FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DUNNES STORES LIMITED (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - ELAINE O' BRIEN (REPRESENTED BY EAMON MURRAY & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No. ADJ-00000625
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 21st July, 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 23rd March, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Dunnes Stores Limited against the Decision of an Adjudication Officer ADJ-00000919-001 given under the Unfair Dismissals Act 1977 - 2007 (the Act) in a claim made by Ms Elaine O’Brien against her former employer. The Adjudication Officer found in favour of Ms O’Brien’s claim and awarded her the sum of €19,000 in compensation.
In this Determination the parties are referred to as they were at first instance. Hence Dunnes Stores Limited is referred to as ‘the Respondent’ and Ms Elaine O’Brien is referred to as ‘the Complainant’.
Background
The Complainant commenced employment with the Respondent on 18 October 2004 and worked as a Sales Assistant in its store on North Main Street, Cork. She was absent for a period of three weeks between 17 January and 6 February 2012 suffering from "stress related illness", which she explained was due toher father having been diagnosed with cancer and she was the only family member at home. She told management that her absence was longer than she expected as his admission to hospital had been postponed.
On 18 April 2012, she commenced a further period of sick leave. The medical certificates furnished by her cited"panic attacks"as the reason for this absence. By letter dated 31stAugust 2015, the Complainant was notified that her employment was terminating with six weeks’ notice on 9thOctober 2015, due to her continued absence from work, with no prospect of a return to work date in the near future. She was given the right to appeal. By letter dated 9thSeptember 2015, the Complainant appealed the decision to dismiss, and outlined the basis for her appeal, as follows:-
- "I have been out sick with stress and anxiety due toan incident that occurred in 2012 in the store in North Main Street. At that time I was disciplined for being rude toa customer. The customer made the complaint about a person called "Eileen". Because my name is similar toEileen I was the person singled out tobe disciplined. I had no knowledge or recollection of any incident involving any customer that I was not furnished with a copy of the letter.
The letter was read to meand the manager said that the customer would be monitoring mefor further rudeness in the future. I found this very distressing. I began tohave anxiety attacks about being watched. This became more acute and eventually I have been certified as being unfit for work ever since. I am attending counselling and am awaiting an appointment with a psychiatrist as has been previously known to Dunnes.
Dunnes Stores have made no effort toinvestigate orrectify the situation as far as these allegations against mewere concerned. They have exposed to me unnecessary stress and anxiety by acting upon an unsubstantiated complaint against me. I was offered no support or counselling orreassurance by the company. I was never seen or assessed by the company doctor.
Dunnes are now proposing todismiss mein circumstances where I am out sick due to their lack of care."
Summary of the Respondent’s Case
Mr Marcus Dowling, B.L., instructed by Byrne Wallace Solicitors, on behalf of the Respondent contended that there were substantial grounds justifying the termination of the Complainant's contract of employment. He asserted that the dismissal was reasonable in all the circumstances.
Mr Dowlingoutlined in full the details of the Complainant’s absence from work. He stated that as the Complainant’s absence progressed in 2012, Ms. Sandra Long, HR Manager in the store, scheduled regular meetings with her with a view to establishing how her condition was progressing and when she might be fit to return to work. The first of these review meetings took place on 24 July 2012 and Ms. Long's notes of this meeting record that:-
- "[The Complainant] explained that she has not been feeling well since her father was diagnosed with cancer at Christmas but that she had been trying her best toget on with things. She explained that every morning when she got up she would be crying and she was finding it difficult tocome into work or do anything else. [The Complainant] said that eventually in April 2012 she could not do it anymore and she began to have panic attacks .... "
The Complainant furnished a medical certificate certifying her as suffering from"panic attacks and anxiety".It was clear that,at thispoint in time, the Complainant was unfit for work for the foreseeable future.
At a review meeting on 22 January 2013, the Complainant informed Ms. Long that she was 15 weeks' pregnant and that she had been taken off all of her medication as a result of her pregnancy. The Complainant was asked to raise the possibility of a return to work with her doctor and she was told that the Respondent could not keep positions open indefinitely.
