Complainant

Respondent

Anonymised Parties

A Complainant

A Government Department

Representatives

Lorraine Williams Chief State Solicitor’s Office

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-00058376-001

16/08/2023

The Complainant has been employed as a Clerical Officer with the Respondent for almost twenty-five years.

In 2015 the Complainant began to suffer neurological difficulties. He has had various medical investigations and provided detail to the Respondent. He was absent due to depression and exhaustion during this period with no cause identified. He has been assessed by the Chief Medical Officer on a number of occasions.

In 2019 he was offered retirement on ill-health but declined to take it up as he was hoping to return to work. He was found fit to return to work on a part-time basis but this was not allowed in June 2019. He had an unsuccessful return to work in August 2019 and was told he was unlikely to return to work in the foreseeable future.  Despite a lengthy absence on sick-leave and difficulty returning to work due to his concentration and fatigue, the Chief Medical Officer found him fit to work on 6th April 2022. The Complainant said he continued to be unwell but tried to return to work on 12th September 2022. He needed to return due to financial issues. On 14th September 2022, he left work due to ill -health following a complaint of bullying against his supervisor. He said he was not given breaks he required.

There was a chain of emails with HR from 18th September 2022 when the Complainant was upset. He was ill. The Complainant said he might have to think of leaving the Respondent. He never said he was resigning. Due to his failure to respond to a number of emails which he never read as he was too ill, he was deemed to have resigned by the Respondent on 21st September 2022. This was due to his abandonment of his post, absence history, including unauthorised absence, breach of both Civil Service Sick Leave Regulations and Policy and the Civil Service Code of Standards and Behaviour, and an unsuccessful attempt to return to work on the 12 September 2022, it was then determined that there was no reasonable prospect of a return to work or the provision of regular service. The Complainant said the first he knew of this was on 21st of April 2023, when he received a letter referring to his resignation. He had not read the emails. He feels let down given his long service, the Respondent did not telephone him.

He provided a medical certificate from his GP advising of his inability to attend work from 16th October 2021 until 6th June 2021.

The Complainant complains that he has been unfairly dismissed. He had a good work record prior to his medical difficulties. He only found out about his dismissal in April 2023. He then appealed. He lodged his complaint as soon as the internal appeal was refused. He disputes that he resigned.

The Complainant was employed as a Clerical officer from 17th June 1991 until the termination of his employment on 21st September 2022. The relevant time period for a claim of unfair dismissal is 20th March 2023 however, the Complainant did not lodge his claim with the Workplace Relations Commission until 16th August 2023.

The Complainant must establish that his failure to lodge his complaint within the statutory six-month period is due to reasonable cause. The test for extending the time to lodge a complaint is set out in DWT0338 Cementation Skanska v Carroll. The Complainant is out of time for lodging a complaint and has not requested to extend time. Waiting for the outcome of internal processes does not provide a justifiable excuse for delay.

Without prejudice to the foregoing, the Complainant was absent on sick-leave from 23rd May 2017 until 19th July 2019. He returned to work on a phased basis on 22nd July 2019, but expressed concern about return to work on a full-time basis. He worked for two hours a day until 29th July 2019, when he submitted a letter saying he returned to work before he was fit, and was unwell. He was then referred to the Chief Medical Officer for assessment in August 2019, who confirmed the Complainant was unfit for work and the duration until return was uncertain.

The Complainant was requested to regularise his absence and to submit medical certificates from July 2019 until 4th February 2022. If not, he was at risk of being deemed on unauthorised leave for failure to comply with sick-leave Circulars. The Complainant did not provide the medical certificates, and the matter was referred to the Disciplinary Team.

By email of 14th April 2022, the Chief Medical Office confirmed the Complainant was not receiving any medical treatment for a condition, had made certain lifestyle changes, his activities of daily living were normal, having reviewed the file she found he was fit to return to work. She said the Complainants departure from work was due to a perception that the training was not satisfactory, and he would like to receive a copy of the training manual for his new role in advance. A new role was identified for the Complainant, and he was requested to attend for work on 12th September 2022. He was offered a meeting to discuss any supports required, and to confirm he would comply with sick regulations going forward. He was advised that failure to confirm he was returning by 9th September 2022 would result in a deemed resignation from 29th July 2022.

The Complainant responded that he never had an intention of resigning and never would. He returned to work on 12th and 13th September 2022, but he had difficulty concentrating. A meeting was held on 14th September to discuss any supports required following his period of absence. He complained about how his return to work had been handled and alleged bullying by a trainer. Arrangements were made for the Complainant to progress a dignity at work complaint. He was told he would need to return to the section pending any complaint.

The Complainant was absent from work on 15th September 2020 and had not contacted the office. He was requested to inform HR by 19th September 2022 if he intended returning to work. The Respondent said they would facilitate a phased return, training and accommodations could be discussed on his return. The Complainant emailed on 18th September to say he had been sick and “it looks like I very reluctantly have to leave a job I once enjoyed…”. HR emailed him asking if he wished to resign. He responded with a cryptic message and other queries.

On 27th September 2022, HR wrote again requesting the Complainant to clarify if he was resigning. It stated if I do not receive a reply by close of business on Friday it will be taken as confirmation that you have submitted your resignation. On 7th October 2022, HR not having received any response they made arrangements for the Complainants resignation. No communication nor medical certificates were received from the Complainant.

