January 2025 makes the following pertinent statements.

·       “However, she continues to have reduced range of movement and strength in the fingers of her right hand”

·       “She is scheduled to meet with her treating Surgeon next week and it is expected that she will need a further surgical procedure for the management of these symptoms.”

·       “Based on today’s consultation, I do not anticipate her being fit to return to work for another 8 to 10 weeks…”

On the date of the consultation the physician estimated that it would be at least a further 8 to 10 weeks before the Worker could return to work. This estimate was provided noting however that the Worker was likely to have a further surgical intervention on a date unknown in the future. The Employer, while noting the estimate of the examining physician was also cognisant of the statement of the Worker that it was the opinion of her own treating surgeon that further surgery would be required. Consequently, the Employer had an estimated return date, but this was subject to other unknown consequences associated with the additional surgery which was to be performed on a date in the future.

The result of this was that at best the Worker would be absent for a further two months from the date of the examination. This would have resulted in a projected absence of 5 months.

Point 3

The Worker maintains that at no time did she consider her employment to be in jeopardy. The Employer is of the view that any individual employee with a 51% rate of absenteeism and being referred to the Employers occupational physician would have been very aware that the Employer was concerned. Referral to the Employer’s medical assessor was a very clear indication that the Employer was concerned as to her continued capacity and capability to perform the duties for which she was employed.

Point 4

The Worker states that she was not furnished with a copy of the Employer’s Occupation Specialist report. When the Worker requested a copy of the report, it was furnished without undue delay.

On the issue of the Employer not requesting reports from her treating doctors the Employer refers to clause 11 of the contract of employment which deals with absence through sickness and which specifically states that, “You are required to ask your doctor to give full details of your illness on the certificate and an expected return date.”

Therefore, while there was an onus on the Worker to provide this information, it was her right to furnish any additional information that would have supported her continued absence due to illness.

Point 5

It is accepted that there was no one-to-one meeting. It was however clearly evident from the report of the Employer’s Occupational Physician that the Worker was still suffering from reduced range of movement and strength in the fingers of her right hand and was going to be absent from work for a further considerable period of time.

On the issue of “temporary accommodations” that could have been put in place the Employer is of the view that this would not have been possible. The administrative team is small, and the Employer would not have the luxury of having staff who could not fulfil the full range of duties expected of them.

Conclusion

The Employer is a progressive company with a strong commitment to its employees. It offers competitive if not leading remuneration packages to its staff. It has operated a company sick pay scheme and access to a pension scheme long before either were required by legislation. It is none the less a small company that provides a quality service to its customers through effective use of the concept of lean management systems. The Employer relies on its staff having a strong commitment to excellent time and attendance standards. The Employer like other small organisations is not and indeed could not have staff on what might be referred to as “light duties” or similar schemes. Each employee has a defined role within the organisation and their continued employment is based on this.

Terminating an employee’s employment is not a decision that it has had to take too often and it would never take such a decision lightly. The Employer has a philosophy of being loyal and supportive to its employees and in turn this is reciprocated by staff.

It is unfortunate that the Worker suffered a significant injury. It did however result in her being absent from work for 51% of her tenure with the Employer. This had a significant impact on the Employer and on the other staff of the Employer who had to cover her functions for this extended period. The Employer had not alternative to terminate her employment.

As this case is being pursued in accordance with section 13 of the Industrial Relations the minimum service requirement does not arise. It falls upon the Employer to show that its actions were in the first instance justifiable and that in implementing its decision that fair procedures were pursued at all times. It is the Employer’s position is that its decision was justified and that fair procedures were observed at all times during the process.

At the hearing, the Employer’s representative suggested that, while the dismissal letter did not offer an appeal, it would have been in the Employee Handbook, albeit in the context of a disciplinary process. He clarified that the handbook was available in the office, but it was not furnished to each staff member. He further noted that the Worker was dismissed on medical grounds and not for a disciplinary reason. The Employer stated that it had responsibility toward the company, other employees and customers.

