ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006152

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/05/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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).

Background:

The Complainant alleged her dismissal was unfair as it arose out of an incident at work and she felt she should not have been dismissed as a result. In this case a number of medical documents and communications were presented at the Hearing. These are deliberately shortened or summarised by the Adjudicator to provide the added protection of privacy and confidentiality for the Parties. Also the exact details of the alleged incident referred to in this case are also not contained in precise detail for added confidentiality.

Summary of Complainant’s Case:

A fellow employee of the Complainant engaged in repeated inappropriate behaviour towards the Complainant at work.
The Complainant made a written complainant to her employer and this was investigated and the Respondent did not come back to the Complainant to tell her what the outcome of the investigation was.
The person who the Complainant made the allegations against was suspended for three days following which he returned to work and his unexpected return to work had a devastating impact on the Complainant as she had to work side by side with him in a confined space.
The person who the Complainant made the allegations against shouldered the Complainant in a supermarket outside of work.
The Respondent was well aware of the inappropriate behaviour of the person complained against and he had engaged in other inappropriate conduct to other employees. This conduct was brought to the attention of the Respondent prior to the incident in May 2012. The Complainants management did not do enough to curtail the person and should have not asked the Complianant to work alongside him after the incident.
The Respondent was dismissive of the Complainants complaint and never offered any practical solution for her return to work. The Complainant repeatedly informed the Respondent that she wished to return to work and this was never facilitated.

Summary of Respondent’s Case:

