ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003686

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/10/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

As an opening point, it was agreed that the claim was being litigated under the Employment Equality Act and the Unfair Dismissals claim was withdrawn.

1:        Summary of Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Presentation:

A detailed written submission supported by extensive oral testimony was presented by the Respondent. The key points of which were

The Complainant had commenced employment as a Sales Assistant in November 2009 becoming permanent in July 2010. She was injured in a RTA on the 20^th February 2014 and had not returned to work until the date of her dismissal on the 13^th May 2016.

The Respondent has a well-developed Long Term Absence procedure and a numerous series of meetings took place with the Complainant during 2014, 2015 and 2016. (Detailed in evidence)

In the later series of meetings, the Respondent requested from the Complainant details of her medical condition and her likely return to work date. Full communications took place at all times.

In summary, it proved impossible to satisfactorily ascertain a date for return and the Complainant was dismissed. An Appeal was offered and took place. The Appeal confirmed the Dismissal decision.

Section 16(1)(B) of the Employment Equality Act was cited by the Respondent

6. —(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

The Respondent in conclusion submitted that it took an adequate assessment of the Complainant’s position and took the view that no amount of reasonable accommodation could enable the Complainant to return to work given the serious and highly limiting nature of the Claimant’s injuries.

3:        Decision:

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

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

4:        Issues for Decision:

As the claim is being taken under the Employment Equality Acts the following key questions arise

• Has the Complainant a qualifying Disability as required by the Act?

• If so

• What steps or inquiries were undertaken by the Responded is regard to establishing the exact medical or other status of the Complainant prior to the decision to Dismiss? Were the necessary consultation steps /involvement of the Complainant as required by previous case law carried out?

• What efforts took place regarding investigating and or providing Reasonable Accommodation?

• Under Section 16 of the Act what rebuttal defence has the Respondent employer in this context?

• In this case, how did the actions or non-actions of the Complainant at key stages have a major bearing on events?

• Did Natural Justice apply at all times? SI 146 of 2000 is the guiding touchstone here.

• Taking all the above into consideration did a Discriminatory Dismissal take place?

5:        Legislation involved and requirements of legislation:

Employment Equality Act 1998. S.I. 146 / 2000. Code of Practice on Grievance and Disciplinary Procedures

6:        Decision:

In the order of the questions set out above

6: 1         Has the Complainant a qualifying Disability as required by the Act?

The Complainant had a major Road Traffic Accident on the 2Oth February 2014. The medical evidence presented clearly indicated that she was disabled certainly for the period from February 2014 to the date of dismissal.

The Complainant’s legal representative drew attention to the case of Customer Perception Limited v Leydon EED0317 where the Labour Court stated that “A temporary malfunction comes within the statutory definition”

At the hearing the question of a disability was not seriously contested and I took the view that the Complainant was qualified to proceed.

6:2 Inquiries carried out by Respondent Complainant’s status/condition.

Beginning on 20^th May 2014 the Respondent had in the period to the 15^th April 2016 approximately 13 meetings with the Complainant. Throughout the series of meetings the Complainant had consistently maintained that she was unfit for work and could not provide a return to work date.

Minutes were presented in evidence of these meetings. In the latter (2015) series of meetings the Complainant was asked to discuss a return to work date with her doctor and bring all medical evidence to the meetings. As an example the letter, one of a series, from the Respondent of the 6^th November 2015 refers. The letter of the 11^th April 2016 inviting the Complainant to a meeting on the 15^th April 2016 from the Respondent to the Complainant reiterated this request to “bring along any medical reports or any information you would like me to consider on the day”.

Representation rights were offered on the day of the meeting but were declined by the Complainant. The issue of the Complainant’s continued employment, as a subject for discussion, was well flagged in advance of this meeting – it had been mentioned in numerous previous meetings. Minutes of meetings and correspondence all supplied in evidence with the responsible Manager giving oral evidence.

At the meeting on the 15^th April 2016 no new or additional Medical information was provided. The Complainant maintained that she was unfit and could not offer a firm return date. The Respondent then informed the Complainant of their decision to dismiss her on the basis that there was no indication of any return to work date.

Later that day but post the meeting a Medical Cert was supplied from the Complainant's GP stating that the Complainant was “un fit for the foreseeable future” Medical Cert of the 18^th April 2016 from Dr. Conway.

I considered the tests applied in the Humphries v Westwood Fitness Club (2004 ELR296) and I quote the Labour Court in this case

“The nature and extent of the inquiries which the employer should make will depend on the circumstances of each case. At a minimum however, an employer should ensure that he/she is in full possession of all material facts concerning he employee’s condition, and that the employee is given fair notice that the question of his/her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision”

An additional matter of considerable concern was the fact that the Complainant had attended medical Specialists in Kilkenny (5^th Jan 2016) and Waterford (Jan 2015 and 9^th March 2016) but had not offered any of these specialist reports to the Respondent. At the hearing this issue, effectively of non-disclosure, was never satisfactorily explained by the Complainant or her Representative.

In conclusion and following the Westwood case cited above in relation to Information /Consultation I found that he Respondent had more than adequately discharged their consultation and information gathering responsibilities.

6:3          What efforts took place regarding investigating and or providing Reasonable Accommodation?

The Respondent did not consider Reasonable Accommodation as up to the date of the dismissal there was never any suggestion of even a partial return to work by the Complainant that would have required this consideration to be made. The GP cert of the evening of the 18^th April referred to an absence for the “foreseeable future” with no reference to a return to even partial duties.

6:4          Under Section 16 of the Act what rebuttal defence has the Respondent employer?

Did not arise as Reasonable Accommodation never arose as a concept. The Complainant never indicated a possibility of a return to work even in a limited capacity.

6:5          In this case how did the actions or non-actions of the Complainant at key stages have a major bearing on events?

The non-disclosure of the Consultant Medical reports, referred to above, was not indicative of a full openness to the legitimate inquiries of the Respondent. It was a decision that I could not get an understanding of.

6:6          Did Natural Justice apply at all times? SI 146 of 2000 is the guiding touchstone here.

A comprehensive series of meetings took place – the crucial meetings were informed by letters of invitation, the fact that the ending of the contract was on the agenda was stated in advance. At the crucial meeting on the 15^th April the issue of Representation was raised by the Respondent and declined by the Complainant.

An Appeal was offered and accepted – the independence of the Senior Manager carrying out he Appeal was not questioned at the hearing.

6:7          Taking all the above into consideration did a Discriminatory Dismissal take place?

The Labour Court in A Health and Fitness Club v a Worker EED037 which was upheld on appeal to the Circuit Court effectively set out the defence allowed by Section 16(1)(b) of the Act which effectively was

“If it can be shown that the employer formed the bone fide belief that the Complainant is not fully capable within the meaning of the Section of performing duties for which they are employed”

The Court outlined several tests which I referred to above namely full information, consultation and involvement of the employee in the final decision.

In conclusion and having considered all the evidence both written and oral witness evidence I was happy that he Respondent more than adequately discharged all the requirements of this defence.

Accordingly, the claim for Discriminatory Dismissal under the Employment Equality Act 1998 is dismissed.

Dated:   8^th December 2016