Noonan Services Group Ltd (Represented by Management Support Services Ltd) v Ulrike Cronje (Represented by Fachtna O’Driscoll Solicitors)

 
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Labour Court

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HSC/18/5

DETERMINATION NO.HSD184

ADJ-00003008 CA-00004126-003

PARTIES:
Noonan Services Group Limited (Represented by Management Support Services Ltd)
and
Ulrike Cronje (Represented by Fachtna O’Driscoll Solicitors)
SUBJECT:
1

1. Appeal of Adjudication Officer’s Decision ADJ-00003008

BACKGROUND:
2

2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. A Labour Court hearing took place on 12th September, 2018. The following is the Determination of the Court:

DETERMINATION:
3

This matter comes before the Court as a complaint by Ms Ulrike Cronje (the Appellant) against a decision of an Adjudication Officer in her complaint that she had been penalised contrary to Section 27(3) of the Safety, Health and Welfare at Work Act of 2005 (the Act) by her former employer, Noonan Services Group Limited (the Respondent).

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The Adjudication Officer decided that the complaint was not well founded.

Background
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The Appellant was employed by the Respondent as a manager from 2006 until June 2016. She contends that she engaged in three protected Acts between September 2015 and May 2016. The Complainant submits that her period of sick leave arising from a cancer diagnosis, her complaint regarding a potential return to work at the Pfizer Client site and her refusal to agree to return to work at that location are ‘protected acts’ as defined by subsection 27(3)(a) and (b) and (c) and 27(3)(f) of the 2005 Act. She maintains that the Respondent penalised her because of those protected acts.

6

The Respondent contends that no penalisation of the Appellant took place as alleged.

7

In October 2015 the Appellant availed of sick leave following a diagnosis of cancer and was certified fit to return to work from the 14 th March 2016.

8

In March 2016, she was advised by the Respondent that she would return to work at the Pfizer Client site, rather than the Biomarin Client site where she had worked prior to her absence on sick leave.

9

The Appellant had expected to return to a posting at the Biomarin Client site. She had worked at the Pfizer Client site some years before and had sought a transfer away from that site.

10

On the 30 March 2016 the Appellant’s solicitors wrote to the Respondent advising that the Appellant did not agree to any changes to her terms and conditions of employment and was willing and capable of returning to work at the Biomarin Client site.

11

On 4 April 2016 the Respondent wrote to the Appellant’s solicitors to advise that the Biomarin Client site role was no longer available and that the Appellant was always aware that her position at that site was a temporary role. The Respondent also advised that a meeting had been arranged with Appellant for 29 th March 2016 but she had failed to attend.

12

On the 7 April 2016, the Appellant’s solicitors wrote to the Respondent advising that the Appellant was forced to take sick leave in September 2015 and was now being penalised for taking sick leave and had a legitimate expectation to return to work at the Biomarin Client site.

13

On 13 April 2016 the Appellant’s solicitors wrote to the Respondent disputing that the Appellant was aware that her role at the Biomarin Client site was temporary and stating that the Appellant’s illness appeared to be the only reason for attempting to change her terms and conditions of employment.

14

On the 28 April 2016 the Respondent wrote to the Appellant’s solicitors inviting the Appellant to meet at a suitable time and place to discuss if a resolution could be reached.

15

On the 12th May 2016 the Appellant’s solicitors wrote to the Respondent enclosing a copy of a medical report from the Appellant’s General Practitioner (GP), dated the 6 th May 2016, which stated that she was fit to return to work but that the positions on offer involving night work and shift work were physically too demanding for her at that time. The GP also stated that she understood from the Appellant that she had previously found the role at the Pfizer Client site to be a highly stressful job.

16

On the 25 th May the Respondent replied to the Appellant’s solicitor seeking clarification on how the GP came to the conclusion that the Appellant was not fit to work at the Pfizer Client site given that an Occupational Health Assessment had determined that she was fit to return to work and had not recommended any accommodation. The Respondent enclosed details of an administrative role at the Pfizer Client site which was available to the Appellant.

17

On the 31 st May the Appellant’s solicitors wrote to the Respondent to say that it was entirely inappropriate to question the legitimacy or expertise of the Appellant’s doctor and that on the basis of medical evidence the Appellant could not and would not accept a role on the Pfizer Client site.

18

On the 3 rd June 2016 the Respondent wrote to the Appellant’s solicitors advising that it did not understand on what basis the Pfizer Client site role was unacceptable or on what basis this had been determined. The Respondent advised that a second opinion would be sought from the Occupational Health Assessor who had previously met with the Appellant.

19

On the 9 th June 2016, the Appellant’s solicitors wrote to the Respondent to advise that it had amended a complaint form submitted to the Workplace Relations Commission to include a complaint of constructive dismissal, with the date of dismissal at the 7 th June 2016.

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Summary position of the Appellant

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The Appellant availed of sick leave from the Respondent in September 2015 following a diagnosis of cancer. During her period of sick leave she underwent courses of chemotherapy and radiation therapy. The periods of sick leave availed of by the Complainant amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

22

The Appellant was medically certified as fit to return to work on 14 th March 2016 and the Respondent advised her that she would be returning to work in the Pfizer Client site in Ringaskiddy. She had been working on the Biomarin Client site in Ringaskiddy prior to her availing of sick leave. The Appellant had previously worked on the Pfizer Client site in 2013 and had availed of sick leave arising from stress for a period in February 2013. She complained to the Respondent that returning to work on the Pfizer Client site would have a deleterious effect on her health. This complaint amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

23

The Appellant continued to refuse to return to work on the Pfizer Client site from March 2016 until she felt it necessary to terminate her employment in June 2016. Her continued refusal to return to work in the Pfizer Client site amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

24

The Appellant submitted that she had suffered stress while employed on the Pfizer Client site in February 2013. Her General Practitioner provided her with a letter in May 2016 advising that, notwithstanding that she had certified the Appellant fit for work on 14 th March 2016, the doctor considered the positions being offered to the Appellant by the Respondent were physically too demanding for her at that time and that the Appellant had advised the doctor that she found the role on the Pfizer Client site stressful.

25

She submitted that the Respondent refused to allow her to return to work on any site other than the Pfizer Client site and that there could not be a legitimate business reason for doing so. The Respondent failed to consider any reasonable accommodation efforts or offers with regard to the Appellant’s proposed return to the Pfizer Client site. This failure amounted to an omission by the...

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