Complainant

Respondent

Anonymised Parties

An employee dismissed while on long term sick leave

An employer

 Representatives

 Represented

Represented 

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-00007593-001

13/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00007593-002

13/10/2016

The complainant was out on long term sick leave and was subsequently dismissed.

The complainant commenced work with the respondent on 16^th April 2001. In or around May 2008 the complainant was diagnosed with work related stress and took sick leave.   Over the course of the following years there was various correspondence between the complainant and the respondent in relation to the possibility of returning to work. This included various referrals to occupational health.   The respondent wrote to the complainant on 15^th September 2016 terminating his employment without any indication that the respondent was considering such action. The Labour Court in Determination No. EDA 1628 found in these circumstances that an employer was required to ensure that he or she is in full possession of al the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.

In Bolger v Showerings (Ireland) Ltd (1990) ELRR 184 the High Court found that, for a dismissal due to incapacity the employer must show that; incapacity was the reason for the dismissal; the reason was substantial; the employee received fair notice that the question of dismissal for incapacity was being considered and; the employee was afforded the opportunity of being heard. In this instance the respondent wrote to the complainant in August 2016 inviting him to a meeting on 30^th August 2016 but failed to inform him of the nature of the meeting or that they were considering terminating his employment. The complainant responded to the letter requesting details from the respondent of what matters they wished to discuss but received no response.

During the time the complainant was on sick leave he was referred to occupational health on numerous occasions. The final review took place on 2^nd June 2016 and the opinion of the doctor was that the complainant was not fit to attend work and that this was unlikely to change for the foreseeable future – at least six months. At the time of dismissal the complainant was more than half way to through the six month period. It is the complainant’s position that the medical opinion was not up to date at the time of dismissal.

The requirements of the business had been covered since May 2008 and therefore there was no compelling reason for the dismissal.

It is position of the complainant that he was not afforded fair procedures in relation to his dismissal insofar as the respondent failed to warn the complainant of the possibility that his employment may be terminated, failed to give the complainant the opportunity to be heard in relation to the consideration of dismissal and failed to get an up to date medical opinion when effecting the dismissal.   Furthermore, the complainant was not paid statutory notice.

Since the time of the dismissal in September 2016 the complainant has not sought alternative employment and is reliant on the principle in Liz Allen V Independent Newspapers; this is that as the respondent is the cause of the Work Related Stress illness they must bear the responsibility. The preferred option of the complainant is reinstatement.

The complainant was dismissed due to his prolonged illness and the fact that there was no definitive return to work in the foreseeable future. His contract was clearly incapable of being performed.   Frustration of contract occurred due to the unavailability of the complainant for employment. As the complainant was off payroll for a number of years no notice payment was due.

The claimant was dismissed in this case due to the fact that he had not been at work for 8 years. He had been referred on 24 separate occasions to attend an Occupational Health Physician. The majority of these were cancelled at short notice by the complainant. The assessments did not show any improvement. There was no prospect of the claimant returning to work in the short to medium term. The claimant’s contract of employment was terminated due to the fact that he was incapable of performing the work he was employed to do. Without prejudice to this argument the contract of employment was frustrated and had become inoperable.

The complainant was written to on three occasions between 11^th March and 4^th May 2016 where it was stated that his ‘current employment status was being reviewed’. It was clearly not unexpected that his employment would be terminated based on these communications and the outcome of the OHP examination in June 2016.

The complainant’s contract stated that he was entitled to one month’s notice. The Payment of Wages Act refers to wages ‘properly payable’ to an employee in connection with his contract. In this case the complainant did not lose out as a result of employment without notice as, if notice had been given, he would have remained unpaid during the period of notice. Section 6 of the Act states that compensation awarded cannot exceed the net amount of wages payable to the employee. No wages were payable at that time.

While it is permissible to dismiss an employee on the grounds of incapacity, this can only be done where the employer has made sufficient enquiries as to the extent of the employee’s condition and due consideration has been given to any reasonable accommodations that could be put in place to render the employee capable. The employee must also be informed that their dismissal is being considered due to their incapacity. In the present case the letter of 17^th August inviting the complainant to attend a meeting is particularly relevant as it was following his non-attendance at that meeting that the respondent decided to dismiss him. That letter made no mention of the purpose of the meeting being that his employment status was to be reviewed. On 19^th August the respondent queried the purpose of the meeting and received no response. The respondent has argued that the complainant’s contract was frustrated and had become inoperable. The issue of frustration of contract on the grounds of incapacity, and the associated procedural requirements, are comprehended in Bolger v Showerings (Ireland) Ltd (1990) ELRR 184. I conclude therefore, that the complainant did not receive fair notice that the question of dismissal for incapacity was being considered and therefore was not afforded the opportunity of being heard on this issue and therefore was unfairly dismissed.

The complainant, through his non-attendance/late cancellation of many appointments with the OHP contributed substantially to his own dismissal and for that reason I will not order reinstatement.

I note that complainant has not sought alternative employment and is reliant on Liz Allen and Independent Newspapers [2002] 13 E.L.R. 84. The issue in that case was one of constructive dismissal arising out of the conduct of the employer, which is not the case in this instance. The complainant alleges that his illness related to stress caused by the respondent.  Where stress is mentioned in medical reports it would appear to be related to the processing of an investigation/grievance and as such should only be relevant to that particular work place and not an impediment to seeking work elsewhere. Accordingly, I do not accept that the efforts of the claimant to mitigate his losses meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Section 7(1)( c)(ii) of the Unfair Dismissals Act states;

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

I therefore find that the respondent should pay the complainant €3,200 (four weeks pay)

The complainant did not lose out as a result of employment without notice as, if notice had been given, he would have remained unpaid during the period of notice. I therefore find that the complaint under the Payment of Wages Act, 1991 is not well founded.

I find that the Complainant’s dismissal was unfair pursuant to Section 6(7) (a) of the Unfair Dismissals Act 1977 as amended.

Having considered all the evidence, I award the Complainant the sum, equivalent to 4 weeks’ pay, of €3,200 as I consider this to be fair and equitable in the circumstances.

I find that the complaint under the Payment of Wages Act, 1991 is not well founded.

Dismissal, long term sick leave.