EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Grainne Hoey -claimant UD1519/2013
MN118/2014
against
White Horse Insurance Ireland Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. W. O'Carroll
Mr. F. Dorgan
heard this case in Limerick on the 15th April 2015, 25th May 2015 and 26th May 2015
Representation:
_______________
Claimant: Mr. David O’Regan BL instructed by
Ms Karen Fitzgerald, O'Callaghan Daly, Solicitors,
Chandler House, Henry Street, Limerick
Respondent: Mr. Ger Connolly, Mason Hayes & Curran, Solicitors,
South Bank House, Barrow Street, Dublin 4
Summary of Evidence
Unfair dismissal was claimed by a claims manager in respect of employment between April 2008 and August 2013 on the grounds that she had been dismissed for being unfit to work due to disability and/or pregnancy and/or complaints made under employment equality legislation.
The respondent’s position was that the claimant had been absent from work from September 2012 to her termination in August 2013 because of ongoing incapacity. It was contended that the claimant had no entitlement to notice because she was unfit for work at the date of her dismissal.
On the first day of hearing by the Tribunal, the respondent’s representative said that he had not received advance copy of the claimant’s documentation and that he wanted to study it. Medical evidence was to involve medical reports. Medical witnesses would need to attend at a further hearing.
The respondent’s representative submitted that there would be a post-termination element to the case regarding fitness. There followed some discussion of medical reports and whether the case centred on medical capacity or pregnancy. It was submitted on behalf of the claimant that the claimant had been dismissed on pregnancy-related grounds. The respondent’s representative asked when a pregnant female becomes fit for work and said that he was saying the claimant had been dismissed on capacity-related grounds whereas the claimant’s representative was saying that the dismissal related to pregnancy. The respondent’s representative asked if he needed to prepare two cases but the claimant’s representative said that both cases would run beside each other and that, prima facie, this was about pregnancy and that incapacity was a “smokescreen”. The respondent’s representative said that he could speak to his client, that the claimant might say that she was dismissed due to pregnancy and that he could reflect on that.
On the grounds that the respondent was to meet a pregnancy-related claim the case was adjourned to 25 and 26 May 2015. Allied litigation under headings such as working time, payment of wages or terms of employment was not opened on 15 April 2015.
On the resumed hearing date, there were extensive discussions on admissible documentation and medical reports. The Tribunal decided that a medical report commissioned by the respondent in July 2013 would be allowed into evidence. This medical report was compiled by a Dr. S who was contracted by an Occupational Health Company; on receipt of Dr. S’s report the Occupational Health Company compiled a report and forwarded it to the respondent (without the initial report from Dr.S).
The Technical Manager gave evidence. The respondent is an Insurance Company in which the claimant worked as a claims controller from the 7th of April 2008. Her employment proceeded normally until she went on sick leave on the 7th of September 2012. Due to the ongoing nature of the claimant’s absence the respondent commissioned a medical report. Dated the 8th of November 2012 it stated that, ‘It is my opinion that (the claimant) is unfit for duties at this time….she is likely to be unfit for the foreseeable future.’
A second medical report was commissioned in December 2012 as the current staff were covering the claimant’s work and the respondent was considering hiring a temporary replacement for the claimant. This report dated the 31st of December 2012 stated that, ‘She is currently unfit for any form of work…her symptoms may resolve sufficiently to enable her to return to work within the next 2 to 3 months.’ Both of these reports outlined the claimant’s medical condition and her ongoing treatment and investigations. She had been paid sick pay up to December 2012.
The claimant’s temporary replacement was requesting some certainty in his position and a time frame for the claimant’s return to work so a third medical report was commissioned in April 2013. This report was dated the 17th of April 2013 and stated, ‘further investigation has to be put on hold due to (the claimant’s) pregnancy…this appears to be progressing well and without any complications.’ The report says that the claimant could currently return gradually to an alternative administrative role as different medical issues are outlined (due to pregnancy) and further stated, ‘she should make a good recovery and be able to return to her previous role, however this was unlikely to be achieved in the next 6 to 9 months.’ Dmw accepts that this means the claimant would return to work post maternity leave.
By letter of the 7th of May 2013 the Technical Manager (Dmw) requested a meeting with the claimant for the 10th of May. The claimant, her representative/friend, Dmw and the Personnel Manager attended the meeting. The investigations into the claimant’s illness had been put on hold due to her pregnancy, she could not be medicated for her symptoms because of her pregnancy and the claimant could not definitively tell the respondent what her condition was or when she would be able to return to work. Consequently she was issued with a Final Written Warning which stipulated that, ‘If you fail to return to work within the eight week period the company will have no alternative but to dismiss you from the company.’
The claimant appealed this decision. The General Manager (BH) heard the appeal. The appeal meeting was held on the 10th of June 2013; the decision was upheld and all up to date medical information was requested for the review meeting in July. The appeal of the final written warning was dismissed as the claimant’s absence could not go on indefinitely and she needed to know how serious the situation was.