The Complainant's condition remained unchanged, she completed the relevant paperwork in terms of her impending maternity leave and additional maternity leave. Ms. Long advised the Complainant that she would schedule a further review meeting upon the expiry of the Complainant's maternity leave.
Additional review meetings took place on 24 June 2014 and 5 January 2015. As before, the Complainant's condition appeared unchanged and she remained unfit for work with no prospect of a return within the foreseeable future. During the 24 June 2015 meeting, Ms. Long explained to the Complainant that:-
- "it would be helpful if she could speak toher doctor and ask him toreport on her condition, treatment&progress if any todate&to outline in his opinion if &when she may be in a position to return to work. [The Complainant] said that her doctor had already told her that everyone is different and progress differently and that he could not give her any definitive date. Asked [the Complainant] if she would ask her doctor to indicate whether he believed she could expect to return in the short, medium or long term. The company would then be able to consider its position. [The Complainant] said that she would ask for a report."
During a further review meeting on 12 March 2015, the Complainant toldMs.Long that:-
- "".she had a few setbackssince our last meeting,her father had bypass surgery and her grandmother had died and she was quite depressed.Asked[the Complainant] if she hadspoken toher GP about returning to work.[The Complainant]said that her GP hadadvised that she take babysteps and has not said anything about returning towork.
Explained to[the Complainant] that the company could not continue tokeep her position open indefinitely without some indication of when she may be in a position toreturn to work.Asked [the Complainant] to discuss this with her GP and if possible to get her GP tosubmit a medical report indicating if possible when [the Complainant] might be in a position toreturn towork if ever.”
A letter subsequently received from the Complainant's doctor stated that the Complainant"has unfortunately developed very significant anxiety issues which are not really responding to treatment. She has also had significant stressors including family illnesses and her own pregnancy in the past couple of years. She remains unfit for work and is due to restart counselling and anxiety management."
Mr Dowling stated that a further review meeting took place with the Complainant on 7 May 2015. By this time, the Complainant had been absent from work for a period of three years. During that time, sheappeared to have made little progress and there was no indication of when, or if, she would be fit to return to work. The Complainant met with both Ms. Long and Store Manager Mr Paul Twohig.
The notes of this meeting record that Mr. Twohig advised the Complainant as follows:-
- "Explained to [the Complainant] that the company could not hold her position open indefinitely and needed to know if she would be in a position to returntowork in the short, medium or long term. ... Explained again to[the Complainant] that the company could not keep positions open indefinitely for any employee and if an employee was unabletoprovide the company with a date of RTW then the company would have to consider its position and the options open toit. Told [the Complainant] that this decision was not being made at this time but it is a decision that would havetobe made. Asked [the Complainant]todiscuss this with her GP."
At a review meeting with the Complainant on 13 July 2015, the Complainant was unable to give any indication of when, if ever, she might be fit to return to work. The notes of that meeting record Mr. Twohig having told the Complainant that:-
- "I explained to [the Complainant] that it had been more than3years since she had been at work and that the company cannot keep positions open indefinitely for any employee ... and the company needed tomake a decision on whether it could keep her position open any longer.... I told [the Complainant] that if she was not in a position to provide a date then the company would havetoconsider its position and advised [the Complainant] that termination of her contract was an option that the company may consider .... I advised [the Complainant] that I would schedule a further meeting in4-6weeks, during that time the company could consider its position. I asked [the Complainant] to speak to her doctor and wewould discuss the matter further at that meeting."
The Complainant was notified of a review meeting to be held on 10 August 2015 at which her employment situation would be discussed. She was advised to discuss with her doctor prior to the meeting and bring along any medical documentation or any other information which she wished us to consider. During the course of that meeting Mr Twohig reminded the Complainantthat the Respondent was now seeking a return to work date from her and that if she was not in a position to provide a back to work date then it would be looking at the termination of her contract.
Byletterdated 20 August 2015 she was invited to a further review meeting, where the Respondent would be seeking a definite date of return to work. In the absence of which a decision regarding her employment would be made. She was advised to consult with the doctor and to bring any reports or any information which she might want the Respondent to consider on the day.