The Claimant’s Workplace Relations Complaint Form states that the Claimant commenced employment on 7th April 2008 and that the employment terminated on 23rd November 2016.
The Claimant claims that she was unfairly dismissed due to incapacity and that as a result she is claiming compensation, reinstatement and reengagement.
It is the Respondent’s case that the Claimant was fairly dismissed on grounds of incapacity after a 4-year ill health absence commencing in June 2012. The Respondent arranged for the Claimant to be medically assessed 4 times and on each occasion, she was found to be unfit for work with guarded outlook for a future return. The Claimant was advised of the medical findings and invited to submit reports from her own treating doctors but declined to do so. The Respondent met with the Claimant periodically over the course of her absence to ascertain if there was anything that could be done to facilitate her return to work and the Claimant did not offer or suggest any proposals in this regard. The Respondent asked the medical examiner to consider reasonable accommodation measures that might assist a return to work for the Claimant but his report advised that he could see no measures that would enable the Claimant to return to work at this time or in the near future.
The Respondent has clear guidelines regarding the management of attendance and long term illness and has adhered to these during the process leading to the Claimant’s dismissal. Prior to any decision being taken regarding the Claimant’s employment, the Respondent met with the Claimant to discuss her ongoing absence and the likelihood of a decision being taken to terminate the employment. The Claimant engaged with the process and attended a meeting with the Respondent in the company of her solicitor. The Claimant has at all times expressed a desire to return to work but has accepted that she is currently unfit to work and has failed to offer any explanation or supporting evidence to establish that she is fit to return to work or will be in the foreseeable future.
The Respondent denies that the Claimant has been unfairly dismissed and/or that she is entitled to re-instatement, re-engagement or compensation.
The Respondent operates a chain of retail stores across the Republic of Ireland.
The store currently employs 59 employees.
All employees are provided with a written contract on commencement of employment and this is supplemented by various policies and procedures which are contained in the Employee Handbook. The Respondent, as an employer, is aware of the importance of the adherence to policies and procedures to ensure a consistent and fair application of rules and standards across the organisation.
The Claimant’s Contract of Employment and relevant ‘Conditions of Employment Handbook’ for the matters raised in this claim, dated January 2011 and the ‘Management of Attendance’ policy are central to this claim.
The Claimant commenced employment on 24th August 2008 and was hired as a sales advisor. The Claimant performed well in this role and her disciplinary record was clear. She was noted to be a hard-working and valued member of the team.
In May 2012, the Claimant brought management’s attention to a workplace incident that occurred on 17th May 2012. The Claimant had been alone with this staff member at the time in the Instore Bakery.
On receipt of the Claimant’s complaint, the matter was immediately investigated and both the Claimant and the other staff member were interviewed. There was a divergence in the accounts provided, but the staff member apologised for his behaviour. A disciplinary process took place for that staff member and a Final Written Warning was issued to him. He did not appeal this decision. The other staff member was suspended for the duration of the investigation and disciplinary process but returned to the workplace after the disciplinary process, which concluded on 30th May 2012. The Claimant was aware that the staff member was subject to a disciplinary process. She had advised that she did not wish for the staff member to be dismissed.
The Claimant then took sick leave on 18th June 2012 and has not returned to the work place since.
The Respondent has grievance procedures in place to deal with matters which may arise in the workplace. This procedure sets out that grievances should be brought to the employee’s line manager who will investigate the issue
In the Claimant’s case the Claimant first brought the issue to the attention of the Section Manager who then investigated the matter.
The Claimant did not appeal or otherwise advise any member of the Respondent’s staff that she was dissatisfied with the handling of her grievance and the resulting investigation in the weeks following the investigation.
The Employment Handbook (January 2011) contains a section dealing with Disciplinary and Dismissal Procedures at p. 44. At p. 47 of that handbook there is a section as follows:
“Absence
If your absence exceeds the Company’s acceptable level, you may be disciplined in line with the Management of Attendance Policy. Pease refer to the Policy for further information.”
The ‘Management of Attendance’ policy is a detailed document which covers various aspects of workplace absence, including ill health leave.
In the opening ‘General’ section is the following statement:
“Unacceptable levels of non-attendance for whatever reason may ultimately lead to the contract being terminated. Discretion will be used at all times”
Later in the policy document the following sections are set out:
“Long Term Illness
The company will endeavour to support people whilst on long term sick leave. Contact will be maintained by the HR Department and Occupational Health (OH). Normally, the HR Manager will refer the individual to the OH Advisor after 4 weeks’ absence in order to support the person back to work.
Frustration of Contract
On occasions an employee will, through no fault of their own, be unable to fulfil their contract obligations. The company with the advice of the Occupational Health will consider reasonably practicable ways to resolve the problem. In some cases this may not be possible and the company may have to consider ill health dismissal. The HR manager will explore all available options with an employee prior to any decisions regarding ill health dismissals. The relevant trade union official will also be notified of any such cases.
Where the option is to dismiss an employee on the grounds of incapability, the employee will be informed in writing of the reason and assured that should they make a recovery in the future that the ill health dismissal will not be detrimental to their return to work with (The Respondent)”
It is not possible for the Respondent to keep positions open indefinitely for employees who are on long term sick leave. It is important for the Respondent that where employees are not capable of returning to work that those positions are filled with alternative candidates who can attend work and carry out the duties required.
Where an employee is prevented from returning to work due to incapacity or disability, the Respondent will endeavour to ascertain whether anything can be done to facilitate the employee’s return to work. Where reasonable accommodation can assist the employee’s return to work, same will be provided. The Respondent ensures that all employees who are being considered for ill health dismissal will first be reviewed by the Respondent’s Occupational Health advisors to ascertain if he/she is likely to be fit to return to work and whether any reasonable accommodation could assist such return to work. The employee is furnished with the occupational health report and is encouraged to provide feedback and/or alternative medical information from his/her own medical advisors.
Under the above Absence Management procedures, if the original employee recovers his or her health, he or she will be welcome to apply for any open position within the company.
Copies of all correspondence between the Respondent, and its solicitor, and the Claimant, and her solicitors were supplied plus all relevant meeting notes and medical reports of the Occupational Health Specialist.
As noted above the Claimant took sick leave on or about the 18th June 2012, with the original sick certs stating that the Claimant was suffering from stress/anxiety due to work conditions.
By way of letter dated 15th June 2012, the Claimant’s solicitor wrote to the Manager of the Respondent’s Store. The letter stated that the Claimant had been subjected to a “traumatising incident” and sought assurances that “going forward that the appropriate protection will be afforded to her in the workplace from repeat or like incidents”. The Manager responded by advising that it was the Respondent’s policy that all employees should be free from any activity of behaviour that adversely affects the dignity of people in the workplace and assured that the Claimant would be afforded the same protections as is afforded to all of the employees within the Respondent’s organisations.
Thereafter a series of letters issued from the Claimant’s solicitors. These letters referred back to the matters set out in the original letter and The Manager responded that he had replied to the issues raised in full. The Company and its HR Manager engaged fully with both the Complainant, both informally and formally, and her Solicitor over the period of the Complainants absence to understand her issues and see how the Complainant could return to work. The Human Resources Manager set out that the matter had been investigated when the Claimant had raised a grievance and that a sanction had been applied. The Human Resources Manager advised that the Claimant would be afforded the same protections as afforded to all employees with the Respondent.

