UDD169

In a recommendation dated 14^thDecember 2015 and bearing the reference number r-152552 –ud-14/JW the Rights Commissioner / Adjudication Officer found that the Appellant had been unfairly dismissed. The Rights Commissioner / Adjudication Officer awarded the Appellant compensation in the sum of €48,000 for being unfairly dismissed.

Written submissions were received from both parties and the Court heard the appeal on 22nd April 2016.

Background

The Appellant is the second largest supplier of architectural coatings and sundry products in Europe. The Respondent was employed by the Appellant as a merchandising manager from 12^thJune 2000 until her dismissal in October 2014. The grounds relied upon to justify her dismissal was that the Respondent was unable to perform her role.

Dismissal as a fact

The fact of dismissal is not in dispute and the Appellant carries the onus of showing that, having regard to all of the circumstances, there were substantial grounds justifying the dismissal.

Position of the Parties

The Appellant

The Appellant contends that it was a key part of the Respondent’s role that she prepared stock, lifted same from delivery vans and placed it on the shelves in customer’s shops.

The Appellant states that in 2013 it secured a new contract with the Woodies and that as a result a re-structuring of the Respondent’s role took place. That re-structuring was designed by the Respondent and other management of the Appellant. The net effect of the re-structuring decided in mid-2013 was that the Respondent was solely responsible for particular customer stores while continuing to retain management functions and responsibilities.

A key element of the supply of product to Woodies was the supply of paint in 10 and 15 litre cans.

The Appellant states that in January 2014 it became aware that the re-structuring decided in mid-2013 had not been implemented and that the operation had functioned in a manner decided by the Respondent during the period since June 2013.

The Appellant states that in January 2014 the Respondent confirmed that she had a difficulty lifting paint cans of 10 and 15 litres. The Appellant confirmed to the Court that the re-structuring decided in mid-2013 required the Respondent to lift cans of this size.

The Appellant states that a meeting with the Respondent and her Trade Union representative was held on 6^thFebruary 2014 and that the Respondent’s issues were discussed in detail at that meeting. The Respondent was asked in February 2014 for permission to have a view on this matter shared by the Respondent’s General Practitioner. The Respondent agreed to such information being forwarded by her GP but such information was not ultimately received by the Respondent until a letter was received dated 7^thMay 2014. That letter, when received, stated that the Respondent should not lift weights of 10 or 15 kilogrammes on a regular basis.

The Appellant sent the Respondent to be ‘medically checked’ in April 2014. That medical assessment, carried out by a physiotherapist, confirmed that the Respondent should not lift weights greater than 5 litres.

The Appellant states that a ‘capability meeting’ was held with the Respondent and her Trade Union representative on 8^thJuly 2014 as part of a process to review the Respondent’s capability to perform her role. The Appellant states that, at that meeting, the Respondent was advised that if she was unable to perform her role then the Appellant may have no option but to terminate her employment.

The Appellant states that following that meeting it offered the Respondent an opportunity to take up another role with the Appellant company on a trial basis where no lifting would be involved. The Appellant stated that this opportunity was refused by the Appellant.

The Appellant states that a further meeting took place on 30^thJuly 2014 with the Respondent and her Trade Union representative at which it was outlined to the Respondent that the Appellant had no option but to terminate her contract. The Appellant wrote to the Respondent on 1^stAugust 2014 confirming that her employment was terminated on grounds of incapability due to ill health.

The Respondent appealed the decision to terminate her employment and an appeal hearing was held on 12^thSeptember 2014. The Appellant stated to the Court that it had written to the Respondent by letter dated 8^thOctober 2014 confirming that her appeal had not been successful.

The Appellant confirmed to the Court that it was a key part of the Respondent’s role to lift 10 and 15 litre paint cans and that it had at no time received confirmation that the Respondent was in a position to lift such weights as a regular part of her work.

The Respondent

The Respondent stated that she had been employed as a merchandising manager and had worked in that capacity since 2000. She stated that it was not a part of her work to regularly lift weights and that she had not, prior to 2014, been required to lift weights of 10 or 15 litre cans of paint.

The Respondent confirmed that a re-structuring took place in mid-2013 which involved the re-organisation of merchandising work in a manner which would have required her to lift weights of 10 and 15 litres of paint. She confirmed that this planned re-organisation had not taken place in mid-2013 and that instead she had put in place arrangements where the lifting of such weights was carried out by other merchandising staff.

The Respondent stated that the she had put such arrangements in place after mid-2013 because the Appellant had advised her that she should resolve any issues with lifting weights within the team.

The Respondent stated that her role had been re-organised in January 2014 and as a result she had sole responsibility for certain stores with the consequent liability to lift weights of 10 and 15 litre cans of paint. She stated that she had formally advised the Appellant in January 2014 that she did not feel the weights she was now being asked to lift were appropriate.

The Respondent confirmed that she attended a meeting with the Respondent on 6^thFebruary 2014.