Afinal review meeting took place on 28 August 2015. Mr Dowling stated that at this point in time, as the Complainant had been continuously absent from work for three years and four months but with little or no apparent improvement in her condition, and her position,in relation to a possible return to work, remained unchanged, with no medical advisor being able to suggest when (if at all) she would be likely to become fit to return to work, her employment was terminated.
The Complainant was advised that she could appeal the decision to the Regional Manager. By letter dated 9 September 2015 the Complainant appealed the decision to dismiss.
Mr Dowling stated that at the conclusion of an absence review meeting in May 2015, the Complainant asked Ms. Long if she recalled a letter of complaint from a customer in 2012 or a meeting that took place in relation to the said letter of complaint.The Complainant did not advise Ms. Long of her belief that her medical condition was connected to this letter of complaint and the subsequent meeting. Instead, she simply explained that she was 'going through things with her counsellor to see if they were relevant to her condition'.
Mr Dowling said that the contents of the letter came as a surprise to the Respondent. It had no knowledge of the incident to which the Complainant referred. Ms. Long was the HR Manager with responsibility for the Complainant's store in 2012 (and previous years) and she had no recollection of any such incident having taken place. If such an incident had occurred, it would have been recorded on the Complainant's personnel record. The Complainant's records, however, contained no reference whatsoever to any such incident or meeting having taken place. In any event Mr Dowling stated that there was no evidence to suggest that the Complainant's medical condition could only be attributed to the 2012 customer complaint.
He said that in these circumstances, the Regional Manager wrote to the Complainant on 21 September 2015 to confirm that he upheld the decision to dismiss.
The applicable test in the context of dismissal by reason of incapacity
Mr Dowlingasserted that the dismissal was reasonable in all the circumstances. He submitted that in circumstances where the Complainant had been absent from work for almost three and a half years, with little improvement in her condition and with no prospect of a return to work in the foreseeable future,there was no basis for arguing that the decision to dismiss in this case was not reasonable.
Mr Dowling posed that it was not the Court’s role to substitute its views for that of the employer but rather to establish whether or not the decision to dismiss was within the"band of reasonable responses"and relied upon the Court of Appeal inFoley v Post Office [2000]ICR1283. As stated by Mummery L.J. (at p. 1295):-
- "This case illustrates the dangers of encouraging an approachtounfair dismissal cases which leads an employment tribunal to substitute itself for the employer or toact as if it were conducting a rehearing of, oran appeal against, the merits of the employer's decisiontodismiss.Theemployer,not the tribunal,is the proper person to conduct the investigation into the alleged misconduct.The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation,is a reasonable response. "
He also relied upon the decision of the Court of Appeal inAnglian Home Improvements Limited v Kelly[2005] ICR 242 where again Mummery L.J. held:-
- "Thefirst criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test.The test has been well established since the early days of unfair dismissal claims.It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK LtdvSwift[1981]IRLR91, 93para11cited by Mr. Laddie. The test laid down there was:
- "The correct test is: Was it reasonable for the employerstodismiss him? If no reasonable employer would have dismissed him,then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him,then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man.The other would quite reasonably keep him on. Both views may be quite reasonable.If it was quite reasonable todismiss him, then the dismissal must be upheld as fair:even though some other employers may not have dismissed him."
In support of the Respondent’s contention that it was reasonable to dismiss in the circumstances herein, where the dismissal was by reason of incapacity, Mr Dowling cited a number of cases,viz. Bolger v Showerings (Ireland) Ltd[1990] ELR184 where the High Court considered the appropriate test in the context of dismissal for ill-health. The Court noted that the Act"obliges an employer to show good cause and by imposing an overall test of reasonableness.”
The Court observed that"(o)ne of the grounds set out in section6(4)is the capacity of the employee to carry out the work for which he was employed."
In that case, the ill-health of the employee rendered him incapable of performing his duties as a forklift driver. The Court stated that;
- "For the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for his dismissal;
(2) That this was substantial reason;
(3) That the employer received fair notices that the question of his dismissal for incapacity was being considered and
(4) That the employee was afforded an opportunity of being heard."