The Complainant met with the Company Medical Advisor who concluded after a number of meetings with the Complainant that there was no likely return to work in the near future.
The Respondent considered that the matter raised by the Claimant had been dealt with at the time the grievance was addressed and the appropriate disciplinary sanction applied to the other staff member, but clearly the Claimant’s solicitor was dissatisfied with the situation. The Claimant’s solicitors made no specific suggestions or requests regarding the ‘protection’ that was sought for the Claimant but continued to seek a ‘response’.
By way of letter dated 19th December 2012, The Human Resources Manager again set out the steps that the Respondent had taken to address and deal with the matters raised by the Claimant. She advised that
“Your client has said that she did not want the person against whom she made the allegation and for whom a disciplinary sanction was issued to be dismissed, She also outlined to me in a recent phone call on 22nd October 2012 that she just wanted her job back.
I outlined to her that we had taken all possible measures open to us on this matter. I also reiterated to her that the company would welcome her return to work which I said was available immediately for her to return to.
In the absence of your client being able to articulate what more she believed the company should be doing regarding the matter then I fail to see the purpose or benefit of further similar correspondence on this matter”
The Claimant’s solicitor responded again to this letter but no proposals or suggestions were articulated regarding what was sought or required on the Claimant’s behalf.
No further information was given by the Claimant’s own medical advisors in relation to what requirements might assist the Claimant in returning to work.
The Respondent then engaged its solicitor to review the matter in an effort to try and get a resolution on the issue. The Respondent’s solicitor wrote setting out what considerations had been given to how the Claimant could return to work and discussed the limited options available due to the size of the Respondent’s store and that no guarantee could be given as to the Claimant never encountering the other staff member. The Claimant was asked to put forward any possible suggestions or proposals that might assist in the resolution of the matter so that same could be considered and assessed. No response was received and a reminder was sent on 14th April 2014 advising that without proposals the Respondent “will have no alternative but to assess this matter without the benefit of your proposals”.
The Claimant’s solicitor replied stating “We write to put you on firm and total notice that should our client’s employment with your client is in any way jeopardised by any action taken by your client we will immediately seek injunctive relief”.
The Respondent’s solicitors again wrote on seeking proposals as to what would be required for the Claimant to return to work but no response was received.
A medical examination was arranged for the Claimant with the Respondent’s medical examiners to see what, if any, reasonable measures could be taken to facilitate a return to work. The Claimant’s solicitor sought information as to who the medical examiner would be and this was furnished.
The Claimant was then assessed again by The Occupational Specialist. The Occupational Specialist noted that the Claimant had recently been diagnosed with cardiovascular conditions in addition to her gastro-intestinal issues. He also noted that the treatment previously discussed in 2013 was subsequently offered by the Claimant’s GP but she declined to avail of same. The Claimant advised The Occupational Specialist that there had been no improvement over the past 11 months. He stated:
“It is my opinion based on assessment of this lady that she is not currently medically fit for work. Further treatment options were again discussed with The Claimant and she was advised to discuss these with her GP as well.
It is also unfortunately my view that The Claimant is not motivated to return to work in the future. She declined to avail of medical intervention for her complaint and she also declined an offer of her employer previously to take up a position in another store. The prognosis for a future return to work is therefore in my opinion not favourable”
The Human Resources Manager then met with the Claimant on 7thJanuary 2015 to discuss the Claimant’s ongoing absence from work and the most recent report of The Occupational Specialist. The Claimant advised that she had read The Occupational Specialist’s report but said that she felt he had left out a lot. She said she supposed he was a doctor so there is nothing she could say. The Claimant noted that she had been feeling unwell physically and mentally around the time of the meeting. She also advised she had been experiencing chest pains and was in hospital over the previous summer. She advised she was attending with her own doctors and attending counselling. She said she would like to return to work but she felt that the staff member who had exposed himself was intimidating her and setting back her progress. She advised that she was in contact with the Garda liaison officer and that she was getting counselling to give her confidence to go out on her own. She noted that she had suffered a hernia and other stress symptoms and while she could deal with those she couldn’t leave her house to go to work. The Human Resources Manager noted that the Claimant’s position could not be kept open indefinitely and mentioned the possibility of terminating the employment on grounds of capability.
The Human Resources Manager followed up after the meeting with correspondence, in which she repeated that the Claimant’s position could not be kept open indefinitely and that a final decision would have to be made regarding the position if the Claimant could not return to work. The Human Resources Manager invited the Claimant to submit medical information from the Claimant’s own doctor that she had previously suggested was available, so that same could be taken into consideration.
The Claimant’s solicitor then wrote advising that the documentary information (being a medical report from the Claimant’s own doctor) would be furnished and noted that “we enquire what you have done for the Claimant in terms of her employment since her complaint herein, Our file would reflect very unsatisfactory involvement by The Respondent”. However no suggestions or proposals regarding what might assist a return by the Claimant were put forward.
The Human Resources Manager responded to this letter, again referring to earlier correspondence setting out actions taken by the Respondent since the grievance was first raised. No further response was obtained and no medical reports of the Claimant’s own medical advisors or proposals for resolution of the matter were submitted.
The Claimant was again re-examined by The Occupational Specialist, on behalf of the Respondent in June 2015. The Claimant advised The Occupational Specialist that she felt her symptoms had deteriorated over the previous 9 months. The Occupational Specialist stated:
