UDD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032998 (CA-00051382-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 31 December 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 October 2024.

The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Louisa Higgins (the Appellant) of a decision of an Adjudication Officer given in her complaint under the Unfair Dismissals Act, 1977 (the Act) against her former employer Analog Devices International (the Respondent).

The within complaint was made to the Workplace Relations Commission on 27th June 2022. She alleges that she was unfairly dismissed on 21st March 2022.

Summary submission and evidence of the Respondent

The Respondent’s facility operates on a 24 Hour, seven day per week basis and accordingly has a need to engage employees on shift patterns that include working unsociable hours in the evening, at night and at weekends.

The Appellant commenced employment in August 2005 as a Manufacturing Team Member. As part of her role, she was required to work a five-shift cycle which includes day shifts, evening shifts and night shifts, midweek and at weekends and 12-hour shift patterns. She worked the five-cycle shift since the commencement of her employment in August 2005.

The Appellant fell ill and was absent from her employment as a result from 4th November 2014 until 29th August 2015. She was certified as unfit for work until 4th February 2015 when she attended Occupational Health who deemed that she was unfit for night work for at least 12 months but that she would be fit to return to work on “days” if she could be accommodated. The Respondent was unable to accommodate that request.

After she had exhausted the sick-pay scheme she returned to work in August 2015 working the normal shift pattern having been certified as fit to do so. On 29th June 2016, the Appellant attended an Occupational Health Physician who deemed her fit to continue working normal duties. She attended that practitioner again on 7th September 2016 who certified her at that time fit to continue working normal duties.

On 25th January 2017 she was again seen by this physician who certified her fit to continue normal working duties. A similar certification was given on 10th May 2017. On 19th May 2017 the Appellant’s solicitor wrote to the Respondent requesting proposals as to how the Respondent would commit to having the Appellant put on a day shift. On 14th June 2017, the occupational physician deemed her not suitable for night work.

On 30th June the Appellant’s solicitor wrote again to the Respondent stating that it was the Respondent’s duty to make reasonable accommodation for the Appellant and therefore to give her a day job. On 3rd July 2017 the Respondent wrote to the Appellant to invite her to a meeting to discuss then her inability to work night-shift. The Respondent met the Appellant on 5th July 2017.

Following that meeting the Respondent wrote to the Appellant on 7th July 2017 referring to a position in Quality Assurance on days in which the Appellant had expressed an interest, and assuring her that, although applications had closed, her application would be accepted. She did not apply for that role.

On 7th July 2017 the Respondent wrote to the Appellant stating that the Respondent would make a reasonable accommodation for her by arranging that she would work three 12 hours shifts on days on Friday, Saturday and Sunday and make up another three hours during the week. The Appellant’s solicitor responded to that letter on 13th July 2017 stating that the offer of work on days at the weekend was completely unacceptable although no medical basis was proffered for such an assertion.

The Respondent arranged another medical assessment for the Appellant. The Occupational Health Physician, following a consultation on 23rd August 2017, deemed that the Appellant was fit for days but unfit for her normal 5 cycle shift.

The Respondent met with the Appellant in early September 2017 to discuss the matter and at that time informed the Appellant that it was not sustainable from an operational, personnel management and precedent setting perspective that she continue working only the day shifts of her 5 cycle shift as she was at that time. She was informed that it was not necessary for her to work the day shifts and that the Respondent would continue to pay her sick pay in accordance with its policy. The Appellant queried why she was being required to take sick leave when she was not sick and was willing to work shifts on days.

The Appellant provided the Respondent with a medical report which said that day work at the weekend was not suitable. On 7th November 2017 the Appellant wrote to the Respondent to say that she was 100% fit to work on day shifts except not at weekends.

Considerable interaction between the Appellant and the Respondent ensued over the next period and the Appellant remained absent from employment. Ultimately, a medical report was received from an independent occupation health physician in June 2018 which asserted that the Appellant was (a) unable to perform a 5 cycle shift rota, (b) work night shifts, (c) work evening shifts, (d) work 12 hour shifts day or night, (e) spend more than 25% of a typical shift standing, (f) lift more than 5kg in weight or (g) work as a lone worker. Further medical assessments from the same physician were received following assessments carried out in August 2020 and May 2021 and neither report deviated in material terms from then June 2018 report.