- "For the employer to show that the dismissal was fair, he must show that:
Applying the above to the case before it, the High Court found that;
- “The plaintiff was entitled to be told of the concerns which the company had concerning him, which could and did eventually leadtohis dismissal.[The plaintiff] had been clearly informed of the company's concerns in the correspondence between the parties.This is a cased which must turn upon its particular facts. On three occasions, the plaintiff had been asked to provide his doctor's opinion as tohis likely return towork date. In reply all that had been received by the company was a letter from Dr. O'Regan, acting as locum for [the plaintiff's] GP,setting out what was in fact [the plaintiff's] own view that he would never be abletoreturntowork and that at some time in the near future he would be admitted to Cork Regional Hospital.At no stage was a likely return towork date furnished.
The question arose whether the company was under an obligationtoawait the results from Cork Regional Hospital. The company was not so obliged in the circumstances of this case. If this had been the firstorone of a very few instances of absence, a different view might be taken, but in the light of the case history, the company was entitledtosay that [the plaintiff] himself thought he was unfit toreturn towork. Different considerations might well apply if the company and [the plaintiff] were at odds over his fitness for work. In that case, it might well have been appropriate for the company to await the results of the medical tests. However,in this case there were substantial grounds for the dismissal and the dismissal had been reasonable in all the circumstances. An employer is entitled to expect that as part of the contract of employment,an employee would be capable of carrying out the tasks for which he had been employed."
- “The plaintiff was entitled to be told of the concerns which the company had concerning him, which could and did eventually leadtohis dismissal.[The plaintiff] had been clearly informed of the company's concerns in the correspondence between the parties.This is a cased which must turn upon its particular facts. On three occasions, the plaintiff had been asked to provide his doctor's opinion as tohis likely return towork date. In reply all that had been received by the company was a letter from Dr. O'Regan, acting as locum for [the plaintiff's] GP,setting out what was in fact [the plaintiff's] own view that he would never be abletoreturntowork and that at some time in the near future he would be admitted to Cork Regional Hospital.At no stage was a likely return towork date furnished.
In conclusion, Mr Dowling relied upon the case ofBerber v Dunnes Stores[2009] 20 ELR 61 where the Supreme Court held that an employer is entitled to take the contents of a medical certificate completed by an individual employee's medical practitioner at face value and to rely on the certification that an employee was fit to work unless there is a good reason to think the contrary. In the instant case Mr Dowling asserted thatthere was never any dispute in relation to the Complainant's medical status or her inability to work.
Summary of the Complainant’s Case
Mr Vincent Mc Kechnie, B.L., instructed by Eamon Murray & Co Solicitors, on behalf of the Complainant submitted that the Respondent’s actions and inactions inhibited the Complainant’s recovery from ill health.
The Complainant was medically certified as suffering from “stress related illness” since April 2012. She commenced maternity leave on 1stJuly 2013 until 31stDecember 2013. By letter dated 31stAugust 2015 she was given notice of her dismissal for “being absent for more than 3 years and 4 months”. He objected to the Respondent’s persistence in contending that the Complainant was absent from April 2012 to August 2015, when part of this time was statutory maternity leave. He said that this placed additional pressure on her. He said that as the Complainant was advised by her doctor to cease the medication she was on during her pregnancy she thereby lost the opportunity to progress at a faster rate in terms of recovery.
On behalf of the Complainant, Mr Mc Kechnie objected to the Respondent’s failure to have the Complainant independently assessed before deciding to dismiss her. He made the point that the Complainant’s contract of employment provided for such an assessment. This he said was despite the references made at a number of the review meetings that such an assessment may be carried out. He said that the Complainant provided a letter from her GP at a review meeting on 12thMarch 2015. This letter outlined her fragile psychological state. Mr Mc Kechnie submitted that the repeated requests made of her to report on her progress in such circumstances, where the alternative of having her medically assessed might have been easily arranged, was unfair.
Mr Mc Kechnie submitted that the Respondent behaved unfairly to the Complainant when she was not permitted to be accompanied by her partner to a review meeting on 24thJune 2014. He maintained that it was unfair of the Respondent to suggest that she attend the review meeting without being accompanied when she was experiencing ongoing psychological distress for which she was medically certified as unfit for work and for which she was being medicated.
