ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001888

Complaint for Resolution:

Date of Adjudication Hearing: 02/06/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant had been on extended sick leave for about one year (since July 24^th 2014). Her condition was kept under continuing review and one such review took place in early 2015.

This was followed by a review meeting with the company initially intended for May 2015 but which eventually took place in June. At this meeting there had been a vague reference to the possibility of her employment being terminated but she did not think it was a serious risk.

However, on August 13^th she was invited to a meeting to review the situation following which she was told that her employment was being terminated as there was no reasonable prospect of her return in the foreseeable future.

She says that dismissal on the grounds of capability were unfair, harsh and extreme.

In addition the procedures followed before and in the course of the hearing ( of which some email evidence was presented) suggested that the decision to dismiss was already made prior to the formal hearing. These included such exchanges between members of the management/HR team as

“...I may give her (the complainant ) a call to let her know that termination is a possibility.”

14^th August 2015 – 13.49

“...(The complainant) does need to be clear that the meeting will result in her dismissal – I thought she was aware of this but if not please do speak to her to confirm – although we do need to say it is likely rather than a definite as she may bring up info we don’t already have.”

14^th August 2015 – 14.09

“...Could you check (the complainant’s) contract to establish what it says in relation to notice in the case of us terminating her employment please.

We don’t have to reach the decision on Thursday – we certainly need to discuss it at length, I am happy with us talking through the situation and then adjourning the meeting to reach a final decision in a couple of weeks if this makes (the complainant) more comfortable with the process – we can agree that at the beginning of the meeting.”

17^th August 2015 – 14.45

She says the prospect of her termination only became clear on August 13^th and that the previous, very general references to the possibility did not put her on sufficient notice that her position was in jeopardy.

Respondent’s Submission and Presentation:

The first review of the complainant’s condition was shortly after her sick leave began on September 24^th 2014 when she was visited at home by a representative of the respondent HR Department. She was given copies of various relevant procedures include g that related to Long Term Medical Absence and Termination on Medical Grounds. This policy states that consideration of termination of employment will not normally commence before twelve months of absence.

The following month an appointment was made for the complainant which ultimately happened on November 14^th 2014 and the report of this consultation confirmed that the complainant was unfit for work and that there was ‘no prospect of her returning to work’ for eight weeks following surgery.

The complainant submitted medical certification that she was unfit for work until February 2015.

The company checked with her again on January 16^th 2015 and advised her to stay in touch every two weeks and to continue to submit medical certificates.

In February there was further medical certification that the complainant would not be returning for at least three months. A further update on April 9^th, following surgery indicated that she would not be fit to return for ‘two to three months’ and a meeting was eventually arranged for June 17^th.

Notes of this meeting were exhibited in evidence which record the view that if there was not to be a return to work in the ‘foreseeable future’ that the company ‘may’ consider terminating the appointment.

In July the prognosis had not improved and in due course a meeting was convened for August 20^th. The notice of the meeting stated.

During this meeting we will also review your capability and potential for a return to work in the foreseeable future. It is possible that an outcome of this meeting could be termination of your employment on the grounds of capability, specifically your continued ill health

In the event this was the outcome of the meeting and the complainant was notified by letter of August 20^th outlining the reasons in some detail and notifying her of a right to appeal. She availed of her right to do so and two appeals took place but were unsuccessful.

The respondent says that it fully followed its Attendance Policy, of which the complainant was fully aware and that it monitored the situation directly with the complainant on a regular basis and acted at all times on the basis of the medical evidence.

Conclusion and Findings

I have reviewed all the relevant oral and written evidence which was submitted to me, prior to and in the course if the hearing.

Such cases as these can be difficult for both parties. On the one hand a complainant suffering the misfortune of an indisputable condition which genuinely renders her unfit for work over a protracted period, on the other a company which is seeking to bring matters to a definite conclusion in respect of the employee’s status within it.

There was clear, mutual good will between the parties and a sense of regret that matters had some to the pass they had. Indeed the respondent said it would have no difficulty re-employing the complainant when she was fit to return to work

Section 6 (4) (a) of the Unfair Dismissal Act provides:

‘Without prejudice to the generality of subsection (1) the dismissal of an employee shall be deemed, for the purpose of the act, not to be an unfair dismissal if it results wholly or mainly from on or more of the following;

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

The respondent submitted that this provision rendered it termination of the complainant a fair dismissal.

In the case of Bolger v Showerings (Ireland) Limited [1990 ELR 184] the High Court set out the key requirements to be met when an employee is being dismissed for incapacity:

• Ill health must be the reason for the dismissal;
• This must be a substantial reason;
• The employee must be notified that dismissal for incapacity is being considered; and
• The employee must be given a chance to be heard.

This addresses the twin requirements of the statute on the one hand, that the dismissal be wholly or mainly the reason for the termination and the broader requirements of fair procedure and on the other hand those of fair procedure and natural justice which provide the supporting framework for the processing of such cases.

These were further underpinned by the Labour Court in Humphries v Westwood Fitness Club (EED 037) ED/02/09.

What is required on the basis of those authorities is that the employee’s attendance record has been fairly reviewed and that she has had the opportunity to participate in that review, make representations and reply, and it requires that the employee has been given fair warnings that dismissal is a possibility where there is no likelihood of a return to work within a reasonable period.

Finally, the employee must have been given the right to appeal any decision made.

I find that the respondent met these obligations as the record above shows.

The complainant questioned whether emails quoted above which passed between members of the management team indicated prejudgement of the issue. I find that they do not. They are evidence of preparations being made for an eventuality which could be anticipated as being well within the range of possible outcomes, but not conclusively decided in advance.

I have also reviewed the appeals. At the first of these the basis for the appeal appeared to be the possibility that upcoming surgery might permit the complainant to return in January 2016. The possibility of alternative employment within the company was declined as it did not suit her family responsibilities. Strictly speaking this cannot be seen as an appeal against the decision as it is more in the nature of a request for a further extension of time.

The second appeal raised issues such as the speed with which the decision was taken following an adjournment the duration of which was in dispute; (the complainant says it was seven minutes, the respondent fifteen) and also whether the medical information was properly evaluated. The appeal adjudicator concluded that it had been and I am satisfied that he properly evaluated the case before him and reached a fair conclusion which was procedurally sound and also reasonable.

He did opine that the company could have been clearer about the fact that the complainant’s position could not be kept open ‘indefinitely’. However the evidence adduced in the hearing indicated that the complainant was sufficiently on notice of such a possibility to meet the requirements of fair procedure and so as not to taint the process fatally.

I conclude that the respondent met the various tests in Bolger and Westwood Fitness referred to above and that the dismissal was fair.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the dismissal was fair and I dismiss the complaint.

Dated:   26^th August 2016