In June 2021 the Respondent wrote to the Appellant setting out comprehensively the consideration given by the Respondent to accommodating the Appellant within the confines set out by medical reports. She was informed that, despite extensive efforts, it appeared at that time that it would not be possible for the Appellant to return to the role she had occupied. A review meeting was arranged and took place on 23rd July 2021.

Subsequently, following a review of the matter by the Respondent’s Environmental Health and Safety Manager, the Respondent concluded that it would not be possible for the Appellant to return to her role without deviating substantially from the medical guidance. Neither was the Respondent able to identify any suitable alternative roles for which she was qualified on an eight-hour shift with a starting time ideally between 8.00am and 9.00am as per the most recent medical report of 14th May 2021.

The Respondent wrote to the Appellant on 30th September 2021 outlining that its then current opinion was that the Appellant was not fit for work by reason of her ongoing incapability and that there was no reasonable prospect of the situation changing. The Appellant was invited to submit any comments she might have, in particular with regard to the report of the Environmental Health and Safety Manager which had been provided to her. She was reminded that a possible outcome of the review was that her employment would be terminated on capability grounds. No substantive response was received from the Appellant.

On 13th January 2022, the Respondent advised the Appellant that a decision had been made regarding her continued employment and proposed a meeting with her on 17th January 2022. In the absence of a response from the Appellant, she was written to on 17th January notifying her that the Respondent had terminated her employment. In that communication the Respondent set out that she was not fit for work by reason of her incapability, and that there was no reasonable prospect of that situation changing. She was advised that alternative roles had been explored and that no suitable roles were available which would meet the medical guidance received in respect of the Appellant.

The Appellant’s employment terminated on 14th March 2022. She was advised of her right to appeal. She made an appeal but requested that her appeal be conducted by reference to the documentation between her and the Respondent rather than a meeting. The Appellant’s appeal was not upheld.

Her dismissal resulted wholly from her incapability to perform the work she was employed to do in circumstance where she was continuously absent from work from August 2017 with medical assessments determining that she was not capable of meeting the requirements of her role. The legal test in respect of capability arising from ill health was set out by Lardner J. in Bolger v Showerings (Ireland ) Limited [1990]c ELR 184 where it was held

“In this case it was the ill health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

1. It was the ill health which was the reason for the dismissal;

2. This was a substantial reason.”

The Appellant was dismissed only after the Respondent had exhausted all potential avenues to retain her in her employment. The Appellant’s ill health and consequent incapacity to perform her role was the sole reason for her dismissal. She received notice from June 2021 that the question of her dismissal for incapacity was being considered by the Respondent and she was afforded the opportunity of being heard at every stage of the process. The Respondent met all of the criteria set out in the Bolger case in reaching the conclusion that the Appellant should be dismissed on the ground that she was incapable of performing the work she was employed to do. Her dismissal was, in accordance with Section 6(4) of the Act, not unfair in that it resulted “wholly or mainly from … the capability … of the employee for performing work of the kind he was employed to do”

Summary submission of the Appellant

The Appellant made a very lengthy and detailed written narrative submission to the Court setting out the details of a range of events and engagements over a period of a number of years prior to her dismissal.

The Appellant was unfairly dismissed by the Respondent. Her dismissal on grounds of incapacity was not well founded and was unfair on the basis that, if the Respondent had reasonably accommodated her disability, she would have had the capacity to continue in her employment and reasonably carry out in whole or in large part her duties. In particular, while it was accepted that she was incapable of carrying out her role as a Manufacturing Team Member on a five-cycle rotating shift basis she was capable, within certain parameters, of working on day shifts other than at weekends. The failure of the Respondent to provide her with work within relevant medically advised parameters amounted to a failure to reasonably accommodate her in her wish to continue in her orle.

The Appellant commenced her employment in August 2005 as a manufacturing team member on shift work called a five-cycle swing shift pattern which included a rotating shift pattern of 12-hour days, nights and some weekends.

From November 2014 to August 2015 she was absent from work due to illness. It was confirmed by her GP that the five cycle swing shift pattern of her employment involving night shift work was adversely affecting her health. She also attended the company doctor who deemed her unfit for night work for at least 12 months but that she would be fit to return to days if she could be accommodated.