“It is my opinion based on assessment of this lady that she remains to be unfit for work at this time. Further treatment options were again discussed with The Claimant and she was advised to discuss these with her GP as well. In my view there is no reasonable accommodation at present that would facilitate her return to work at this stage.
It also remains to be my view that, considering her history and progress to date, the prognosis for a future return to work is not favourable. As stated in my previous report The Claimant is not motivated to return to work.”
The staff member who had been the subject of the Claimant’s grievance in 2012, left the Respondent’s employment on 23rd March 2016.The Claimant’s solicitor wrote to the Respondent seeking confirmation that the said employee had left the company and the Respondent’s solicitor confirmed this to be the case by way of letter dated 20th June 2016.
The Respondent’s solicitor referred to the fact that the Claimant had been absent on sick leave for over four years and noted that the most recent medical report stated that the prognosis for a future return to work was not favourable in light of the Claimant’s history and progress. The letter of 20th June 2016 also referred to the Respondent’s desire to find a resolution and a willingness to receive any proposals or information which the Claimant wished to submit. The Claimant was then invited to attend a further meeting with the Respondent to discuss the above and the Claimant’s solicitor confirmed that she would be willing to attend same.
The Claimant met with The Human Resources Manager on 1st July 2016. The Human Resources Manager noted that the other staff member had now left the company and asked if the Claimant now felt she could return to work. The Claimant detailed her health conditions and advised she was under severe stress and “can hardly move outside my door”. She noted she was under the care of a counsellor, a Consultant Psychiatrist and a psychiatric nurse. When asked of the likelihood of returning to work, the Claimant noted she wished to return to work and had done nothing wrong. She discussed feeling that the Respondent had failed in its duty to assist her. The Human Resources Manager advised that the Respondent had written on numerous occasions setting out what had been done to date. The Claimant agreed to be re-examined by the Respondent’s medical advisors and confirmed she would talk to her solicitor about sending on her own medical reports for consideration by the Respondent. The Claimant did not request or suggest any specific assistance that would enable her to return to work.
Thereafter the Claimant’s solicitor wrote again on 4th July 2016 confirming the Claimant’s desire to return to work when medically fit to do so. The Respondent’s solicitor noted by response letter on 9th August 2016 that the Claimant had referred to being treated by a Consultant Psychiatrist and invited the Claimant to submit any further report from this practitioner. The letter concluded with the following statement:
“Please note that our client is endeavouring to ensure it is in full possession of all the material facts concerning your client’s condition in its consideration of whether it can continue her employment or terminate for incapacity”
The Respondent requested that the Claimant undergo a further examination by a Occupational Consultant in August 2016. In particular The Occupational Specialist was asked to reassess the Claimant’s ability to return to work in light of the fact that the other employee was no longer working in the workplace. He was also asked to give his view regarding any reasonable accommodation that could be made at that time.
The Occupational Specialist examined the Claimant on 26th August 2016. She advised him that she had been availing of treatment options over the past year and was under the care of a consultant. She advised she was finding the interventions helpful but reported ongoing daily symptoms. The Occupational Specialist stated as follows:
“The Claimant also tells me she met with her employer two months ago but that she does not intend to return to work…
It is my opinion based on assessment of this lady that she is not currently medically fit for work. She is receiving appropriate medical intervention under the care of a consultant at present but she remains symptomatic.
Considering her history and progress to date it is also my view that the prognosis for her future work is guarded and that reasonable accommodation at work would not facilitate her return to work at this stage.”
The Claimant’s solicitor then sent a note, prepared by the Claimant, in respect of the medical attendance with The Occupational Specialist. This note included the following:
“(A Doctor) then said after examining that in his opinion I was not ready for work at least a year or more if ever to work for the Respondent again. He asked me how I feel about this and I said I have no trust in them due to what has happened to me. Sure they said they could not protect me in corridors of the canteen before. I said would you send someone in there to be like me for (the Doctor) then said he had a letter from the Respondent. It said (the original staff member) was no longer employed there anymore. I said amn’t I worse off now as he is on the loose to do anything to me so I go out even less for fear of him turning up.
(The Doctor) also asked did I meet my employers. I said about 2 months ago wanting to make me return to work. I told her (presumably The Human Resources Manager) it would depend on medical advice for me.”
By way of letter dated 20th September 2016, the Respondent then invited the Claimant to attend a further meeting and stated the following:
“I refer to your ongoing absence due to illness. As you know you attended a medical examination with The Occupational Specialist on behalf of the company on 26th August 2016.
A copy of The Occupational Specialist’s report of that date was sent to your solicitor (copy also enclosed with this letter) and I requested that he revert with any comments on your behalf. Yesterday I received a statement from you via your solicitor by email regarding your visit with The Occupational Specialist. Please note that in no way has the company been wanting to make you return to work in circumstances where you are certified unfit to do so.
I wish to meet with you again in light of The Occupational Specialist’s report and your ongoing absence on grounds of illness where the doctor has found that the prognosis for your future return to work is guarded and that reasonable accommodation at work would not facilitate a return at this stage.
Please confirm that you will attend a meeting at 11.30am on Wednesday 28th September in X Hotel.Please note that following this meeting a decision may be taken to terminate your employment on grounds of incapacity. As per previous correspondence the company is and has been endeavouring to give you ample opportunity to make any submissions or present any evidence in relation to why it should retain you in employment. If you wish to submit any medical reports from your own treating doctors or any other evidence please do not hesitate to send these to me.”