The Respondent confirmed that she had given the Appellant permission to make contact with her GP for a medical report. She also confirmed that she attended a physiotherapist appointed by the Appellant on 29^thApril 2014. After that appointment she was supplied with two reports from the physiotherapist she had attended, one hand written and one typed. The Respondent contended that these reports differed.

The Respondent attended a ‘capability meeting’ with the Respondent on 8^thJuly 2014. At that meeting she confirmed that she was offered a trial in an alternative role with the company. The Respondent confirmed that she ultimately turned this offer down given the distance she would be required to travel, the removal of her company vehicle, the reduced salary attaching to the alternative role and the fact as she saw it that she would continue to be required to lift the disputed weights.

The Respondent stated that she attended a further ‘capability meeting’ on 30^thJuly 2014. That meeting was adjourned at a point for a period of 29 minutes following which adjournment the Appellant decided to summarily dismiss the Respondent. She subsequently received a letter dated 1^stAugust 2015 which confirmed her dismissal on grounds of incapability due to ill health.

The Respondent appealed the decision to dismiss her and attended an appeal hearing on 12^thSeptember. She stated that she never received any communication as a regards an outcome to this appeal hearing until the Appellant’s response to a request made under Data Protection Legislation which resulted in a file of papers being forwarded to her in June 2015.

Discussion

The parties both confirmed to the Court at its hearing that a re-structuring of the merchandising arrangements within the Appellant company was required following the securing of the Woodies contract. The Respondent confirmed that she had been part of the management team which devised the ‘plan’ for merchandising as it would apply after mid-2013. That re-structuring as planned for implementation after mid-2013 involved the Respondent taking sole responsibility for some customer stores with the consequent requirement to lift certain weights.

The Act at Section 6(4) in relevant part states

• “(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,”

The Appellant asserts that the re-structuring of its merchandising operation was an essential outcome of its business situation and in particular its success in securing a new contract in 2013 with Woodies.

The parties have accepted before the Court that the design of a re-structured merchandising operation to have effect from mid-2013 was carried out by a team of managers including the Respondent. That re-designed operation did not come in to full operation until January 2014 at which point the Respondent’s difficulty in lifting the weights involved became a significant issue.

It is not for the Court to take a view as to the appropriate arrangement to apply in the Appellant company as regards merchandising of its products. The Court however notes that both parties agreed in evidence to the Court that a re-structuring was necessary in mid-2013 to take account of business circumstances and in particular the securing of the Woodies contract.

It is clear that the Appellant took steps in February 2014 to engage with the Respondent to establish her capacity to carry out the role of merchandising manager as then constituted. The Respondent asserted that she could not carry out the role as then constituted and that assertion was ultimately supported by a report from her GP and from a physiotherapist engaged by the Appellant.

The Appellant convened a meeting on 8^thJuly at which the matter was considered and discussion took place as regards a potential re-assignment of the Respondent. That offer of re-assignment, initially on a trial basis, was clarified to the Respondent after the meeting of the 8^thJuly 2014. That re-assignment when clarified was unacceptable to the Respondent for stated reasons.

The Appellant has clarified to the Court that no other opportunities for re-assignment of the Respondent existed in the Appellant company in July 2014.

A further ‘capability meeting’ took place between the Appellant, the Respondent and her Trade Union representative on 30^thJuly 2014 at which the decision to dismiss the Respondent was taken.

An appeal hearing arising from the Respondent’s appeal of the decision taken on 30^thJuly 2014 to dismiss her took place on 12^thSeptember 2014. The representative of the Appellant who conducted that appeal hearing confirmed to the Court in evidence that he did not review the question of re-assignment of the Respondent as part of the conduct of the appeal. The decision to dismiss the Respondent was affirmed in the appeal.

The Court was advised by the Respondent that a feature of the meeting on 8^thJuly 2014 was the offer of an opportunity to take up an alternative assignment within the Appellant company. The Appellant confirmed that this meeting was the meeting where the Appellant advised the Respondent that the Appellant may have no option but to terminate her employment. The Appellant has stated to the Court that the meeting of 30^thJuly 2014 was a ‘follow up’ meeting to the meeting of 8^thJuly.

On the basis of the evidence presented to the Court and the submissions made it is clear that the process by which the Appellant reached the decision to dismiss included consideration of re-assignment of the Respondent. It is the Court’s view that an appeal process which gave no consideration to this aspect of the decision to dismiss the Respondent was flawed in that it did not consider the entirety of the factors which contributed to a decision to dismiss.

Decision

The Court determines that the appeal process which confirmed the dismissal of the Respondent was flawed and as a consequence finds, by reference to Section 6(7)(a) of the Act, that the dismissal of the Respondent was unfair. Having regard to all of the circumstances of this case the Court awards the Respondent compensation under the Act of €40,000

The Recommendation of the Rights Commissioner / Adjudication Officer is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Foley
10th May 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.