Case Law Reviewed - Secretary found to be fairly dismissed

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February 02, 2022

Background

The Respondent is a sole practitioner accountancy firm. The Complainant commenced her employment with the Respondent on 3rd August 2004 and was employed to carry out secretarial duties. The Complainant was dismissed on 31st July 2019 as a result of her unexplained absence from the workplace. Prior to her dismissal, the Complainant was the Respondent’s only employee.

Summary of the Complainant’s Case

The Complainant worked for the Respondent for 15 years until she was dismissed by the Respondent by letter dated 1st August 2019. The Complainant believes that she was unfairly dismissed by the Respondent as a consequence of her absence from work due to a long-standing illness which she believes was known to the Respondent as she has suffered from bipolar disorder for a number of years.

The Complainant contends that it is clear that the Respondent knew that she was suffering from bipolar disorder when she was absent for two weeks in 2006. The Complainant believes that the Respondent was fully aware of her condition at that time, as she had discussed the fact that she had been a patient in a number of hospitals immediately prior to her absence in 2006. The Complainant was diagnosed with manic depression at this time.
The Complainant notes that, at the end of the letter of dismissal, the Respondent stated the “It is regrettable that you [the Complainant] have chosen to terminate your employment with me [the Respondent] in the manner in which you have and I hope that you have sought and will receive the appropriate supports necessary to aid your recovery”. The Complainants submits that this extract supports her contention that the Respondent knew of her illness.
The Complainant believes that her inappropriate behaviour was entirely due to her condition of bipolar disorder. The Complainant submits that in early 2019, her bipolar disorder re-emerged. She believes that this was due to the fact that her medication at the time failed to stabilise her moods. During this time, the Complainant sought help and was eventually accepted as a hospital in-patient from early July 2019 until the end of August 2019.
The Complainant refers to a letter from St Vincent’s Hospital regarding the Complainant which was sent to the Respondent in late July 2019 which the Respondent contends it did not receive. St Vincent’s Hospital wrote again to the Respondent on 26th September 2019 to say that the Complainant was hospitalised from 1st July 2019 to end-August 2019. The hospital confirmed that the Complainant was very ill during this time and had been for some time prior to 1st July 2019.
The Complainant asserts that the Respondent ignored her registered letter of 16th October 2019 in which she sought a copy of her personnel file. The Complainant believes that this shows that the Respondent had no intention of following fair procedures.
The Complainant asserts that her dismissal had a profound effect on her health and well-being. She also asserts that she lost any entitlement to redundancy or minimum notice which she had built up during her 15 years working for the Respondent.
The Complainant asserts that proper procedures were not followed by the Respondent when he made the decision to terminate her employment.

