ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004138

Complaint(s):

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-00005943-001	19/07/2016

Date of Adjudication Hearing: 30/03/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Location of Hearing: Room 4.05 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The Complainant was dismissed on grounds of incapability to work. The Respondent employer failed to adequately consider alternative work positions or job redesigns that would have allowed the Complainant continue in work.

Summary of Respondent’s Case:

The Respondent is a Food sauces preparation Company- They are a relatively small operation and a high standard of physical capability and personal hygiene is required of all employees. Concerns arose regarding the Complainant in early 2015 and he was referred to Med Wise Occupational Health Consultants on the 3^rd February 2015. Dr. Gleeson of MedWise gave the Complainant a limited with restricted duties return to work opinion. The Respondent, after consideration, could not provide a limited with restricted duties positon for the Complainant. A further referral to MedWise took place on the 11^th May 2015. The Medical report did not find the Complainant fit for normal duties. He was reviewed again on the 28^th September 2015. He remained unfit for work. The Doctor recommended that he remain on sick leave as there were no suitable sedentary positions available in the Respondent’s Plant. He was referred again to MedWise in February 2016. The Doctor’s report was that

“X is only fit for sedentary workplace duties and since these are not available, he has no option but to remain on long term sick leave.

In my opinion X is permanently unfit to return to manual work due to ongoing incapacity. I recommend early retirement on medical grounds”

Correspondence followed with the Complainant in which various alternative roles and job tasks were considered. No possible re organisation or re allocation of tasks was possible as suggested by the Complainant. On the 1^st March 2016 the Respondent wrote to the Complainant terminating his employment. He was offered an opportunity to Appeal this decision but declined to do so.

Findings and Conclusions:

I refer to Section 6(4) of the Unfair Dismissals Act, 1977 which provides that a dismissal is not deemed to be unfair where it results

“Wholly or mainly from an employees’ capability to perform the work of the kind which he was employed to do.”

Considerable legal precedent was cited by the Respondent to support this position beginning with the now headline case UD 74/1979 Reardon v St Vincent’s Hospital. Here the Chairman of the EAT at the Hearing, Mr. Dermot MacCarthy and his colleagues, found in the Respondent’s favour. The final sentence of the EAT is very apt to this case.

“The Respondents acted reasonably in dismissing the appellant. (Alternative positions had been considered). The Tribunal wish to emphasise however, that it was not Mr. Reardon’s fault that he was not capable of doing his job” UD 74/1979

In the case in hand considerable Medical evidence was gathered and the Complainant was afforded the opportunity to comment and have an input. It appeared that , arising from the regularity of his visits , the Med Wise Doctor go to know him very well and afforded him good opportunities to keep her informed on his situation. The Respondent formally passed all Medical reports to the Complainant and discharged all consultation duties here.

In regard to considering alternative duties this was explored fully. At the Oral Hearing the Managers and in particular the Supervisor Ms X was closely questioned on this point by the Adjudicator. The Complainant was not represented. I was satisfied by Ms X’s answers that everything possible and reasonable, bearing in mind the size and nature of the Respondents business, had been done to attempt to find a suitable alternative position. The Nano Nagle Decision was touched on briefly with the Respondents’ Legal Advisor but it was considered that the principles of that case were primarily Equality related and the UD Act, 1977 did not have quite as high a requirement on an employer. None the less the direct evidence from the Supervisor reassured me that every thing possible had been explored and the suggestions from the Complainant given due consideration.

Procedurally I noted that the Complainant had not exercised his right of Appeal – even if, as he stated, he doubted the impartiality of the proposed Appeal decision maker.

Accordingly, having considered all the evidence I find that the claim for Unfair Dismissal is not well founded and is Dismissed.

The quote from Mr MacCarthy quoted above in UD 74/1979 is very apt to this case.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Act	Complaint/Dispute Reference No.	Decision
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00005943-001	Claim is not well founded and is dismissed.

Dated: 07/06/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee