ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002318

Complaint for Resolution:

Date of Adjudication Hearing: 09/01/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) 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.

Respondent’s Submissions:

The claimant commenced employment at a convent on 9th January 2006 and was directly employed by the convent until the catering and cleaning services were contracted out to the respondent on 10th November 2014. At the time of the transfer of undertakings, the claimant was on long term sick leave having been diagnosed with cancer.

The claimant had been on long term sick leave since October 2013 and was written to at the time of the transfer of undertakings, in order to inform her of the process. The claimant remained absent from work until the date of termination on 20th January 2016.

The claimant worked approximately 22 hours per week, for which she received €10.45 per hour.

The claimant attended a welfare meeting with the combined services manager and one manager on 11th March 2015. An interpreter was also present at this meeting. The claimant presented the company with a letter from her Oncologist. This letter stated that the claimant had developed recurrent breast cancer with extensive disease to the bone and was undergoing treatment. The doctor stated that ‘with her ongoing intensive treatment and her underlying disease she is not fit for work nor do I expect her to be fit for work anytime in the immediate future.’

In April 2015, the respondent requested that the claimant attend the company doctor, in order to get an update on her health as the claimant had been on long term sick leave since October 2013. On 16th April 2015, the claimant attended an occupational medical review.

In a letter to the company dated that same day the doctor stated that the claimant was not fit to return to work and that it was unlikely that she would achieve a return to work capability in the future. Before giving a more definitive opinion on this, the doctor recommended a review in six months time.

In June 2015, the claimant requested to return to work on a part-time basis as she had finished her chemotherapy. The respondent responded that they would gladly welcome her back upon receipt of a medical cert to state that she was fully fit to return to work.

The next medical certificate the respondent received from the claimant was in July 2015 and, once again, this certificate stated that the claimant was unfit to work.

On 11 August 2015, a text received from the claimant indicated that she had a letter from her GP who advised not to go back to work.

On 15 October 2015, and as advised by the company doctor in April 2015, the claimant attended the company doctor for a follow-up assessment. In a letter to the company dated the same day, the doctor stated that the outcome of this assessment was that the claimant was not fit to return to work and that he did not envisage that the claimant would not achieve return to work capability at any time in the future.

On 26th November 2015, the claimant attended a welfare meeting with the respondent. It was explained to the claimant at this meeting that her capability to fulfil her role was to be discussed. The claimant was informed that dismissal on the ground of capability was a possibility. Pursuant to this meeting the respondent wrote to the claimant, in a letter dated 3 December 2015 inviting her to a formal capability investigation meeting. The claimant was informed that she was entitled to bring along a representative to this meeting and that the meeting may lead to the termination of her employment on the grounds of capability.

On 14 December 2015, the claimant attended the investigation meeting, held by Combined Services Manager, where the claimant’s most recent medical reports and potential alternative roles for the claimant were discussed. The claimant and her daughter reviewed the doctor’s report and agreed it was fine. The combined services manager explained that the purpose of the meeting was to confirm all the information, and to discuss her position within the company. It was also explained that due to the nature of the business, most roles are physical and explained that the company must stand by the doctor’s opinion.

On 4 January 2016, the combined services manager wrote to the claimant inviting her to attend an outcome of the investigation meeting on 7 January 2016.. In this letter the claimant was informed that failure to attend the outcome meeting would lead to a decision being made in her absence and subsequently communicated to her in writing.

The claimant indicated to the combined services manager by text message that she would not be attending the outcome meeting.

On 8 January 2016, the combined services manager wrote to the claimant, acknowledging receipt of this text message. The respondent attached to the letter copies of all relevant documentation and afforded the claimant the opportunity to review all items under consideration and to provide any further relevant information by 13 January 2016, before any outcome would be delivered.

On 20 January 2016, the combined services manager wrote to the claimant to inform her that the outcome of the investigation was that the company had no other option but to terminate the claimant’s employment on the grounds of capability. The claimant was offered the opportunity to appeal.

Following this, the claimant sent in another medical certificate on 4 February 2016. On 9 February 2016, the combined services manager wrote to the claimant acknowledging receipt of the medical certificate and offering an extended opportunity to appeal.. The claimant did not avail of this extended opportunity and chose not to appeal.

Submissions on behalf of the complainant:

The complainant commenced work at a convent in 2006. In 2011 she became ill with cancer. In 2012 she underwent an operation and treatment. She returned to work in June or July of 2012. In October, 2013 her cancer reoccurred and she went out on sick leave again. Whilst out on sick leave there was a transfer of undertakings and the catering and cleaning services were contracted out to the respondent. She was written to by the respondent around the time of the transfer to inform her of the situation. The complainant was asked to attend the company doctor in April, 2015 which she did. It was confirmed that she was not fit to return to work at that stage. The complainant contacted the respondent in June and asked if it would be possible for her to return on a part –time basis. She was asked to submit a medical certificate certifying her fit to return. The respondent asked her to attend with their company doctor again in October, 2015. Again it confirmed she was unfit to work. She was then asked to attend several meetings with the respondent. The first of those was the 26^th November, 2015, then the 14^th December, 2015 and finally the 7^th January. She did attend the first two of those meetings but failed to attend the last one on the 7^th January.

The complainant took objection to the respondent’s interference during her sick leave. She felt that they were putting pressure on her to resign her position and were requesting that she attend at far too many doctor’s appointment and company meetings. She became stressed by this.

She was dismissed on grounds of incapacity on the 20^th January, 2016.

The complainant died on the 19^th December, 2016.  

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.

Section 6(4)(a) Unfair Dismissals Act, 1977-2015 states:

“The dismissal of an employee shall be deemed, for the purposes of this Act, not to be unfair dismissal, if it results wholly or mainly from one or more of the following:

1. The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do…”

    

   There is no doubt based on the medical evidence produced that the complainant was incapable of carrying out the work she was employed to do. The medical evidence on the 15^th October, 2015 specifically stated that “ she will not achieve a return to work capability at any time in the future”

    

   I must now establish whether or not the respondent satisfied it’s common law obligations to the complainant. Bolger v Showering ( Ireland) Limited ELR 184 (1990) sets out the requirements as follows:

• Ill health must be the reason for the dismissal

• Ill health must be the substantial reason

• The employee must have received fair notice that the question of dismissal for the reason of incapacity was being considered

• The employee must be given the opportunity of being heard.

I am satisfied that the only reason for the dismissal was due to the complainant’s incapacity. I am also satisfied that the complainant did receive fair notice that the issue of her dismissal, due to her incapacity was being considered. Finally, I am satisfied that she was given the opportunity of being heard.

The complainant was also given the opportunity to appeal the decision to dismiss her on grounds of incapacity but she failed to do so.

In all of the circumstances I find that the complainant’s case fails.

Dated:   26 April 2017