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Max Two Years’ Salary Awarded For Discriminatory Dismissal Where Employee Dismissed For Failing To Submit Sick Certs

Facts: On 20th March 2019, the Respondent terminated the Complainant’s employment with immediate effect for alleged failure by the Complainant to furnish medical certificates for a period of 18 days. The Complainant was a full time counter hand/ shop assistant with the Respondent from 2nd June 2015.

The Complainant had a minor altercation with another colleague because of which the Complainant felt ostracised and on 21st September 2018 he was certified unfit for work for one week. He returned to work on 1st October 2018 and on his return he was advised that the said colleague had made a complaint against the Complainant. On 9th October 2018, a HR consultant attended the workplace and advised the Complainant that he had shouted at a manager and that he would be in receipt of a written warning for this. The Complainant also submitted that there was neither an investigation nor was the Complainant was given an opportunity to put forth his side of the case. In the said meeting, there was also a discussion about the grievance that the Complainant had raised against another company director, and was asked if he intended to leave the job at Christmas, for which the Complainant said that if the bullying continued, he would. The Complainant further submitted that he went on sick leave for ‘work place stress’ and submitted a medical certificate on 16th October 2019. The Company HR wrote to the Complainant on 18th October 2018 that “the company does not accept your absence as due to any work related stress…”. The Complainant collapsed on 4th January 2019 and was admitted to his local General Hospital for three days. The Respondent organised a medical examination and on 24th January 2019, which confirmed that the Complainant was not fit to work or currently fit to participate in discussions but recommended offsite discussions to resolve the matter when the Complainant’s GP certified he was fit to do so.

On 7th March, the Respondent wrote to the Complainant that very serious allegation of bullying were made against the owners and that this had to be addressed urgently. On 20th March 2019, the Respondent write to the Complainant to terminate his employment with immediate effect for failure to submit sick certificates covering the period from 1st March 2019. There was no advance warning from the Respondent about his failure to lodge sick certificates and the Complainant submitted that he had lodged the cert and produced a copy at the WRC hearing.

The Respondent argued that it did not treat the Complainant less favourably or that the Complainant was victimised or discriminated against. The Respondent argued that when the HR attempted to address the Grievance within one week of the allegations being made, the Complainant went on sick leave. The Respondent further argued that on 7th March 2019, it sent a letter requesting the Complainant to contact the Respondent within ten days to address the bullying case however, the Complainant did not respond. On 20th March 2019, a final letter was sent terminating his employment.

Findings: The Adjudication Officer found that there was no dispute between the parties that the Complainant’s illness is a disability under the Employment Equality Act 1998 (as amended). The Adjudication Officer noted that absence management is a complex area of employment law and that the Respondent did not have a detailed policy governing absence management. The Adjudication Officer found that the decision makers did not have sufficient knowledge or training of the legal procedures to be followed and that the letters from the Respondent to the Complainant fell below the standard of reasonable behaviour by the employer and that there was no reference to the Respondent’s own staff handbook and the procedures therein. The Adjudication Officer opined that before the decision to terminate was made, the Complainant should have been re-assessed by the Respondent’s doctor to determine his fitness to work, a return to work meeting should have been arranged and that any dismissal for incapacity needed to be examined in a structured way, relying heavily on medical advice and consultation with the employee. The Adjudication Officer held that to be able to make the decision to terminate the employment, the Respondent needed to be in “full possession of all material facts” concerning the Complainant’s condition. The Adjudication Officer found that the decision of the Respondent to terminate the employment was extremely heavy handed and most unreasonable. The Adjudication Officer found that the Respondent discriminated against the Complainant on grounds of disability and awarded the maximum compensation of two years’ remuneration to ensure the award was “effective, dissuasive and proportionate” in accordance with the Von Colson decision.

Takeaway for the Employers: This decision emphasises the importance of reasonable and ongoing communication with an employee who is on sick leave and ensuring that the employer has up to date medical assessments. It also highlights the importance of warning an employee of consequences of not submitting sick certificates and giving an employee an opportunity to explain and/or mend the issue before an employer acts on it. In this case the employer clearly was not in possession of all of the facts and/or the medical condition of the employee at the time he was summarily dismissed.

Authors – Anne O’Connell & Chaitra Girish Mallya

28th May 2020

https://www.workplacerelations.ie/en/cases/2020/april/adj-00021727.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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