Summary of the Respondent’s Case

On Thursday 13th June 2019, the Respondent approached the Complainant at her desk. The Complainant was sitting at her desk with her computer screen off and advised the Respondent that she was on strike for better pay and conditions. The Complainant then left her desk and went outside for a smoke. The Respondent went out for a coffee and upon his return the Complainant obstructed his entry to his office by standing in the doorway. The Respondent went into his office and continued with his day's work. At 11.30am the Respondent noticed that the Complainant had gone from the office. The Respondent was somewhat confused about her disappearance and tried to contact the Complainant on her mobile a number of times. When this was unsuccessful, he then asked an employee in another business in the same building to contact the Complainant and meet her for a coffee. The Complainant did not attend for work on Friday 14th June 2019 or on Monday 17th June 2019. There was no notification or explanation for her non-attendance at work. The Respondent asked the same employee of the other business, who was known to the Complainant, to go to the Complainant's home to ensure that nothing had happened to her. The employee went to the Complainant's home. Later that day, the employee confirmed that the Complainant was at home.
Over the subsequent period, the Respondent tried to contact the Complainant via a number of text messages asking if she would be attending for work that day. She responded "No" and did not offer any further explanation, or did not respond at all.
The Respondent also asked the Complainant for passwords for the computer system so that he could access his business files. Again, his requests were ignored.
On Friday 21st June 2019 the Complainant left a voicemail on the Respondent's phone advising that she was on force majeure leave but gave no further explanation.
On Monday 24th June 2019, the Respondent sent a text message to the Complainant asking her to contact him regarding her current condition and seeking that she engage with him in a meaningful way before close of business on 28th June 2019.
The Respondent sent a letter to the Complainant on 25th June 2019 to point out that force majeure leave is reserved specifically for emergencies concerning immediate relatives and did not apply in her situation. He also repeated his request for the passwords to the computer system. In his letter, the Respondent noted that “despite my repeated attempts to ascertain your current condition you have refused to furnish me with a reasonable response and that you have further refused to provide me with an expected return to work date. Therefore, I have no other alternative other than to inform you that unless you engage directly with me before close of business, Friday 28th June 2019 that you are at risk of losing your position in the business.”
The Respondent did not hear anything further from the Complainant until he received a voicemail from her on Monday 15th July 2019 stating that she was on force majeure leave and that the Respondent was obliged to pay her salary for life whilst she was on leave. The Complainant demanded that her wages be paid to her in cash and sent to her address with a payslip. Again, the Complainant gave the Respondent no reason as to why she was taking force majeure leave.
During the remainder of July 2019 the Respondent received aggressive phone calls and voicemails from the Complainant. When the Respondent attempted to question the reason for her absence, she refused to respond other than to say that she was on force majeure leave. In particular, during telephone conversations that took place on the 17th and 23rd July 2019 the Complainant informed the Respondent that it was "none of his business" as to where she was.
By 1st August 2019 the Respondent had been left in a difficult position. In the Complainant’s absence, he had to engage the services of a temp agency. He also had to engage a software company to access his own business files. He had received no sick certificates from the Complainant and had no explanation from the Complainant as to why she was not attending for work. The Respondent attempted to engage with the Complainant on several occasions to ascertain what was wrong but was met with little or no response. The Respondent asked the Complainant to engage with him on numerous occasions both by text message and telephone calls. The Complainant refused to engage in any meaningful way. The Respondent gave the Complainant fair notice and warning by way of text message dated 20th June 2019 and in his letter of 25th June 2019 and was left with no other option but to terminate the Complainant's employment for non-attendance at work by letter of 1st August 2019. The Respondent contends that he acted in a fair and reasonable manner and did what would be expected of any reasonable employer in the circumstances.
The Respondent then received a letter from the Complainant dated 6th August 2019 seeking clarification as to her employment status. The Respondent would suggest that the Complainant’s employment status was made perfectly clear in the Respondent's letter of 1st August 2019.
The Respondent received a letter from a known Hospital dated 26th September 2019 which referred to a letter which the hospital had written to him in late July regarding the Complainant. The Respondent did not receive the July letter and it was noted in the letter from the hospital that the hospital's copy of this letter could not be found. The hospital letter stated that the Complainant was admitted to them on 1st July 2019 and was suffering from an acute illness. The Respondent did not receive any prior letter from the hospital and contends that it is highly unusual that the hospital cannot locate a copy of the July letter. The September letter did not give an indication as to the Complainant's condition or her expected return to work date. The Complainant made no further contact with the Respondent.
In her complaint referral to the WRC, the Complainant alleged that the Respondent was aware of her diagnosis of bipolar disorder. The Respondent denies being made aware of this at any stage by the Complainant.
The Complainant alleges that she was not given a disciplinary hearing. The Respondent utterly rejects this allegation. The Respondent requested that the Complainant engage with him on numerous occasions to discuss matters and these invitations were either ignored or met with sharp responses claiming force majeure leave.
The Respondent contends that pursuant to section 6 (4)(a) of the Unfair Dismissals Act 1977, the Complainant demonstrated that she was not competent to, nor capable of, performing her duties as required by her employer. The Complainant did not attend work from 13th June 2019 and did not provide the Respondent with a reason for her absence.
The Respondent contends that pursuant to section 6 (4)(b) of the Unfair Dismissals Act 1977, the Complainant's behaviour was unacceptable. The Complainant left work without permission or notice on 13th June 2019. At the outset of her absence, the Complainant failed to notify or engage with the Respondent to advise him that she was unwell. The Complainant ignored and/or refused to provide the Respondent with the password to her computer, preventing the Respondent from accessing his business files and making it impossible for the business to function in any form of productive manner. As a result, the Respondent went through the expense of engaging IT specialists to allow him access to his business files that were on the Complainant's computer. The Complainant refused to engage with Respondent to try and rectify matters. The Complainant maintained that she was on force majeure leave and expected the Respondent to pay her indefinitely for work that she was not doing.
The Respondent contends that the Complainant failed to disclose her medical condition to the Respondent. When the Complainant did engage with the Respondent it was in a hostile, abusive and demanding manner and she did not advise the Respondent of her medical condition. The Complainant also failed to advise the Respondent if and when she would be returning to work.
The Respondent is a small business owner with one employee. The Respondent attempted to engage with the Complainant on numerous occasions in an effort to ascertain why she was not appearing for work. The Respondent paid the Complainant until 31st July 2019 despite her non-attendance in work. The Respondent also paid the Complainant in respect of her annual leave entitlement.
The Respondent wrote to the Complainant requesting her to engage with him and put her fairly on notice that if she did not engage her employment would be terminated. The Complainant failed to respond or engage in any meaningful way. The Respondent acted fairly and reasonably in the circumstances and went above and beyond what would be expected of a reasonable employer.
The Respondent would contend that the relationship has irrevocably broken down and that there is a loss of trust between the parties.