On 21st April 2023 a letter was sent to the Complainant confirming his resignation. On 28th April 2023 the Complainant wrote saying he had not resigned. HR wrote to him setting out the history of absence from 2017 to 2019, unpaid unauthorised absence from 29th July 2019 until 9th September 2022, return to work from 12th September -14th September 2022, 15-22 September 2022 on payroll but not attending work having considered the matter due to his abandonment of his post, absence history, including unauthorised absence, breach of both Civil Service Sick Leave Regulations and Policy and the Civil Service Code of Standards and Behaviour, and an unsuccessful attempt to return to work on the 12 September 2022, it was determined that there was no reasonable prospect of the Complainant’s return to work or the provision of regular service.

An appeal was received on 6th June 2023. The Complainant was notified this was unsuccessful on 2nd August 2023.

The Respondent relies on the decision in Bank of Ireland v O’ Reilly 2015 IEHC 241 which stated “ the onus is on the employer to establish that there are substantial grounds justifying the dismissal and that have resulted wholly or mainly from one of the matters specified in S6 (4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal…the question is whether the decision to dismiss is within the range of reasonable responses of an employer to the conduct concerned..”. The Respondent submits it acted fairly and reasonably, and the Complainant failed to engage in a proper manner. The Complainant cannot have been in any doubt that his employment was at risk and chose not to engage.

I heard and considered carefully the oral and written submissions of the parties.

The Complainant has a medical condition which impacts on his employment with the Respondent, accordingly special circumstances apply to this hearing. In order to maintain privacy for the Complainant, I am anonymising the identities of the parties to the complaint.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

The Complainant has long service dating back to 1991 as a Clerical Officer. He suffered from medical difficulties from 2015. He was absent on sick-leave from 2017 until 2019 with difficulties concentrating, and fatigue. He was diagnosed with depression and fatigue, and was attending further neurological tests.

The Complainant had an unsuccessful attempt to return to work in July 2019. It was confirmed by the Chief Medical Officer on 28th August 2019 that he was unfit for work and unlikely to return to work for the foreseeable future.

The Complainant was requested to submit medical certificates from July 2019 until 4th February 2022 otherwise he was at risk of being deemed on unauthorised leave for failure to comply with sick-leave Circulars. The Respondent said the Complainant did not provide medical certificates and was on unauthorised leave for the period. At the hearing, the Complainant produced a medical certificate from his GP certifying his absence from 16th April 2021 until 16th October 2021. He said he showed the certificate and evidence of hospital appointments for neurological assessment to the Chief Medical Officer.

The Complainant was found fit for work by the Chief Medical Officer in April 2022. The Complainant was required to attend for work by 9th September 2022 otherwise he would be deemed to have resigned. The Complainant had another unsuccessful attempt to return to work in September 2022. He was absent from work by 15th September 2022 after a number of days at work. He emailed the HR representative on 18th September 2022 to say he had been sick and “it looks like I very reluctantly have to leave a job I once enjoyed…”. HR emailed him asking if he wished to resign. He responded with a cryptic message and other queries and then ceased responding.

The Complainant gave evidence that he was ill and did not read the emails that were sent by the Respondent. He said he did not know he was deemed to have abandoned his post on from 22nd September 2022 for failure to respond to emails. He never received any telephone call, or letter from HR asking if he was resigning HR until 21st April 2023. He disputes that he resigned.

I am satisfied from a review of the emails from 18th September 2022 between the parties, that the Complainant did not resign.

Dismissal of an employee is a significant step for an employer. SI 146 of 2000Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 requires that employers must comply with fair procedures and natural justice in a disciplinary process. Failure to comply can be taken into account by an Adjudication Officer. At paragraph 6 this requires employers to comply with the general principles of natural justice and fair procedures:

“That details of any allegation 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…..

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”.

The Supreme Court in Mooney v An Post [1998] 9 ELR 238 stated an employee is entitled to fair procedures, but what fair procedures demand will depend on the circumstances surrounding the proposed dismissal.

The High Court in Flanagan v University College Dublin [1989] ILRM 469 found where there are serious adverse consequences for an individual the criterion for fair procedures to be applied must be the consequences for the person of an adverse verdict.

I have no doubt the Respondent was frustrated by the Complainant’s failure to respond to their emails, and to comply with procedures. However, in order to progress any disciplinary or other procedure against the Complainant, it is essential the Complainant is on notice of the allegation or charge against him and has an opportunity to respond. The Complainant never received any telephone call, letter by courier or registered post asking if he was resigning until the letter of 21st April 2023 confirming his resignation some seven months later (which resignation he disputes). I find the Complainant is a credible witness, I accept he was unaware of what occurred and expected to receive formal notice of any process. He had also notified the Respondent he was ill at the time.

This complaint was received by the Workplace Relations Commission on 16th August 2023. Accordingly, I find the complaint was made within the statutory period required by S41 of the Workplace Relations Act 2015.

I find the Complainant was unfairly dismissed on procedural grounds. In all the circumstances, the appropriate redress is reinstatement of the Complainant from 22nd September 2022 in order to preserve the Complainant’s superannuation rights.

The Complainant was unfairly dismissed. I direct reinstatement of the Complainant from 22nd September 2022 by the Respondent.