While out of work, the Appellant sought to have her hours of work altered, essentially to work day shifts, in order to alleviate her illness. She applied for three day jobs that came available in March 2015 through the normal recruitment and selection process but did not secure any of these positions.

Between 2018 and 2020 the Appellant repeatedly engaged with an Occupational Health professional and other medical professionals. Whereas the independent Occupational Health Physician with whom the Appellant engaged across that period reported certain restrictions as regards the Appellant’s capacity to undertake the role of a Manufacturing Team Member on a five cycle shift, it was clear that the advice was that she could carry out a role on day shifts.

The Appellant strongly rejected that her capacity to work in certain environments or alone was affected by a particular condition from which she suffered, and which could, in certain circumstances, cause her to faint. She rejected the Respondents’ assessment of the risks associated with the existence of this long-term condition which she had successfully managed over a period of many years.

The Respondent withheld health and safety policy documents from the Appellant which limited her ability to comment on a risk assessment carried out by the Respondent’s Environmental Health and Safety Manager in 2021. She was never provided with an opportunity to engage directly with the Environmental Health and Safety Manager.

The Law

Section 6 of the Act makes provision as follows :

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2)…….

(3)…….

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Discussion

The question that this Court needs to consider is whether the Complainant’s dismissal resulted wholly or mainly from her capability to perform the work she was employed to do.  The requirements in respect of capability arising from ill health were set out by Lardner J. in Bolger v Showerings (Ireland) Ltd  [1990] E.L.R. 184 as follows:

“In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

(1) It was the ill-health which was the reason for his dismissal;

(2) That this was substantial reason;

(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4) That the employee was afforded an opportunity of being heard.”

In the within appeal there is no dispute between the parties that the Appellant was engaged as a Manufacturing Team Member and that this role is exclusively carried out as a rotating five shift position across seven days of the week. Similarly, it is common case that the Appellant was incapable of carrying out this role on a rotating five shift cycle from 14th June 2017 until the date of her dismissal on 14th March 2022.

It is common case also that the only reason set out to the Appellant for her dismissal by the Respondent was that she was incapable of carrying out the work of the kind which she was employed by the Respondent to do, i.e. as a Manufacturing Team Member working on a five-shift rotating cycle.

The Court is satisfied that over the period from February 2015 to May 2021 the Appellant attended an Occupational Health Physician on eleven occasions. On each occasion from June 2017 onwards the medical assessment was to the effect that the Appellant was incapable for performing her role as a Manufacturing Team Member on a five-cycle rotating shift. It is common case that upon the termination of her employment in March 2022, no reason other than her incapability for performing work of the kind which she was employed by the employer to do was put forward by the Respondent as being the reason for dismissal.

Following extensive correspondence over an extended period, the Appellant was invited to attend a review meeting such that all options in relation to her continuing employment could be discussed. That meeting took place on 23rd July 2021 and the Appellant was accompanied by a family member.

Having received a final Occupational Health assessment in 2021 and a report from the Respondent’s Environmental Health and Safety Manager in September 2021, the Respondent, by letter dated 30th September 2021, invited the Appellant to provide any comments she might have in relation to that report. She was advised in that invitation that a final decision in the matter could include a decision to terminate her employment by reason of incapability. At that point the Appellant was on notice that the question of her dismissal for incapacity was being considered. The Appellant did not provide a substantive response to the report and instead raised issues as regards what she contended to be a lack of access to the Health and Safety documentation in relation to the employment.

The Respondent advised the Appellant by e-mail dated 13th January 2022 that a decision had been made regarding her continued employment and proposed a meeting on 17th January 2022. In the absence of a response to that invitation, the Respondent advised the Appellant by letter dated 17th January 2022 that the Respondent had decided to terminate her employment. She was provided with the details of an opportunity to appeal that decision which she availed of, albeit without attending a further meeting. Her appeal was not successful.

The Court concludes, having regard to the operation of the law at Section 6 of the Act and the relevant case law set out above, that the dismissal of the Appellant resulted wholly or mainly from her incapability for performing work of the kind which she was employed by the employer to do and that, consequently, having regard to the Act at Section 6(4)(a), the dismissal was not unfair

Decision

The Court decides, having regard to Section 6(4)(a) of the Act that the dismissal of the Appellant was not unfair.

The within appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
8th January 2025	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.