Further correspondence ensued between the Claimant’s solicitor and the Respondent’s solicitor where the Claimant’s solicitor advised that any incapacity was resulting from the Respondent’s behaviour and advised that the Claimant wished to be legally represented at the meeting. The Respondent agreed that, although not usually permitted, the Claimant could be accompanied by her solicitor for this workplace meeting. The Respondent also furnished copies of the Management of Attendance procedures by way of letter dated 26th September 2016 and gave further information regarding the meeting, advising that the Respondent wished to give the Claimant a full opportunity to engage with the Respondent and put forward any relevant information prior to a decision being taken as to whether or not to terminate the Claimant for incapacity.
The Claimant and Respondent, together with their respective legal advisors met on 28th September 2016. Full notes were taken at the meeting and circulated thereafter.
During the course of the meeting the Claimant advised that she wished to return to work. The Human Resources Manager advised that she could not return to work until she was medically certified. She noted that the Respondent was awaiting medical reports from the Claimant’s own doctors in this regard for over a year but nothing had been furnished. The Claimant’s solicitor advised that the Claimant wished to return to work but there was no medical evidence available “here today” to support a return to work. The Claimant advised “The doctors say I’m not fit. All doctors. You have to do what a doctor says”. The Claimant spoke about her ongoing symptoms, including sleep disturbance and fear of leaving her home.
The Claimant was asked if there was any reasonable accommodation that could be provided. She spoke about feeling unsafe and that she could not be protected. The Claimant’s solicitor advised that “An imminent return to work is not an option. [The Claimant] is doing everything in [her] power to get fit but she doesn’t feel safe. She is undergoing treatment”.
The Claimant’s solicitor confirmed that there was little benefit in continuing and The Human Resources Manager advised that a decision would be taken and confirmed. She advised that even if the Claimant were to be dismissed for incapacity this would not prevent a future return to work with the Respondent. The Human Resources Manager queried whether the Claimant would like to submit any further medical evidence in advance of a decision and was advised by the Claimant’s solicitor that there would be no merit to this. The meeting was then concluded.
Following the circulation of the meeting notes, the Claimant’s solicitor wrote noting that the notes had been reviewed and stating:
“We wish to comment that firstly we do not wish to rule out producing medical evidence into the future in support of our client’s return to work and secondly that the notes received are an abbreviated version of the grievances aired by our client. We appreciate that our client gave lengthy detail regarding her deep distress following the incident however it should be noted that this has not been included in full.
Our client was very taken aback by the suggestion of early retirement and did comment that she was not ninety and deeply offended by the suggestion. Our client is very clear that it is her wish to return to work”.
Following the meeting of the Claimant and Respondent, on 28th September 2016, the Respondent reviewed the Claimant’s file and ultimately made a decision, in line with the relevant procedures, to terminate the Claimant’s employment.
By way of letter dated 26th October 2016, the Respondent wrote to the Claimant as below:
“Dear (The Claimant)
Further to our meeting on Wednesday 28th September 2016 at (X Hotel ) at which (x) the Solicitor representing the Company and(Y) the , Solicitor representing you) were also present, I am writing to confirm the outcome of the meeting.
As you know the meeting was held to discuss your ongoing sick leave from the company since June 2012 and to give you the opportunity to make any submissions for my consideration in the context of your long-term incapacity and your ongoing employment with the company.
You have been on sick leave for over four years. During that time, we have continuously asked you and your solicitor to submit medical information from your own treating doctors but despite this it has never been furnished to us. During your sick leave, we have received four medical reports from the Specialist in Occupational Medicine at the request of the company. All medical reports have indicated that a prognosis for return to work was “not favourable” / ”guarded”. The Specialist has examined your capacity to work and has continuously concluded that you are unfit to return to work and that no measures could be taken to facilitate a return.
It is clear at this point that you are no longer fully competent to undertake and capable of undertaking the duties of your role within the company. I have endeavoured to explore whether appropriate measures could be taken by the company to assist you to return to work, these included putting forward the option of a transfer to an alternative store and giving consideration to adapting rosters and work schedules.
I have sought input from you throughout your sick leave in correspondence and in meetings with you and at all times offered you the opportunity to put forward any measures which you or your medical advisors feel the company could take.
I have endeavoured to obtain all material facts concerning your condition, obtaining medical reports as outlined above, meeting with you to obtain your feedback in relation to these reports and continuously requesting the submission of any medical evidence from your own treating doctors.
The company cannot hold positions open indefinitely where a significant period of sick leave has passed and there is no indication that any form of return to work can be facilitated.
It is with regret therefore in light of the foregoing that this letter constitutes notice that your employment with The Respondent will terminate on 23rd November 2016 on grounds of incapacity.
In accordance with current legislation you will be paid in lieu of untaken annual leave under separate cover.
Please also note that as stated in the company’s Management of Attendance policy, should you make a recovery in the future an ill health dismissal will not be detrimental to your return to work with the company.
You have the right to appeal against this decision. If you choose to appeal, you should contact the Regional Head of HR within 10 working days of receiving this letter, outlining your reasons for appeal. Please ensure that you include your home address on any correspondence.
Yours etc”.
No appeal was received and on 15th November 2016, The Human Resources Manager wrote to the Claimant, with a copy sent to her solicitor, confirming that as no appeal was lodged in respect of the decision to terminate the Claimant’s employment, a P45 would be issued and there was no further requirement to submit medical certificates to the (the Claimants place of work) store going forward. The Claimant’s solicitor responded by letter the following day, 16th November 2016, confirming that “following the notification to our client that her employment is to terminate on 23rd inst. we are preparing our client’s application for unfair dismissal and will be submitting same to the Workplace Relations Commission in due course.”
