ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000905

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

Date of Adjudication Hearing: 14/03/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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:

The Complainant claims that his dismissal for long term  illness and incapacity to work, was unfair.

The Complainant, through an interpreter gave the following evidence:

He started working for the Respondent, as a butcher in the boning hall, in 2005

In August 20014 he sustained a significant sport induced shoulder injury which rendered him unfit for work, as a result of which, he went on sick leave.

He was medically assessed twice by the company. In April 2015, he was found by a company appointed doctor, to be unfit for work due to his shoulder injury . The doctor recommended that he should be reviewed again in six months time. A second medical assessment was carried out on behalf of the Respondent in November 2015. The prognosis of the Complainant, at that stage, was that he was still unfit for work, that his shoulder injury was significant and his injuries might continue for a further year at least, an exact time frame was not predictable.

On 1 December 2015 the Complainant was dismissed due to congoing unfitness for work.

The Complainant stated that his injury was still significant and that he was still unfit. However he hoped that when the treatment began (and he was told that the waiting list would be a year from now)  that then he could return to work.

As he was not being paid by the Respondent during his illness, he could not understand why the Respondent could not merely keep his position open for him to return whenever his injury had healed. It did not cause them any inconvenience.

Respondent’s Submission and Presentation:

The Respondent gave the following evidence:

They accept the evidence given by the Complainant and they accept that his shoulder injury was a significant one, however this was not the responsibility of the Respondent, the injury having been sustained outside of work.

 The Respondent did all it could do, to be fair to the Complainant. They followed the terms of the employment contract, in  medically assessing the Complainant and following that advice. When the medical advice suggested a six month review, they waited six months and assessed him again. However, at this point the Complainant’s injuries were still significant, ongoing and unlikely to resolve in the near future. In fact the medical report dated 10 November 2015 opined that he would be unfit for work for “at least the next 12 months, if not longer.”

The Respondent submitted that the reason that the Complainant was dismissed was due to unfitness for work, a diagnosis that was not disagreed with by the Complainant. As such the contract was frustrated and the Respondent was entitled to dismiss him for incapability.

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.

Issues for Decision:

Was the decision to dismiss the Complainant for incapability, unfair?

Legislation

Unfair Dismissals Act 1977-2007

Decision:

Under section 6 (4) (a) of the Unfair Dismissals Act 1977 where a dismissal arises wholly or mainly from the capability of the employee for performing work of the kind that he was employed to do, such a dismissal shall not be unfair.

Procedures

I am satisfied that the procedures which led to the dismissal of the Complainant were fair.

At the hearing, I was critical of the failure by the Respondent to issue disciplinary letters in the language of the Complainant (Hungarian) but I am also satisfied that the Respondent provided the services of an interpreter at the disciplinary meetings and in this case, the wrong was righted by this. I am satisfied that the Complainant was aware from the disciplinary meeting following the first medical assessment in April 2014, that his ongoing incapacity could result in disciplinary action up to and including dismissal.  Therefore the failure to issue the disciplinary letters in Hungarian did not vitiate the Complainant’s right to fair procedures in the disciplinary process. It is significant too that the contract, which was provided in an Hungarian version, made clear that long periods of absence could result in a review of the employment of the employee in light of his inability to attend work. Therefore I am satisfied that the Complainant was on notice of the fact that his employment was in jeopardy, not through any fault of his, but as a result of his unfitness to work due to injury.

Substantive Claim

However, even if there was a flagrant breach of fair procedures which led to the dismissal, it is doubtful that that would have changed the facts of this case.

 In December 2015, when the Complainant was dismissed, because  he was unable to work, he had been unable to work at that stage for a sixteen months and his prognosis was for a possible, but not certain recovery within a further 12 months. He accepted in evidence that he was, at the date of hearing, unfit to return to work.

I am satisfied on the evidence tendered, most of which was not in dispute, that the Complainant’s contract was frustrated due to incapacity to do the work that he was employed to do. A sick man must be given the opportunity to recover but an employer must also be permitted to manage its workforce and an absence from work for sixteen months with a likely further absence of at least another year, is not an unreasonable period of time for a Respondent to determine that the contract is frustrated.

In all the circumstances of the case, I find the dismissal to be fair and the claim for relief under the Unfair Dismissals Act 1977-2007 fails.

Dated:   30 May 2016