The Employer stated that it is up to the individual who are on sick leave to furnish all information, including their return date. The Employer agreed that the Worker’s cert stated that she was unfit to work until 14 February 2025.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

While an employee with less than twelve months’ service may not qualify for the protections afforded by the Unfair Dismissals Acts, this does not diminish their entitlement to fair procedures and natural justice in the handling of grievance and disciplinary matters.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the disciplinary and grievance process as follows:    

·       That employee grievances are fairly examined and processed.

·       That details of any allegations or complaints are put to the employee concerned.

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In reaching my conclusions in this dispute, I am mindful of the recommendation of the Labour Court in LCR22391 C&W O'Brien Architects v A Worker, wherein the Court took into account the provisions of the Code of Practice which, in the words of the Court: “emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

The WRC and the Labour Court have consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss a worker. 

There are a number of significant concerns regarding the process adopted by the Employer in this case, the most significant of which are detailed below.

While the Worker’s absence was lengthy, the Employer had an opinion of its own medical advisers which provided the Worker’s estimated return date. It is surprising that the Employer would argue that there could be some “other unknown consequences associated with the additional surgery” that impacted on its decision to dismiss the Worker. If the Employer had any concerns or queries regarding the potential surgery, it was incumbent upon it to engage with the Worker, her medical advisers, or indeed its own occupational health adviser, in order to obtain the necessary information, rather than relying on speculation or conjecture.

I note the Employer’s position that the Worker had “a very clear indication” that the Employer had concerns regarding her continued capacity and capability to perform the duties. In that context, I note that the Employer’s letter of 4 December 2024 makes reference to the recruitment of “temporary” replacement for the duration of the Worker’s absence, which appears to be somewhat misleading in the circumstances. Furthermore, in my view, an “indication” is not a substitute for adherence to fair procedures. Fair procedures require clear, explicit and unambiguous communication. They do not depend upon mere indications, nor do they require a Worker to infer, speculate, or read between the lines in an attempt to discern the Employer's intentions. The Employer's position and any proposed course of action must be communicated clearly and unequivocally.

It is apparent that her job was hugely important to the Worker. She stated that, had she been made aware that her position was at risk, she would have carefully reconsidered her treatment options, including the possibility of amputation rather than undergoing surgery that entailed a more prolonged recovery period.

The Worker was entitled to be informed that the Employer was contemplating her dismissal and to be afforded an opportunity to respond before any decision was made.

While this is not a claim under the Employment Equality Acts 1998 as amended, the matter of reasonable accommodation was touched upon by both parties, and I will briefly address it in the context of this dispute. I find the Employers assertion that as a small company, it “would not have the luxury of having staff who could not fulfil the full range of duties expected of them” disappointing to say the least. The Employer’s contention that, due to its size, it could not retain an employee who was temporarily unable to perform the full range of duties is difficult to reconcile with its obligation to consider what steps, if any, might reasonably have facilitated the Worker’s continued employment. The Employer made no attempt to ascertain what measures could be implemented to facilitate the Worker’s return to work. The size of the company does not absolve the Employer from its obligations to engage with the Worker, particularly when it considered the Worker’s dismissal.

I note that the Worker’s contract of employment provides for a probationary period of six months, which could be extended to take into account any absences. There was nothing put forward to suggest that the Worker’s performance was managed or addressed by the Employer in any way or that it was proposed to extend her probationary period, which effectively ended on 9 December 2024, in light of the absences.

While the Employer is fully entitled to address any performance concerns, including absenteeism, this can only be carried out where the Employer adheres strictly to fair procedures.

In the circumstances, I must conclude that the Employer’s handling of the matter clearly breached the Worker’s right to fair procedures and natural justice. Consequently, I find that the Worker was unfairly dismissed.

For the reasons outlined above I have found that the Worker was unfairly dismissed from her employment.  In the circumstances I recommend the Employer pay the Worker the amount of €10,000 in compensation for the dismissal.

Unfair dismissal – sick leave