Thereafter the Claimant’s solicitor sent a copy of the Claimant’s within application to the Workplace Relations Commission to the Respondent’s solicitor on 7th December 2016.
In light of the above factual background to the Claimant’s termination, the Respondent strenuously refutes any claim of unfair dismissal.
In this case the Claimant has suffered ongoing ill health which has prevented her from carrying out her work duties for well over 4 years prior to her dismissal on the grounds of incapacity. The Respondent’s HR Manager, has regularly engaged with the Claimant throughout her ill health absence. The Human Resources Manager met with the Claimant periodically to discuss her ongoing ill health and explore the possibility of a return to work. The Respondent made suggestions that might assist a return to work, in light of the Claimant’s complaints, and this included a transfer to another store. This offer was rejected. The Respondent made numerous requests for proposals and/or suggestions from the Claimant as to what might assist her in returning to work but no proposals were put forward.
The Respondent also arranged for four separate examinations by The Occupational Specialist, Occupational Health Specialist. The Occupational Specialist continuously certified the Claimant as unfit for work at the time of each examination and his prognosis, in each report, was that any likelihood of the Claimant’s returning to work was guarded. The Occupational Specialist was specifically asked by the Respondent to consider, during the examination, whether there was anything that could be done by the Respondent to accommodate the Claimant’s return to work, but The Occupational Specialist advised that in his view there was no reasonable accommodation that might facilitate a return to work.
The Claimant, and her solicitor, were furnished with the above medical reports of The Occupational Specialist and both The Human Resources Manager and the Respondent’s solicitors set out in correspondence a willingness to receive and explore any proposals that might be put forward on behalf of the Claimant to facilitate a return to work. No proposals were put forward and no medical evidence, countering The Occupational Specialist’s reports were put forward on behalf of the Claimant.
The Respondent’s usual practice in relation to employees on long term sick leave is that unless a return to work date is confirmed as likely in the short term, an employment will terminate after 12 months’ sick leave absence. In this case, every discretion was afforded to the Claimant to keep her employment continuing despite her ongoing ill health absence. However, after a 4-year absence, the Respondent could no longer indefinitely continue the Claimant’s employment. The Respondent endeavours to operate all policies and practices fairly across the Company and it is not feasible or realistic to indefinitely maintain employments where the employee is no longer capable of returning to work and performing his/her duties.
Prior to taking any decision to dismiss the Claimant on the grounds of incapacity, the Claimant was afforded every opportunity to present reasons why the employment ought to be continued. The Claimant was advised that the Respondent’s medical examiner had formed the opinion, following repeated examinations, that the Claimant remained unfit for work and the likelihood of the Claimant being fit to return to work in the future was guarded. The Claimant was asked to furnish other medical evidence from her own doctors, if available, but the Claimant did not do so. The Respondent therefore was obliged to take The Occupational Specialist’s views as unchallenged and as being an accurate assessment of the Claimant’s current, and likely future, fitness to work.
Prior to taking any decision to dismiss the Claimant on the grounds of incapacity, the Claimant was afforded every opportunity to present proposals or suggestions as to what might assist her return to work. As an employer, the Respondent is obliged to provide ‘reasonable accommodation’ under the Employment Equality Acts and the Respondent would gladly have taken whatever reasonable measures would have assisted the Claimant’s return to work. The Claimant, and her solicitor, were repeatedly asked to provide information or proposals of any reasonable accommodation that could assist a return to work but no proposals or suggestions were put forward. The Respondent also asked The Occupational Specialist to consider whether the Claimant might be facilitated in returning to work if reasonable accommodation were made, and if so what reasonable accommodation could assist. The Occupational Specialist advised that in his view no reasonable accommodation would assist or facilitate the Claimant’s return to work.
Prior to a final decision being taken in this case, the Claimant was invited to meet with The Human Resources Manager to discuss the situation. The Claimant, through her solicitor, was provided with a copy of the relevant Management of Attendance policy in advance of the meeting and the Claimant’s request to be accompanied by her solicitor was agreed. It ought to be noted that it is highly unusual for the Respondent to permit an employee to be accompanied by a solicitor during a workplace meeting but in the Claimant’s case, discretion was afforded to try to assist the Claimant in dealing with the issues at hand. The Claimant was also notified in writing in advance of the meeting that the purpose of the meeting was to consider the Claimant’s long term absence in light of the medical reports and she was advised that a decision to terminate the Claimant’s employment on grounds of incapacity may be taken after the meeting.
The Claimant was unable to offer any response to The Occupational Specialist’s findings that she was medically unfit for work and that the likelihood of a future return was guarded. The Claimant was unable to put forward any proposals or suggestions as to what the Respondent could do to facilitate a return to work.
The Respondent, having considered the matters discussed at the meeting and the medical evidence at hand, made a decision that the Claimant’s employment could no longer be continued in light of her inability to work and lack of any likelihood of a return date in the foreseeable future. The Respondent wrote to the Claimant advising of this decision and assuring her that once her health improved the ill health dismissal would not prevent her from successfully applying again for a future position with the Respondent company.
Of note the Claimant was furnished with the reasons why the decision to terminate the employment was taken and was offered 10 days in which to appeal that decision. The Claimant chose not to appeal the decision.
The Claimant’s dismissal arose as a result of the Claimant’s incapacity to carry out her work. Such a dismissal in not a contravention of the Unfair Dismissals Acts 1977 to 2005.
As per Section 6(4):
(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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

