ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001402

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

Date of Adjudication Hearing: 06/04/2016

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, 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).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation: Summary of:

A very detailed submission was presented at the hearing. In summary it stated that the Complainant, a contract cleaner, originally from Latvia, had worked for the Respondent, a Contract Cleaning and Facilities Company, for some 15 years.

In December 2007 the Complainant first raised health issues and sought a transfer to day shift working at the major Pharmaceutical Plant where she was deployed.

English language difficulties arose in relation to FDA audit requirements at the Pharma plant and this complicated any transfer to day work. Matters progressed and by July 2012 business changes / cleaning patterns/hours etc. at the request of the main client Company had been implemented.

The Complainant then applied for Redundancy in July 2012.

In 2013 the Respondent, on direct observation, became concerned about the Complainant’s health.

A report was furnished by the Complainants’ GP indicating issues with the range of duties the Complainant was able to carry out. As a result a Respondent Occupational Health Medical examination was arranged for September 2013. Again restrictions on ability to perform all duties were identified.

In September 2013 the Complainant in a meeting with the Respondent’s managers stated her inability to carry out the heavy elements of her position. Further meetings followed, again the Complainant indicated her desire to take Redundancy but only if compensated. Following a meting in December 2013 it was agreed, de facto, that the Complainant would return to her work and do what duties she could do.

Matters progressed further during 2014 /2015 with the Respondent effectively accepting the limited work duties of the Complainant. However in July 2014 a change in hours and some duties was requested by the Respondent. This was the subject of a formal Grievance by the Complainant who by letter in August 2014 stated that her medical situation was such as to render the changes in work hours completely impractical for her.

Further discussions followed and by May 2015 the Respondent carried out another Occupational Health review of the Complainant. This Medical review confirmed her stated position that she wished to retire on ill health grounds and the Physician clearly felt that her condition was such as to only make her suitable for work that required less physical demands. During this period Medical reports were also received from Physicians in Latvia which corroborated the views of the Irish Physicians.

The Respondent tried to find other suitable less physically demanding in work but was unable to do so.

In July 2015 the Complainant again wrote to the Respondent Company seeking to retire on grounds of ill health and to receive some compensation for so doing. Further meetings with the Respondent to discuss her Medical situation followed and at all meetings the Complainant agreed she was not medically fully capable of all her duties and insisted on being given medical early retirement with compensation. It became apparent that the Complainant was determined to continue at work, despite very obvious, to all even casual observers, medical issues in the belief that her case for early retirement on medal grounds would be enhanced. She was offered a work break of six months with her position guaranteed at the end but she declined

A detailed meeting took place on the 28^th September 2015. The ending of her employment on the basis that she was not medically able to carry out the full duties of her position was communicated to her.

This was appealed in September 2015 and a decision on Appeal issued in

The Dismissal decision was appealed and following an Internal Appeal the Dismissal decision was upheld. Letter of xx November refers.

In final summary the Respondent stated that over a period of some 15 years they had gone a considerable distance to facilitate the complainant, had de facto allowed her to work reduced duties for most of 2014/2015 but eventually the medical position and its attendant safety issues became such as to require them to come to a final conclusion.

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 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.

Issues for Decision:

Unfair Dismissal of the Complainant – fair procedures – whether or not alternative work possibilities were considered in the Dismissal decision consideration.

Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 – fair procedures and consideration of all pertinent facts.

Findings and conclusions:

The Complainant’s Trade Union –SIPTU referred to the 1990 Bolger v Showerings (Ireland) Ltd case -1900 ELR 184. This case emphasised the need for fair procedures and the consideration of all relevant facts.

A more recent and very significant landmark case is the Humphries v Westwood Fitness centre case of 2004. ([2004]ELR 296 & Labour Court No. EED037 ED/02/59)/ particularly where issues of alternative work may arise. The case was taken for Unfair Dismissal under the Employment Equality Acts 1998 but the relevance of the arguments are pertinent to this case.

The Labour Court clearly set out a number of pre conditions, tests almost, for these types of cases.

The relevant sections are worth quoting.

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

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submission

Labour Court No. EED037 ED/02/59 (December 18, 2003)

Interestingly the case was appealed by the Respondent to the Circuit Court which upheld the Labour Court’s decision.

([2004] E.L.R. 296)

“In respect of the employer, it has an obligation to put its concerns to the test. If the employer had taken appropriate medical advice it might have come to the view that it could have dismissed the plaintiff and that there was no way of having the plaintiff in its employment, if it had done that things might be very different today.

However, the employer did not carry out the dismissal in an appropriate manner, the employer just jumped the gun and did not follow the correct procedures. The employer has accepted that and has been open and honest about that. If the employer had taken advices it may have in fact been able to keep the plaintiff on, ultimately the problem was that the problem was that the employer went about things entirely the wrong way. In a number of respects it has fallen down in its obligations as employer to the plaintiff. If it had in fact fulfilled those obligations the plaintiff might still be in her job today.”

Arising from the principles in these quoted precedents the evidence in this case points to the following conclusions.

Firstly the Respondent over a period of years and especially in 2014 /2015 made themselves as fully aware of the Complainant’s medical situation with Occupational Health Reports from Ireland and corroborating Reports from Latvia. The Complainant was fully aware of all these inquiries and agreed with the medical outcomes.

Secondly numerous meetings took place between the Complainant, who was initially accompanied by a colleague and latterly by a SIPTU Official at which her condition and work duties were explored. This culminated in the final meeting of the 28^th September 2015.

Thirdly the question of alternative lighter and less physical duties had effectively been explored by the Respondents ‘s action of de facto allowing the Complainant to work lesser duties during most of 2014 and 2015. The Complainant was clearly part of this process.

It was clear from evidence presented and medical reports presented that the Medical situation and by extension, the capability of the Complaint to carry out her duties was progressively deteriorating. It was clear that by late 2015 the Medical situation was such as to bring into question the continued employment of the Complainant.

Fourthly the Complainant consistently emphasised her medical limitations and repeatedly demanded Medical Ill Health Early retirement. The Respondent organisation did not have any such facility.

Fifthly the Complainant, despite being in Ireland for some 15 years, had a limited grasp of English although she was always facilitated in meetings by being accompanied by a more linguistically adept colleague. Put bluntly she appeared not to have grasped that by her repeated medical protestations and her insistence on Ill Health retirements she was effectively almost talking her self out of her employment. It appeared that she may have had a belief that Government Social Welfare Schemes for Ill health Early Retirements with Compensation that may apply in her home country applied in this jurisdiction.

If any criticism applies to the Respondent it is that they may have not grasped the full mind set of the Complainant and her full understanding or lack of same , despite being represented, of the full Employment consequences of her actions and the likely outcomes of the various Company meetings with her.

Otherwise all good procedures were followed, numerous meetings took place, medical reports were obtained and carefully considered, a period of almost two years “light duties” was de facto agreed to by the Respondent, representation was allowed, full documentation provided at all times and a final internal Appeal provided.

Taking all the above factors into account and having reviewed all the extensive written and oral evidence presented I have to find the claim for Unfair Dismissal not well founded.

The claim is dismissed.

Dated:   5^th July 2016