Mr Mc Kechnie submitted that the Respondent failed to record an incident involving a customer complaint in January 2012, for which was the Complainant was subjected to a disciplinary sanction. Furthermore, he submitted that the Respondent’s failure to enquire into those events from May 2015 onwards, notwithstanding being requested to do so, was a contributing factor to her continued absence for stress related illness. He said that the Respondent failed to accord the event any significance and to engage a medical assessor to clinically enquire into the relevance of the issue or its potential significance as a cause of the Complainant’s psychological issues. These failures he argued, inhibited her recovery and hindered the “triggering of events to fade into history”.
With reference to the incident of January 2012, Mr Mc Kechnie said that the Complainant was formally verbally warned by Ms Sandra Long, HR Manager for her allegedly rudeness to a customer in January 2012. The customer had complained about a person he referred to as “Eileen” and apparently, as the Complainant’s name was somewhat similar it was assumed that she was the Sales Assistant involved. He said that a lengthy letter of complaint had been read out to the Complainant in the presence of a colleague, which contended that she would be monitored and observed by this customer going forward. Mr Mc Kechnie said that the Complainant was of the view that such a complaint was wholly unfounded and that the Complainant was informed that it would remain on her disciplinary record. The Complainant’s record prior to that had been clean.
Mr Mc Kechnie said that the Complainant had not brought this issue to management’s attention and she had not submitted a grievance complaint regarding the matter. However he contended that the Complainant became excessively fearful and commenced having panic attacks which became more acute as she believed she was being watched and she suffered psychologically from early 2012. She reported the origins of her difficulties to the Respondent as being related to her father’s illness which had occurred in and around the same time and which also created significant stress for her.
Mr Mc Kechnie said that it was in the course of her counselling treatment and cognitive behavioural therapy, that the Complainant’s counsellor suggested she should attempt to procure the customer’s letter in order that she might attempt to dealt with the matter and put it behind her. However, the Respondent could neither remember nor find any documentary record of the incident. On 9thSeptember 2015, the Complainant outlined the circumstances of this incident to the Respondent in a letter appealing the termination of her employment and stated that she was waiting to see a psychiatrist. It was only at the hearing of the complaint under the Act before the Adjudication Officer that the Respondent stated that on making some enquiries it discovered the details of the colleague who accompanied the Complainant to a meeting in January 2012, where a customer’s letter of complaint was read out.
Mr Mc Kechnie questioned why this discovery could not have been made when the Complainant raised the issue with Ms Long in May 2015 and why no great effort was expended by the Respondent in ascertaining the reality of this incident prior to dismissing her.
Referring to the Respondent’s reliance onBolger v ShoweringsMr Mc Kechnie said that in the instant case, the Complainant never expressed the view that she would never be able to return to work. While she was not medically fit to return she continued to advance that she wished to recover and return to her position. She was awaiting a psychiatrist appointment and was attempting to address her panic attacks.
Summary of the Witness Testimony on behalf of the Respondent
- Ms Helena Murphy, Sales Assistantworking in Dunnes Stores
Ms Murphy gave evidence that she had worked with the Complainant in the store in North Main Street. She described the Complainant as a friendly work colleague and that she had been asked to accompany her to a meeting with management in January 2012 in relation to a customer complaint. She remembered attending the meeting but had no further recollection of the events of that meeting.
- Ms Sandra Long, HR Manager with Dunnes Stores
Ms Long told the Court that she was the HR Manager in the North Main Street, Cork store and had responsibility in respect of the Complainant during the period in question. She explained that the Respondent had a computerised system, Oracle, to record personnel matters in respect of each individual employee. All of the Complainant’s absence records and details of review meetings were held on the system. She disputed the assertion that a disciplinary sanction was imposed on the Complainant in January 2012. She said that had there been such a sanction imposed such details would be retained on the system. She said that even items that don’t give rise to discipline are recorded. With reference to Ms Murphy accompanying the Complainant to a meeting in January 2012, she said that that was not necessarily indicative of it being a serious matter.
Ms Long said that while the Complainant was informed that she was not permitted to bring her partner along with her to the review meeting on 24thJune 2014, when it was explained that due to her psychological state she required the support of her partner, and this was confirmed by her doctor, there was no issue after that.