The claimant had informed the respondent that she was pregnant and completed the necessary forms; she was due to go on maternity leave on the 28th of August 2013.
The next medical report commissioned by the respondent was dated the 17th of July 2013. The report provided by the Occupational Health Company states that, ‘the medical evidence indicates that she is not fit for work at the present time…it appears unlikely that there will be a return to work within the next 3 to 6 months.’ However the Doctor’s (Dr.S) report, which informs the Occupational Health Company’s report, states that;
‘(The claimant) has an underlying medical condition that is currently stable. She is awaiting further medical investigation following her pregnancy in order to confirm a diagnosis of (*). This condition is not work related. In my opinion, this condition would not necessarily prevent her from work duties.
She currently has a second, pregnancy related condition that is significantly restricting her activity and in my opinion, impacting on her fitness for work at this time. I expect that this condition will resolve once her baby is born.’
On the 30th of July 2013, by telephone a review meeting took place between the claimant, the Personnel Manager and the Technical Manager. This was a disciplinary meeting but the claimant was not notified of this. The respondent does not have a sick leave policy so the disciplinary procedure was invoked instead. A subsequent letter dated the 1st of August 2013 was issued to the claimant terminating her employment. The letter states that, ‘I am therefore terminating your contract of employment with (the respondent) on the grounds of ill health.’ The claimant was not given any minimum notice as she was unfit to work; if she had been given her minimum notice entitlement it would have meant a dismissal date during her maternity leave.
Dmc does not recall a lot of the claimant’s explanations/responses during the meetings. Specifically that she was off her medication due to her pregnancy but her symptoms had improved and that it was her pregnancy causing the current medical problems and she would be returning to work after her maternity leave.
BH heard the appeal of the decision to dismiss the claimant on the 8th of August. BH upheld the decision to dismiss as there was no medical evidence to support the claimant’s assertion that she was going to be fine after her maternity leave.
Dr. S gave evidence of the claimant’s pregnancy related symptoms which rendered her unfit for work. In addition, the medication the claimant had been taking to relieve her initial symptoms was not suitable during pregnancy. Prior to the claimant’s pregnancy Dr. S stated that as the claimant’s symptoms were resolving and she could have returned to work within 2-3 months. Dr. S stated that the claimant would be fit for work after her maternity leave ended.
The claimant highlighted the differences between the Occupational Health company’s report and Dr. S’s report on a number of occasions. She gave evidence of her symptoms at the time and her subsequent full recovery. The claimant made it clear at all times that her initial symptoms had been successfully treated with medication but that she had to cease the medication due to her pregnancy. She also developed additional pregnancy related symptoms which were what rendered her unfit to work. The claimant’s medical certs all stated that it was the pregnancy related condition that made her unfit to work. This had also been put in writing to the respondent and is supported by Dr. S’s report.
The claimant had to ask if the meetings were disciplinary; at no time was she ever informed as to what the process would be or that the disciplinary procedure had been invoked. The claimant requested the dismissal meeting to be adjourned pending a report from her Consultant; the respondent did not acquiesce to this request although they had specifically requested the report.
The claimant gave evidence of her loss and her successful attempts to mitigate her loss.
Determination
The Unfair Dismissals Act, 1977 states that;
‘6.—(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.
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,’
In approaching the question of fairness or otherwise of the claimant’s dismissal, the Tribunal is obliged to have regard to the statutory provisions quoted above. In particular the Tribunal is conscious of the qualification of 6(4) (a) that it must determine if the dismissal results wholly or mainly from ‘the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do’.
Evidence was heard that two medical reports communicated by the claimant’s solicitor to the respondent from the claimant’s Consultant and GP, were not taken into account by the respondent in terminating the claimant’s employment. The procedures used in dismissing the claimant were tainted by unfairness.
The High Court in Bolger and Showerings 1990 ELR184 upheld the dismissal of Bolger by reason of absence from work and stated in allowing the appeal;
“(a) for dismissal on grounds of incapacity to be deemed fair, the onus is on the employer to show that:
(i) It was the incapacity which was the reason for the dismissal
(ii) The reason was substantial
(iii) The employee received fair notice that the question of his dismissal for incapacity was being considered and
(iv) The employee was afforded an opportunity of being heard”
The respondent did not abide by it’s own disciplinary procedures and more importantly did not alert the claimant to the possibility that the question of dismissal was or would be considered at the meeting of the 30th of July 2013. The claimant was never informed that it was in effect a dismissal meeting at which her dismissal would be considered. Further no consideration was given to the treating GP’s medical certs; she was treating the claimant first hand and is therefore best placed to diagnose the claimant.
In all the circumstances the dismissal is deemed to be procedurally unfair. The Tribunal award the claimant €20,000 in compensation under the Unfair Dismissals Acts, 1977 to 2007.
The claimant is awarded €1,515.50 being the equivalent to 2 weeks’ pay in lieu of notice under Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)