The recent decision by the WRC in the case of An Employee v An Employer, ADJ-00008883, is extremely interesting as despite the Complainant looking for compensation for being unfairly dismissed, the Adjudicator felt the most appropriate remedy in this case was re-engagement. This case demonstrates that the WRC are willing to consider all forms of redress and the burden placed on employees to prove that they have made every effort to mitigate financial loss.
Background
The Complainant has been employed by the Respondent since 1999. It was accepted that he has always been a good employee and there had been no issues regarding his work. In 2016, the Complainant began to experience health difficulties and ultimately collapsed at work on 19.07.2016. This sparked the beginning of a number of periods of absence from work due to illness. The Claimant was out of work from 19th July 2016 to 18th November 2016, the 20th December 2016 to 30th December 2016 and the 1st January 2017 until his contract was terminated on 3rd March 2017.The Claimant subsequently took a case under the Unfair Dismissals Acts.
The Complainant refused the open offer of re-engagement made by the Respondent at the hearing as he felt that the employee/employer relationship had inevitably broken down and therefore felt the redress of compensation was more appropriate.
The Complainant stated that he loved his job and that it has been the only thing that kept him going after his wife died in 2015. In relation to his health issues, the Complainant submitted that he had a stent inserted into his heart after he collapsed at work in July 2016. He was certified fit to return to work in November 2016 but he had four weeks annual leave to take and he was told to take them. That leave expired on the 20th December 2016, however, on the 19th December, the day before he was to return to work, the Complainant fell and hurt his back. He submitted a sick certificate and was inevitably told he would need back surgery but it could not be performed until 6 months after his heart surgery. He was subsequently placed on heavy pain medication, which he submitted had an impact on his memory and the statements made in the meeting of 27th February 2017 with his employer. The Respondent appealed his termination but was unable to attend either of the scheduled hearing dates.
Decision
The Adjudicator concluded that the Respondent had breached its own policy, which states that “Should the long-term sickness continue for a period of 12 months or more the HR department with review the absence.” Additionally, it was held that the complainant did not receive fair notice that the question of dismissal was being considered. The medical report submitted by the Complainant in February clearly stated that the Complainant needed back surgery and that such a surgery could not be performed until 6 months post heart surgery. Ultimately, the Complainant did not need back surgery and if the Respondent had proceeded in line with their own policy and waited 12 months to review the Complainant’s employment, this case would have been avoided.
The Adjudicator found that the Complainant had been Unfairly Dismissed from his employment; however, the Complainant had made little or no effort to mitigate his loss and could only name one garage he applied to for new employment. The Complainant accepted that the reason he could not find new employment was due to his age and his lack of skills. The Adjudicator felt that asking the Respondent to compensate him, especially in circumstances where little or no effort was made to secure employment, is unfair. The Adjudicator ruled that the most appropriate remedy in these circumstances was re-engagement as of the 1st January 2018 with no break in service or pension contribution but he will not receive compensation for the period between the dismissal date and 1st January 2018.
For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
27th February 2018
Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie
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