Findings and Conclusions

In reaching a conclusion, the Adjudicator referenced a number of previous cases which explore the test of reasonableness in deciding whether or not a dismissal was unfair.
In this case it was found that the Respondent made considerable efforts to contact the Complainant to seek an explanation as to why she was absent from work. It was noted that there was a dispute between the parties as to whether or not the Respondent was aware that the Complainant was suffering from bipolar disorder. It was further noted that the Complainant was relying primarily on an absence dating from 2006 to support her position. The Adjudicator’s view was that, even if the Respondent was aware of the Complaint’s diagnosis in 2006, the length of time between 2006 and 2019, and the Respondent’s lack of medical expertise, meant that medical information which may have been made available in 2006 would not be relevant or determinative in 2019. Furthermore, the Complainant’s admission that the Respondent did not require medical certification for any of her absences when she was attending medical appointments relating to her bipolar disorder, lead the Adjudicator to believe that in 2019 the Respondent did not have any current knowledge of the Complainant’s condition.
It was noted that whilst there is a clear responsibility on an employer to act reasonably in all aspects of an employment relationship, there is also a corresponding obligation on an employee. In this case, the Complainant should have provided the Respondent with a reason for her absence from her workplace. Unfortunately, due her bipolar disorder, the Complainant was unable to do so.
The Adjudicator referenced that The EAT stated in Ó Loinsigh v Community Technical Aid 161:

“The responsibility [of the tribunal] is to consider against the facts of what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

The Adjudicator noted their view that it was not possible for the Respondent in this case to apply any procedures given that the Complainant, as a result of her illness, was unable to engage in any way with the Respondent when he sought to ascertain the reason for her absence and if there was a prospect of her returning to her place of employment.”
The Adjudicator noted their view, that similar to the findings in Ó Loinsigh v Community Technical Aid 161, that due to the complex nature of the Complainant’s illness she was unable to engage with the Respondent when, on numerous occasions, he sought a reason for her absence and attempted to establish if there was a prospect of her returning to her workplace.
The Adjudicator found, therefore, that in all the circumstances of this case it was reasonable for the Respondent to dismiss the Complainant.

Decision

The dismissal of the Complainant was found not to be unfair and consequently, the complaint was declared to be not well founded.

In Summary, what are the key learnings for Employers in relation to this case?

Many employers have, at some stage, been faced with the difficult scenario of an absent employee who cannot be contacted over a protracted period of time. It was noted in this Case, that whilst there is a clear responsibility on an employer to act reasonably in all aspects of an employment relationship, that there is also a corresponding obligation on an employee. The Adjudicator noted that the Respondent, on numerous occasions, sought a reason for the absence and attempted to establish if there was a prospect of a return to the workplace and that the Complainant should have provided the Respondent with a reason for her absence from her workplace.
The Adjudicator’s decision in this Case is based on the ‘test of reasonableness’ in deciding whether or not a dismissal was unfair. This again is a reminder to employers, that they must always act in a reasonable manner during the employment relationship. Furthermore, when making a decision to dismiss an employee – it is important to note that regard will be given to the reasonableness of the employer’s conduct in relation to the dismissal, should a future claim be taken.

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