Case Number: ADJ-00006415. Workplace Relations Commission

• Court: Workplace Relations Commission
• Docket Number: ADJ-00006415
• Date: 27 July 2015
• Parties: A Personal Assistant V A Charity

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006415

Anonymised PartiesA Personal AssistantA Charity Representatives (Solicitor) Complaint:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00008838-001 17/12/2016 Date of Adjudication Hearing: 03/08/2017 Venue: Lansdowne House Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a PA from the 15th December 2005 to the 14th July 2016. She alleges that she was absent from work on sick leave since September 2014 as a result of a workplace injury. She stated that she submitted medical certificates to the Respondent on an ongoing basis during the period of her absence. She informed the Respondent by email on the 20th June 2016 that she was ready to return to work as the social welfare review board confirmed that she was fit to return to work. On the 14th July 2016, she received a letter from the Respondent stating: “As you have been absent without leave since 7th November 2015, we have had no other option but to adopt the view that you did not wish to continue in your employment with the respondent. As such, your previous working hours have been reallocated and are therefore no longer available. Your contract of employment with the respondent is therefore ceased with immediate effect.” She wrote to the Respondent on the 17th August and pointed out that she continued to provide medical certificates to [the respondent] throughout her period of absence from work due to the effects of a work related back injury and the suggestion that no medical certificates have been received since 6th November 2015 is totally incorrect. The Respondent wrote to the Complainant on the 25th October 2016 “During the period June 2015, July 2015, August 2015 and October 2015 there were various communications exchanged between you and the [respondent] in relation to your sick leave and your failure to submit medical certificates and the consequences of the failure to do so. The last medical certificate received by the respondent was on the 9th October 2015. Therefore, you are considered to be absent without leave. You were reminded on numerous occasions of your obligations to comply with the provisions of the [respondent] Absence Management Policy and the consequences of failing to do so. Consequently, you frustrated your contract of employment and are no longer an employer of the [respondent]. The Complainant filed a complaint under the Unfair Dismissals Act 1977 on the 17th December 2016 alleging that she was unfairly dismissed by the Respondent.

Summary of Respondent’s Case:

The Respondent outlined the following submissions at the hearing: The Respondent is in receipt of recent email correspondence of the 20th and 27th June 2016 in which the Complainant indicated her intention to return to work, having been cleared to do so by the Social Welfare Medical Review Board. The Complaint has been absent from work from September 2014. The Respondent received medical certificates covering her absence up to 6th November 2015, however no further medical certificates have been received since that date. The respondent recognises that ill health is an unavoidable fact of life and to this end has an Absence Management Policy in place which sets out the rules governing sick pay and the procedures to be followed when availing of sick leave. From previous correspondence from HR over the course of the Complainant’s absence, you were advised that employees are required to comply with the provisions of the policy when they are unable to attend work due to illness. Specifically, medical certificates are required from the 3rd day onwards and must cover the full period of the absence. Medical certificates much be submitted on a fortnightly basis in a timely manner to facilitate rostering and cover arrangements so as to ensure service delivery is not impacted. The Respondent has not received medical certificates or any other communication from the Complainant since the 7th November 2015 and she has not been on any other form of approved leave. The Complainant has been viewed as being absent without leave effective from that date. Employment is dependent on the employer providing a role and the employee being able to fulfil that role through regular and uninterrupted attendance at work. The Complainant has been absent without leave since 7th November 2015 and the Respondent therefore, has no other option but to adopt the view that she does not wish to continue in her employment with the respondent. As a result, her previous working hours have been reallocated and are therefore no longer available. Her contract of employment with the respondent is therefore ceased with immediate effect. Her P45 will be issued to her new address early next week. The Respondent received correspondence from the Complainant on the 17th August 2016, 1st September 2016, 16th September 2016 and 6th October 2016 in response to her dismissal. The Respondent outlined the following position: The Respondent now has had an opportunity to review all of the documentation in relation to the Complainant’s employment. Two particular matters of a material nature arose in the course of the Complainant’s employment with it. The Complainant worked with the respondent in the capacity of a PA providing services to a vulnerable and disabled service user. By letter dated 16th February 2015, the solicitor for that particular service user wrote to the respondent in connection with the Complainant. The letter in question made certain very serious allegations against the Complainant pertaining to significant sums of money that had been taken/misappropriated from the service user by the Complainant. The allegations stated that as part of the Complainant’s duty in her capacity of PA she had access to the service user’s finances to assist with day to day living and expenditure. The sum of money involved, which was alleged to have been misappropriated was €28,000 and this misappropriation was alleged to have been carried out by way of fraudulent cheques being issued. In addition, it was alleged by the service user that further sums of moneys had been loaned to the Complainant and had never been repaid and that furniture belonging to the service user had also been allegedly taken by the Complainant. The solicitors concerned informed the respondent that they had written directly to the Complainant in her personal capacity in relation to the money allegedly taken from the service user’s account and were awaiting a response from the Complainant. The respondent in its capacity as the employer of the Complainant was put on notice by the solicitors that the Complainant was employed by the respondent when the alleged offences took place. The respondent wrote to the solicitors concerned on the 25th February 2015 informing them that given the very serious criminal nature of the allegations detailed in their letter of the 16th February 2015 that the matter should be referred to An Garda Síochána for an investigation. The respondent wrote to the Complainant on the 27th April 2015 enclosing a copy of the letter received from the service user’s solicitors and informed the Complainant that the matter was being viewed as extremely serious. The Complainant was reminded of the Respondent’s Code of Conduct whereby the acceptance of gifts or borrowing money from a service user is viewed as gross misconduct. The Complainant was also informed that an investigation was to take place by the respondent and in order to conduct the internal investigation it was necessary to ascertain the Complainant responses to the allegations made against her. As the Complainant was on certified sick leave at the time, as an alternative to scheduling a meeting with the Complainant, at that point the Complainant was requested to submit a written statement outlining her responses to the allegations made by the service user’s solicitors in their letter dated 16th February 2015. That written statement was to be furnished as soon as possible but no later than close of business on Friday 8th May 2015. The Complainant was provided with a copy of the Respondent’s Disciplinary Policy as well as a copy of its Code of Conduct. It was entirely reasonable for the respondent to seek an explanation from the Complainant given the very serious nature of the allegations which had been made against her. The respondent received further correspondence from the service user’s solicitors by letter dated the 27th April 2015 informing the respondent that it intended prosecuting the allegations on behalf of the service user and that they intended to name the respondent and the Complainant as joint defendant in the said action. No response was received by the respondent from the Complainant to its letter dated the 27th April 2015. On the 5th June 2015, a further letter issued from the respondent to the Complainant informing her that she had failed to respond to the request for a response to the allegation made by the particular service user. The Complainant was asked to attend a...