UD991/2014, MN505/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                             CASE NO.

Claire McKevitt                                                                                                        UD991/2014                                                                                                                                      MN505/2014

Against

Bus Atha Cliatha - Dublin Bus

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:   Ms N. O'Carroll-Kelly BL

Members:     Mr W. Power

                    Mr F. Keoghan

heard this claim at Dublin on 3rd September 2015, 17th November 2015 and 18th November 2015.

Representation:

Claimant:

Mr. Colm Dunne, Bowler Geraghty & Company,

             Solicitors, 2 Lower Ormond Quay, Dublin 1

Respondent:

            Mr Hugh Hannon, CIE Solicitors, C/O Colm Costello,

             Bridgewater House, Bridgewater Quay, Islandbridge, Dublin 8

Determination:

The Tribunal have carefully considered the evidence adduced over the three day hearing, the documentation submitted together with the legal submissions.

The claimant commenced employment with the respondent as a bus driver on the 8^th September, 2007. In 2009 she began to experience difficulties in relation to her health. She had 23 periods of sick leave between July, 2009 and January, 2014. However, approximately 60 days were at the respondent’s request, due to a work related injury.

Dr. L gave extensive evidence in relation to the claimant’s multiple medical conditions. Emphasis was placed on one particular condition, i.e. vasovagal syncope. Dr. L stated that he had a responsibility not only to the claimant but to the respondent, its passengers and to the public at large. He was of the opinion that the risk of the claimant passing out at the wheel of the bus was high. The claimant’s evidence contradicts the factual premise upon which Dr. L formed his opinion. She stated that she only ever passed out once and it was early in the morning when she got out of bed. That was the one and only time she passed out. She attended at the Falls and Blackout clinic (F&B clinic) at St. James Hospital. She remained under their care from July, 2012 until February, 2014. Following a series of tests the clinic certified the claimant fit to return to work and specifically stated that she was fit to resume driving both personally and commercially. In the month just prior to this Dr. L recommended that the claimant be retired on grounds of ill health. There are issues in relation to the procedures surrounding the making of a recommendation and the final decision which shall be dealt with later in this determination. Dr. W, the appeals officer, also stated that he too was of the opinion that she was not fit to drive for the respondent and should be retired on grounds of ill health. Following the recommendation the respondent received the opinion from the F&B clinic which said opinion contradicted both Dr. L’s and Dr. W’s opinion and both Dr. L and Dr. W neglected to take the Falls & Blackout clinic up on their offer to discuss the matter with them. The F&B clinic is Ireland’s leading clinic in the area of Vasovagal Syncope and the final report was written by a consultant specialising in the area. In circumstances where there is conflicting medical opinion and in the interests of fairness a third independent medical opinion should have been requested. It was not and the opinion of an expert Consultant was simply ignored.

The original recommendation was made by Dr. L however both his and Dr. W’s name appear on the letter of recommendation. Dr. W’s is the only signature. The explanation proffered by the respondent was that the CMO’s name always appears on the letters of recommendation by virtue of the position he held in the department. Dr. W stated that he was fully aware of the original recommendation and the facts relied on by Dr. L when coming to that decision and that his name and signature appeared on the letter of recommendation. On that basis it was wholly inappropriate that he be involved in the appeal/review process. From the evidence proffered by both the claimant and the respondent it would seem that the so called ‘Appeal’ was merely a review. None of the normal procedures were followed thus denying the claimant her right to a fair and impartial appeal.

The recommendation in this case was made by the medical department and that recommendation was sent to the HR Department. It is clear from the evidence adduced that the HR Department do not review, question or analysis the recommendation they “do not interfere with the Dr.’s decision”. They merely rubber stamp it. They do so completely ignorant of the facts relied on to make the recommendation in the first place. That too is in breach of their procedures and is in breach of the principles of fairness and natural justice.

The parties both rely on the case of Bolger v Showerings (Ireland) Ltd. 1990 ELR 184. This case set out the key requirements needed in a case of dismissal on the ground of incapability namely that ill health must be the reason for the dismissal; this must be a substantial reason; the employee must have received notice that the question of dismissal for reason of incapacity was being considered; the employee must be given the opportunity of being heard. For the reasons set out above the respondent has failed to satisfy its obligations as set out in this case.

The Tribunal find that the claimant was Unfairly Dismissed and award the claimant the sum of €17,500.00 under the Unfair Dismissals Acts, 1977 to 2007.

The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn by the claimant.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)