However, in addition to the provisions of the Unfair Dismissals Acts an employer is required to make ‘reasonable accommodation’ for employees who suffer under a disability. An employer cannot rely on section 4(a) where the employer had failed to offer reasonable accommodation that would enable that employee to be capable to carry out his/her work duties.
Reasonable accommodation is dealt with in the Employment Equality Acts 1998-2015. The relevant section is section 16, Employment Equality Act 1998, which is amended by Equality Act 2004, Section 9 by the insertion of the following:
·

9.—Section 16 (nature and extent of employer's duties in certain cases) of the Act of 1998 is amended—

(a) by the substitution of the following subsection for subsection (3):

“(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer's business, and

(iii) the possibility of obtaining public funding or other assistance.”,

And

(b) in subsection (4), by deleting the definition of “providing”, by substituting “body.” for “body;” in paragraph (c) of the definition of “employer” and by inserting the following definition:

“‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”.

In this case the Claimant is not capable of performing the work for which she was employed by the Respondent to do. The Respondent has monitored the Claimant’s ill health absence of an excess of four years and the Claimant’s health has not improved so as to allow a return to work be a realistic foreseeability. The Respondent has repeatedly sought out whether there were any appropriate measures that could be taken that might assist the Claimant to overcome her disability and return to work. The Occupational Specialist, on examining the Claimant has advised there is no such measures. The Claimant has failed to make any suggestions or proposals in regard to same. The Respondent, having regard to the Claimant’s correspondence, suggested a transfer to a different store but this offer was rejected. The Respondent therefore considers that there is no reasonable accommodation that could or should be made in this case to assist the Claimant’s return to work.
The Respondent clearly advised the Claimant of the information that the Respondent was considering prior to making a decision regarding the termination of her employment. The Claimant did not provide additional medical information, and so The Occupational Specialist’s evaluation was taken as unchallenged. The Claimant repeatedly advised that she was keen to return to work but was unable to establish how or when then would be possible. The Respondent offered the Claimant every opportunity to provide additional information in writing and also met with the Claimant, accompanied by her solicitor, to discuss the situation before any decision was made.
The Respondent was fully satisfied having met with the Claimant and reviewing all information to hand, that the Claimant is not capable of performing the work required and therefore terminated the employment on grounds of incapacity.
The Claimant was offered an appeal and elected not to appeal the decision to dismiss her.
The Claimant herein commenced sick leave in June 2012 following a workplace incident in respect of which she raised a grievance, that was fully addressed and dealt with by the Respondent. The Claimant has not returned to work and has not been certified by any medical practitioner as being fit to work since that time.
The Respondent engaged with the Claimant in an attempt to try and facilitate a return to work by discussing the ill health absence with her and querying if there were any measures that could be taken by the Respondent that would assist her return. The Claimant has not put forward any suggestions or proposals in this regard. The Respondent has had the Claimant medically examined on four separate occasions by the Occupational Health Specialist, who has confirmed that at all examinations the Claimant is unfit for work and that the prognosis for a return to work is not favourable in light of her progress and history to date.
The Respondent has complied in full with all legislative principles and obligations and with its own Management of Attendance policy in coming to a decision to terminate the Claimant’s employment.
The Respondent submits that the termination of the Claimant’s employment was a fair dismissal as per Unfair Dismissals Act 1977, section 6(4)(a) and further submit that the Claimant is not entitled to re-engagement, re-instatement or compensation.

