ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002632

Complaint for Resolution:  

Date of Adjudication Hearing: 23/08/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: 

Respondent’s Submission and Presentation:

The complainant was employed as a service engineer with the company since July 2000.   His activities included calling to customers premises to sanitise the water coolers. He worked 39 hours a week on an annual fixed salary plus commissions and weekly lunch allowance.   He was dismissed effective 9 October 2015 following a prolonged period of long term absence of approximately 10+ months. Both the complainant’s and the company doctor were in agreement that his health was not improving and that he was not fit to return to work for the foreseeable future.  

The complainant was not dismissed unfairly but rather was dismissed on the grounds of incapability in accordance with Section 6 (4) of the Unfair Dismissals Acts 1977 to 2007 which states:

“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…”                                                                                                        

It is argued that in the case of Bolger v Showerings (Ire) Ltd [1990], the High Court set out the grounds which will justify dismissal in the cases of illness-related absence by an employer:

“For the employer to show that the dismissal was fair, he/she must show that:

1. It was the ill-health which was the reason for his/her dismissal;

2. That this was the substantial reason;

3. The employee received fair notice that the question of his/her dismissal for incapacity was being considered and

4. The employee was afforded an opportunity to be heard.

In this instant case, the complainant was first sent for a medical review to the company doctor on 20 January 2015, and another review on 29 June 2015. The complainant was unfit to return to his job and the company doctor gave his opinion following the June review that he doubted that the complainant would be able to perform light duties even if available.   The company discussed this with the complainant and the complainant confirmed that his own doctor’s opinion concurred with the company doctor opinion. The company also stated that they were amenable to trying to locate another job elsewhere in the company that he could perform until he was fit enough to return to his normal duties. However, this was not possible, as redundancies had been effected in administrative areas.  

Complainant’s Submission and Presentation:

The complainant’s representative made a verbal submission, summarised as follows:

The comparison between the complainant’s case and the Bolger v Showerings   High Court case is not accepted as valid. In this case, the complainant has not suffered from general ill health, but a specific back problem which results in him now not being able to do lifting. However, he could do other jobs. His evidence is that the notice of dismissal was received ‘out of the blue’. As his overall health is good, he is not disbarred from other duties. It is argued that the company did not make fair attempts to relocate the complainant and he was not given due process in that he was not warned formally that his employment was in danger of being terminated. The conversations held with him were of an informal nature. It is argued that for a dismissal to be fair, it should be conducted in a just and transparent manner which was not the case in this situation.

Decision:

The complainant, who had over 15 years service with the respondent, was dismissed due to being unfit for work due to on-going back problems. I note that the complainant had received no written warning that his employment was at risk. I note that there were a number of conversations with him about his back problem and the doctors’ opinions.   However, I accept his evidence that the dismissal letter came ‘out of the blue’.   In the Bolger v Showerings High Court case, previously quoted, the employer must show that the employee received fair notice that the question of his/her dismissal for incapacity was being considered.   In this instant case, no such notice was received. In fact I note that in July 2015, possible other roles were being discussed with him.   Whether or not these roles could have materialised, the complainant was not given written fair warning of the possibility of his employment being terminated. For this reason, I uphold his complaint that he was unfairly dismissed.   I have considered the question of redress and find that compensation is the most appropriate form of redress. I note that the complainant did not secure alternative employment. I also note that he intends to pursue a course of study. 

I find, in the circumstances that an award in the sum of €9,000 compensation should be paid to the complainant by the respondent. 

Dated:   16^th November 2016