Ms Long said that the only mention of the incident in January 2012 made by the Complainant was in May 2015, at the end of a review meeting as she was going out the door, when the Complainant asked if the customer’s letter was still on file and if she could get a copy. Ms Long told her she would look into it for her. Ms Long said that she had no recollection of the customer complaint or the meeting which the Complainant said she was asked to attend in respect of that complaint and she could find no evidence of any such meeting.
Ms Long said that the reason the Complainant was not sent for an independent medical assessment was due to the fact that the Respondent accepted that she was genuinely ill. She said that “we had no reason to dispute the prognosis given by her doctors”. She said that such assessments are at the Respondent’s discretion and may be carried out where it does not have confidence in the certificates furnished. Her medical certificates were being sent in on a weekly basis. These did not have a return to work date.
Ms Long said that Mr Twohig took the decision to dismiss the Complainant.
Ms Long said that had the Complainant not had confidence in her to make a grievance regarding the January 2012 incident then there were other avenues open to her to make such a complaint. However, the Complainant had not brought it to the attention of any member of management prior to her appeal of the dismissal.
- Mr Paul Twohig, Store Manager with Dunnes Stores
Mr Twohig was Store Manager in the North Main Street Store at the relevant time. He said that the Complainant was dismissed due to her incapacity to work and as she was not in a position to give a date for return to work.
He said that he had no reason to dispute the Complainant’s medical certification and that in those circumstances it was not necessary to have her independently assessed.
Mr Twohig said that he was present when the Complainant asked about the customer letter at the end of the meeting on 7thMay 2015.
Summary of the Witness Testimony on behalf of the Complainant
- Ms Elaine O’Brien, The Complainant
Ms O’Brien said that in January 2012, Ms Long asked her to attend a meeting and permitted her to bring a work colleague to accompany her. Ms Murphy accompanied her to the meeting, at which Ms Long read out a letter from a customer complaining about a Sales Assistant, whom he called “Eileen”. The letter indicated that the customer intended to monitor the Sales Assistant concerned. She said that while her name was not “Eileen” but “Elaine”, she took the blame. She said that she thought she was given a verbal warning at that meeting. Shortly afterwards she went out on stress leave due to her father’s cancer diagnosis.
Ms O’Brien said that each time she received a letter from the Respondent calling her in for a review meeting she felt stressed about it. She said that reference was always made at these meetings to the possibility of an independent medical assessment, but it never happened. She said that she remains unfit for work.
In cross examination Ms O’Brien said following her father diagnosis she was on stress related sick leave from 16thJanuary 2012 until 6thFebruary 2102. She said that at the time she did not mention the customer complaint incident and it was only when she was attending a counsellor in May 2015 that the counsellor asked her about other possible triggers for her stress/anxiety now that her father had recovered from his illness. She said that it was the counsellor who brought the incident to the fore and suggested to her that she should see if she could get a copy of the customer’s letter. She said that until that time she did not realise how much that incident had been a factor in her illness.
At the meeting on 7thMay 2015 Ms O’Brien said that she mentioned the letter and asked Ms Long to check to see if she could find the letter, but said that she was fearful of saying anything further to Ms Long and that Mr Twohig did not engage with her at that meeting.
Ms O’Brien said that it was wrong that the Respondent did not keep that letter as it would have helped her in her recovery.
The Law
Section 6 of the Act in relevant part states:-
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(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,
(7) Where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal.
Findings of the Court
The Respondent submits that the Complainant’s dismissal arose out of her incapacity to return to work to carry out the duties for which she was employed.
The Act provides that where dismissal is 'wholly or mainly' on the grounds of the employee’s incapability to perform the work of the kind they were employed to do it will be deemed not to be an unfair dismissal.Hence,thereason relied upon by an employermust bethedominant reason operatingon themindof the decision makerat thetimethedecisiontodismisstheemployee wastaken. In the case ofReardon v St. Vincent’s HospitalUD/74/1979 the Employment Appeals Tribunal defined incapability as “long term illness”.
The onus of proof lies with the Respondent to show that it was genuinely of the belief that the Complainant was incapable of fulfilling her duties.
