UDD1637

This is an appeal by Ms Elvira Kravcova against a decision of Noonan Services Group Ltd to terminate her employment by way of dismissal with effect from 25 September 2015. The Complainant submitted a complaint to the Workplace Relations Commission alleging that she had been unfairly dismissed from her employment contrary to section 6 of the Unfair Dismissals Act 1977 – 2015. The Adjudication Officer decided on 5 July 2016 that the dismissal was not unfair within the meaning of the Act. The Complainant appealed against that decision to this Court. The appeal came on for hearing before the Court on 6 December 2016.

Background

The Respondent is a well-established company that provides third party services to its clients including contract cleaning services. The Complainant worked for the Respondent as a contract cleaner for some 15 years.

In 2007 the complainant first raised health issues with her employer. In 2013 the Respondent became concerned about the Complainant’s ability to perform her duties. It referred her to its occupational medical advisors. The doctor advised the Respondent that

• “While this condition does not categorically render Elvira medical unfit for any of her current work duties she is convinced that her ongoing work is aggravating her symptoms. I feel it is reasonable for Elvira to consider a number of options including either to retire from her current position and source alternative work or to take a period of time off work to attend for treatment (eg Physiotherapy etc.) … with a view to considering less physically demanding work and/or part-time working hours in the future. It is likely that if Elvira continues to perform (moderate-heavy) physically demanding work her symptoms will continue to progress and cause her further discomfort and/or restriction in her daily activities and/or impairment in her quality of life”.

• “…..I must advise you that as the Company’s Occupational Doctor has advised that you are not unfit for work then it is expected that you complete your full job specification during your rostered shifts.”

• “I wish to advise that following our referral to Dr McDermott in September 2013, he confirmed that your condition had not rendered you unfit to complete your duties as a Cleaning Operative and therefore you were advised that you were required to carry out all of your duties as per your job specification.

  ….therefore it is not appropriate for you to refuse to carry out duties as this is not a fitness issue; …”

• “The patient should not do heavy physical work, maintain a forced posture for a long period of time or do work involving rapid body position changes”

• “Ultimately I have encouraged Elvira to discuss her future work options in alliance with her treating medical Practitioners. I think it is clear that she is (at best) partially fit for the demanding tasks of a Cleaner in a Pharmaceutical Facility and she would benefit from a change of work and/or work environment. I plan to liaise with Elvira’s GP as I feel it would be beneficial for her to consider a referral to a Specialist in Ireland (as she seems to plan to live here in the longer term). I would be happy to discuss at any time.”

A further meeting with the Company took place on 23 July 2015 to discuss the medical report above.

After that meeting the Complainant wrote again seeking retirement terms.

The Respondent invited the Complainant to a meeting to

• “discuss how we move forward given the difficulties you have in completing a number of duties in relation to your role, given your health complications.”

The Complainant appealed against that decision through an internal appeals process. That appeal was unsuccessful.

The Complainant alleges that her dismissal was unfair within the meaning of the Acts.

The Law

Section six of the Act in relevant part states

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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(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,

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal.

The Respondent submits that the Complainant’s dismissal arose out of her incapacity to undertake the duties for which she was employed.

In that regard the Court heard evidence from Mr David Casey the Company executive who took the decision to dismiss the Complainant.

He told the Court that he reviewed the medical file on the Complainant and formed the view that she was increasingly incapable of undertaking the work for which she was employed. He said that he was further informed that she had been assigned lighter duties following her referral to the Company’s medical advisors in 2013. He said that though his advice was that the Complainant was not unfit for work she was not capable of undertaking the full range of duties for which she was employed and had been accommodated with lighter duties. However he said he was advised by his local supervisors that she was increasing incapable of undertaking even these duties.

He said that in the course of the meeting it became clear that the complainant wished to retire on ill health grounds but was seeking a monetary settlement in order to do so. He said that he decided that he would accommodate that by dismissing the Complainant and paying her the statutory notice entitlement of 8 weeks pay in ease of her desire to retire.

He said that before that meeting he had no intention of dismissing the Complainant. He said that the idea to dismiss her occurred to him in the course of the meeting and that he acted on it. He said that he did not notify the Complainant before the meeting that her employment was at risk. He said that he did not put the proposition to her that he intended to dismiss her. He said that he did not offer her an opportunity to reflect on that intention or to take advice on the matter or to make representations before a decision was made.

He told the Court that he made his decision on the basis of the medical evidence before him and on the basis of his advice from his local management.

Findings of the Court

The Court finds that the medical evidence available to the Respondent stated

• “… I think it is clear that she is (at best) partially fit for the demanding tasks of a Cleaner in a Pharmaceutical Facility and she would benefit from a change of work and/or work environment. I plan to liaise with Elvira’s GP as I feel it would be beneficial for her to consider a referral to a Specialist in Ireland (as she seems to plan to live here in the longer term). I would be happy to discuss at any time.”

The Court finds that the medical advice clearly states that the complainant is partially fit for the demanding tasks of a Cleaner. The Respondent took no steps to establish the extent of that capacity, the tasks she could undertake and those she could not or advise her to consult her own medical advisors in that regard.

The Court accordingly finds that the purported medical evidence on which the Respondent relied did not support its conclusions. The Court further finds that the procedure adopted by the Respondent in dealing with the Complainant was fatally flawed in that it did not afford her procedural fairness or natural justice in the manner in which it was administered. Accordingly the Court finds that the Respondent had no basis for deciding that the Complainant was unfit to perform her duties. In addition the Court finds that the procedure adopted in this case amount to an infringement of the Complainant’s rights to fair procedures and natural justice in the processing of this matter.

Accordingly the Court finds that the dismissal was not justified on either substantive or procedural grounds and was accordingly unfair.

The Complainant told the Court that she was unemployed for the period from end of September 2015 until July 2016, a period of approximately 40 weeks. During this period she says that she sought work and undertook courses to increase her preparedness for the labour market, however no evidence of job applications/interviews was provided to the Court. Thereafter she was certified unfit for work, has been claiming social welfare Disability Benefit since July 2016 and was unlikely to be able to undertake paid employment for the foreseeable future.

Accordingly the Court finds that an award of €8,160, which amounts to 20 weeks’ pay, is appropriate in this case having regard to all of the particular circumstances of this case.

Determination

The Court determines that the dismissal was unfair and upholds the appeal. The Court orders the respondent to pay the complainant compensation in the sum of €8,160 in full and final settlement of this case.

The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
8 December 2016______________________
LSDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.