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. The Relevant Section of the Act to the claim is Section 6 which 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.
(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(b) the religious or political opinions of the employee,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(e) the race or colour of the employee,

(f) the pregnancy of the employee or matters connected therewith, unless—

(i) the employee was unable, by reason of the pregnancy or matters connected therewith—

(I) to do adequately the work for which she was employed, or

(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and

(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or

(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.”

None of the Grounds set out in Section 6.2 above were advanced at the Hearing and therefore the decision on whether the dismissal was fair or unfair is determined by Section 6.1 which states that a dismissal is not unfair if there are substantial grounds for the dismissal.

It is an Adjudicators role to consider all the facts, see if the grounds put forward by the Respondent were substantial grounds to justify the dismissal and see what a reasonable employer in the same position would do in the same circumstances. It is also our role to see have fair procedures been applied to the dismissal and disciplinary/representation process. In this case the issue of fair procedures is not in dispute so the core issue is if “there were substantial grounds justifying the dismissal”.

In Foley V Post Office (2000) CR1283 as stated by Mummery L.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in 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 light of the results of that investigation, is a reasonable response”.

He also relied upon the decision of the Court of Appeal in Anglian Home Improvements Limited v Kelly (2005) ICR 242 where again Mummery L.J. held “The first 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 Ltd V Swift (1981) IRLR91 para 11 cited by Mr Laddie. The correct test is; was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal is 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 to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him”.

In essence this case revolves around three things;

a) The circumstances revolving around the Complainants absence from work for over four years

b) The Justification of the termination at the time of termination and

c) The possibility of the Complainant returning to work any time soon when the dismissal decision was taken by the Respondent.

In the above three issues, while highly relevant to the Complainant, the circumstances which allegedly caused the Complainant to be out of work are not substantially material to the decision on whether she was fairly or unfairly dismissed. The question to be addressed is did the Respondent have “substantial grounds justifying the dismissal”.

In this case the Respondent issued a Final Written Warning to the Employee involved in the incident after an Investigation. In the letter dated July 2nd 202 to the Respondent on behalf of the Complainant it was stated “ the Complainant did not and does not seek the dismissal of that individual” (the alleged perpetrator). Therefore from a disciplinary perspective the Respondent went as far as it felt appropriate against the alleged perpetrator taking all the circumstances into account.

The Complainant was out of work for four years and there was no real likelihood of her returning to work in the foreseeable future based on the medical evidence and the Complainants own evidence at the Hearing. The Company Specialist confirmed this and there was no contradictory medical evidence to say she could return to work soon. The Respondent in dismissing the Complainant stated that the opportunity to reply should she wish would be considered. Whether this is a likely prospect or not given all the circumstances in this case is not for the Adjudicator to address. The fact is the “opportunity” has been granted to the Complainant to reapply for her position in the future and indeed this opportunity is enshrined in the Company Handbook.

I find that the Respondent had substantial grounds to dismiss the employee on the basis of the length of time she was absent from work and the prospect of her returning to work in the near future was very slim to nil. The Respondent had taken disciplinary steps against the alleged perpetrator of the incident, whose continued presence at the place of work may have contributed to the Complainant not returning to work and The Respondent went as far in that process, and after an investigation and disciplinary process as it saw reasonable, given the Complainants request not to dismiss the alleged perpetrator. The alleged perpetrator is no longer employed by the Respondent and the Complainants justification for not returning after he had left does not meet the reasonableness test. Also the Complainant was offered alternative employment in another store and given the size of the store where they both worked. It was impossible for the Respondent to put in place a mechanism for two co-workers not to meet. The Respondent issued the alleged perpetrator with serious disciplinary action and to move him to another store would have meant a “double punishment”. With regard to the Complainants lack of trust in management this really was not proven to any great extent as being a solid well founded logic and may be more an issue for the Complainant than a reality.

Taking all the above into account, I find that the dismissal was fair as the Respondent had “substantial grounds” as per the Act for dismissing the employee and the claim is not well founded as a result.

Dated: 12th June 2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Frustration of Contract