EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Josephine Hennessy -appellant
UD1758/2012
against the recommendation of the Rights Commissioner in the case of:
Waterford Child Care Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Waterford on 31st July 2014
Representation:
Appellant: Mr. Tony Kelly, Unite The Union, Keyser Street, Waterford
Respondent: Mr. John Farrell, IBEC, Confederation House,
Waterford Business Park, Cork Road, Waterford
This appeal came before the Tribunal by way of an employee (the appellant) appealing against a decision of a Rights Commissioner (reference: r-119841-ud-12/MMG).
Summary of evidence:
Dismissal as a fact was not in dispute between the parties.
The respondent is a childcare centre which has 185 children attending its services and employs 60 members of staff. The appellant commenced her employment with the respondent in September 2000 and held a senior childcare position.
The appellant suffered an injury at work on 26th May 2009. The appellant was initially certified unfit for work for a period of three days. However, the appellant continued to be certified unfit for work thereafter. The appellant was referred to the company doctor in June 2009 and his report stated that she may not be able to return to her current role for at least another 4-6 weeks.
Unfortunately, the appellant’s injury did not improve and she remained absent. The manager of the childcare centre manager met with the appellant on 4th August 2009. Following this meeting the company doctor spoke with the appellant’s doctor (with the appellant’s permission). The letter received by the manager from the company doctor, stated that in essence both doctors at that time found it difficult to confirm a return to work date for the appellant.
The appellant’s absence continued for the remainder of 2009 and throughout 2010 but no medical examination by a company doctor took place in 2010. Fortunately, the appellant continued to receive full pay for a period of 104 weeks via an insurance scheme offered by the respondent.
It was the manager’s evidence that as part of her responsibilities she reviews staffing levels every six months. The appellant’s full-time senior position was covered by two part-time staff acting up to senior. The manager wrote to the appellant on 31st January 2011 advising the appellant that her position could not be held open indefinitely and that given the length of time since the appellant had last worked that she would like the appellant to indicate a return to work date.
A letter was received from a union on behalf of appellant dated 3rd February 2011 stating that the appellant was continuing to attend medical advisers and that when fit to do so; she intended to return to work. The manager sought a further update in March 2011 as to the appellant’s medical position and enquiring if she would be fit to resume her normal duties and if so, when.
The appellant replied on 2nd April 2011 stating that her condition had not improved, that she remained unfit for work and had attended a number of specialists to assess her condition. By letter dated 20th April 2011 the appellant was asked to attend the company doctor and the manager subsequently received this doctor’s report. From this report the manager believed there was no improvement and that in fact the appellant’s situation was worsening. There was no indication from this report as to when the appellant could return to work. Throughout this time the manager consulted with the Board of Directors but ultimately the decision to dismiss rested with her as manager. The appellant was issued with letter dated 17th June 2011 stating that in light of the examination by the company doctor and the subsequent medical report which stated that the appellant would not be fit to return to her position for six months/indefinitely, the appellant’s employment was being terminated. The appellant was informed that her employment would terminate with six weeks’ notice, effective 31st August 2011. The appellant stated in evidence that she was shocked when she received this letter but acknowledged that she had been warned by the letter in April that such action may be taken. The appellant felt her employer should have had some patience with her medical situation and perhaps spoken with her about the possibility of part-time work. It was the manager’s evidence that any possibility of alternative lighter duties would be very difficult given the age groups of children attending the centre. In any event this issue was not raised by the appellant or her representative.
The manager was contacted by the union on behalf of the appellant to withdraw the termination on the basis that the appellant was still attending a doctor and intended to return to work once fit to do so. However, the manager did not reverse the decision to dismiss the claimant.
The appellant did not receive the April report from the company doctor until July 2011 and by then her employment was terminated. In evidence the appellant described the doctor’s report as “too strong” as at the time she was under the care of a physiotherapist and was attending hospital. She refuted that she would have offered the opinion recorded in the report that she did not see herself returning to work that year. The appellant also stated that as the respondent would not pay for her to attend an orthopaedic specialist this resulted in the appellant being placed on a public health waiting list which caused a delay in diagnosis. The manager stated that unfortunately there was no funding available in the budget for this.
In reply to questions from the Tribunal, the manager confirmed that a report from the appellant’s orthopaedic surgeon was not requested. The manager stated that the appellant could have made representations to her any time she wished due to the “open door policy” of the centre. However, this was disputed by the appellant in evidence who stated that once she lodged a personal injuries claim she had been asked not to attend the centre. The manager stated that this was due to health and safety concerns regarding the appellant’s existing injury.
The appellant started to receive injection treatments from June 2009 to 2011. Recently, the appellant received a stronger type of injection in May 2014 which has helped with pain relief. The appellant considers herself “probably” fit to work since 2013. She still attends her doctor for ongoing pain medication but has not been certified either fit to work or unfit to work as currently she does not require medical certificates. The appellant gave evidence of loss, re-training and efforts to seek new employment. As an application by her for disability benefit was refused, the appellant has received unemployment benefit since 2012.
In reply to questions from the Tribunal, had the appellant been given an opportunity to meet with the manager prior to the dismissal, she stated that she would have requested some additional time and asked the manager to consider the possibility of part-time work for her which she felt she could have done. In addition she would have outlined that she was now under the care of an orthopaedic surgeon. The appellant waited three years for an MRI and this delayed the diagnosis by this doctor who then recommended the treatment she received in May 2014.
Determination:
It is a very regrettable situation when an employee is dismissed as a result of a prolonged illness. However, there are clearly circumstances where an employer cannot reasonably be expected to continue to employ the individual.
The facts of this case show that after a prolonged absence, the appellant was still not fit to return to work and further, that any meaningful prognosis was not possible. At no point prior to her dismissal nor, indeed, following the notice of termination of her employment, did the appellant indicate either that she was fit to return to work or would be within a reasonable period.
In considering the matter, the Tribunal did have some concerns about the lack of consultation or engagement by the respondent with the appellant prior to her dismissal. The Tribunal also felt that best practice would have dictated that a medical report would have been sought from the appellant’s orthopaedic surgeon.
However, the Tribunal is of the view that the steps taken by the respondent to establish the true medical position were reasonable and that there was no real dispute between the parties as to the reality of that position. While a higher level of consultation with the appellant would have been preferable, the Tribunal is satisfied that this would not have influenced the ultimate decision one way or the other.
The Tribunal is satisfied on her own evidence that the appellant had adequate warning that her employment was at risk.
Having considered the totality of the evidence and the reality as it pertained at the date of dismissal, the Tribunal is satisfied that the dismissal of the appellant was fair and accordingly upholds the Decision of the Rights Commissioner dated 13th November 2012 (reference: r-119841-ud-12/MMG) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)