In this case the Respondent was satisfied that the Complainant had produced medical certification on a regular basis, there was no reason to dispute the medical certification furnished and there was no conflict of medical opinions. In such circumstances the Court is satisfied that the Respondent’s decision not to refer the Complainant for an independent assessment was not unreasonable.
It is an implied term in any contract of employment that an employee will remain fully fit to perform the duties for which he or she is employed and the loss of that capability can give rise to dismissal. InBolger v Showerings Limited [1990] ELR 184Lardner J said that in order to demonstrate that a dismissal on grounds of capability is fair the employer must show that ill-health was the substantial reason for the dismissal, that the employee got fair notice that dismissal for incapacity was being considered and that
the employee was afforded an opportunity to be heard.
Having considered the oral and written submissions made together with the evidence adduced, the Court is satisfied that the Complainant’s ill-health was the substantial grounds for the dismissal. The Court notes that no other grounds were advanced by the Complainant. While much reference was made by both parties of the January 2012 incident and the Complainant’s request for a copy of the customer’s letter, the Court fails to see how such a reference alters the fact that she was dismissed due to herincapability to perform the work for which she was employed and remains so to this day.
The Complainant’s submission that it was unfair of the Respondent not to supply her with a copy of the letter or to take this matter into account in the appeal does not alter the reasons for the decision to dismiss her in August 2015, which still existed in September 2015. The incident may have been a contributor to the stress she was under however, there is no evidence to show that it was a factor which influenced the Respondent to dismiss her. If the incident was a contributor factor to her illness then it was the reason (or at least part of the reason) for her continued absence.
Secondly, the Court is satisfied that the Complainant received fair notice of the possibility of dismissal due to her inability to return to work as a result of her illness. The Court considers it a flaw on the Respondent’s part to include the Complainant’s maternity leave in the calculation of her absence period as this clearly did not come within the meaning of absence. However, the Complainant was absent from April 2012 until the commencement of her maternity leave in July 2013 and was absent again following the completion of her maternity leave on 1stJanuary 2014 until the termination of her employment on 31stAugust 2015.
The Court notes that it was not disputed that due process was followed by the Respondent and that her absence was proactively managed. The Respondent’s Sick Leave Policy states that employees who are absent“will be required to attend meetings during the course of their absence for the purpose of discussing when they will be returning to work and any related matters”.It is not disputed that such meetings were held on a regular basis throughout the Complainant’s absence. The minutes of those meetings which are not in dispute, clearly show that for the period from April 2012 until March 2015 (excluding her maternity leave period), when asked about her return to work the Complainant informed the Respondent that she could not say when she would be in a position to return to work. She was advised to continue to submit medical certs and to make regular contact with the store. Then from 12thMarch 2015 until her dismissal at the end of August 2015, the minutes of the meeting show that the Respondent informed her that it could not keep her job open indefinitely for her without some indication of when she may be returning to work. The minutes of the meeting of 7thMay 2015 indicate that the Company sought a possible return to work date in the“short, medium or long term”. At all meetings the Respondent asked her to talk to her doctor about a possible return to work date. The Respondent informed her on 10thAugust 2015, prior to her dismissal, that if she was not in a position to provide a back to work date then it would be looking at the termination of her contract. At no point was the Complainant in a position to give any indication of a return to work date. The Court finds that the medical evidence on which the Respondent relied supported its conclusions.
Finally, the Court is satisfied that the Complainant was afforded an opportunity to be heard. It was difficult for the Complainant as she remained medically unfit for work at all times during this process and was not in a position to say when she would be able to return to her work. However, while she found the review meetings upsetting she was given every opportunity to make the Respondent aware of her condition.
Conclusions of the Court
It is not for the Court to establish whether the Complainant was incapable to carry out her duties but rather it is sufficient that the Respondent honestly believed on reasonable grounds that she was.
This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -
- It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”
- “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”
- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Having regard to all the circumstances in the instant case, the Court accepts that the Respondent was of the view that there were substantial grounds justifying the dismissal of the Complainant in circumstances where there was no prospect of her returning to work in the foreseeable future due to her continuing illness.Therefore, the Court finds that the Complainant was not unfairly dismissed.
Determination
The Court determines that the dismissal was not unfair and upholds the appeal. The decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.