Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00002573-001

12/02/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00002573-002

12/02/2016

On 23^rd September the Complainant went out sick with “Viral Infection and Migraine” but it progressed in November 2013 to Tachycardia.

She was written to on 10^th October 2013 and invited to a meeting on 15^th October 2013. She expected to return the next week. She didn’t return. She was invited to another meeting on 13^th January 2014. She advised that she had a hospital appointment in March and she was minding grandkids. She was invited to another meeting on 11^th February 2014. She was asked to provide the medical report from the hospital appointment on 13^th March stating when she could return to work even on reduced hours. She met the employer again on 4^th April 2014 and she advised that her hospital appointment was rescheduled. She was asked for the doctor’s report on when she would be fit to return to work. She was offered alternative working hours and days. She was advised that her level of absence could not be sustained. She met with the Personnel Manager on 18^th April 2014 and she was offered a change of position to the checkouts, which was considered light duties. She declined as she suffered from migraines. She met with the company on 19^th May and she was again given light duties but she declined. She was advised that she would be sent to the company doctor in future. She met with the company on 23^rd June and she advised that she was due to attend a cardiologist on 30^th July 2014. She was again offered light duties, which was declined. She was invited to a meeting on 5^th August 2014 but it was rescheduled to 15^th September 2014. She advised at that meeting that she expected to return to work on 24^th September 2014. She didn’t return. She was invited to a meeting on 16^th October rescheduled to 31^st. She advised that she was returning to the Consultant and would not be available to work for six months. She was asked to consult wither doctor about returning on a phased basis. She was also advised that the company would have to consider extending her long term illness or going another route. She was invited to a meeting on 17^th November 2014 and offered representation. She advised the company that she was due to meet her doctor on 3^rd December and she would update them. She was invited to a meeting on 15th December as she had not appraised them on her doctor’s visit. She was referred to the company doctor on 17^th February 2015. The doctor confirmed that the symptoms appear to be chronic and she may never return to work. She was invited to a meeting on 6^th March and she was given a copy of the medical report. She was asked to bring any relevant medical information. She did not bring any information. She was advised that the company could not keep her job open indefinitely. She was reminded that she had been offered accommodation but she had to decline. She met with the company on 8^th June and advised that she may never return to work. She was again offered accommodation but she declined. She was also reminded that they could not keep her job open indefinitely. She was referred to the company doctor on 31^st July 2015. Again the company doctor found that it was unlikely that she would ever return to work. A meeting took place on 7^th September. She was advised of her right to representation and the implications of not attending the meeting. She had no alternative medical report and advised that the company was going to review her position and that her job could not be kept open. On 4^th January 2016 she was written to and advised that her employment would cease on 15^th February 2016. She was given the right of appeal and the option to reapply in the future if she recovered. The Complainant appealed through her solicitor. The company advised her of her right of representation by a colleague or union representative. An appeal hearing was scheduled but she did not attend and did not advise that she wouldn’t attend.

It is the Respondent’s position that she was offered a significant period of time when on sick leave to return. Her employment was terminated after 27 months of absence. She was given considerable time to recover and also was offered accommodation of light duties and reduced hours which she declined. The doctor’s reports confirmed that her illness was chronic. The Respondent has met with the three requirements as set out in the Bolger v Showerings case. She was dealt with in a fair, reasonable, open and transparent way. The complaint is rejected.

Complainant’s Submission and Presentation:

In late 2013 the Complainant began to experience symptoms of tachycardia and was unable to attend work since 19^th October 2013. She provided the requisite medical certificates throughout her illness. She attended the “Company Doctor” on 5^th February 2015 and the report was passed on to the company’s Occupational Health Adviser (OHA). The Complainant did not receive a copy of this report or any such reports from the company doctor. She has never met or spoken to the OHA. She had meetings with the Respondent and a further review with the company doctor in 14^th July 2015. Again the report was passed to the OHA. She was advised that it was the doctor’s opinion that it was unlikely that she would return to work. On 25^th August the Respondent wrote to her to advise that they could not hold the job open indefinitely. Further meetings with the company were arranged. She was advised that the company doctor expressed the view that “you would not be fit to resume normal working for the foreseeable future”. Again no reports were given to the Complainant. The Respondent then went on to advise that her contract of employment was to be terminated on grounds of ill health. She consulted her solicitor who appealed the decision on her behalf. The Respondent wrote to advise that they do not engage with bodies unconnected with the business. The Respondent refused her the right to be properly represented, failed to provide her with important information regarding the decision to dismiss and they discriminated against her on grounds of her illness.

It is her case that she was never provided with the medical assessments, so she was not in a position to rebut the allegations. She was refused legal representation and she was not offered alternative work. She had a disability and her employer failed to give full consideration to her medical and employment circumstances. In the light of the low cost in keeping the job open the decision to terminate the contract was both unreasonable and unfair.

The Respondent relied upon the OHA assessments based on the doctor’s reports but these were never given to the Complainant. She was denied fair procedure in that she was not given the evidence upon which her employer based its decision to dismiss. The employer’s refusal to engage with her legal representatives deprived her of her rights. While she was a member of a trade union she had a right to disassociate which is a principle established in the Supreme Court decision of Meskell v CIE. The employer bore little cost during her absence due to illness as she was not paid by the company.

At no time did the Respondent provide the Complainant with the policies and procedures regarding termination of employment due to illness. The Respondent has an onus to show that they acted in fact and in law in a reasonable manner. It has been pointed out that they failed to provide her with the medical reports, failed to allow her legal representation and that keeping her job open would not have represented any cost and they failed to acknowledge that she had a disability. They also failed to consider any other remedy. Under this Act the onus of establishing that the decision to dismiss was fair rests with the Respondent. It is clear that they have failed to do so.

She has not worked since her dismissal. She has not looked for work as she is still medically unfit to work. She has sought the redress of compensation.