Complainant

Respondent

Anonymised Parties

A Harvesting employee

A Food Producer

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-00005178-001

14/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00005178-002

14/06/2016

The complainant commenced employment with the respondent on May 22^nd 2006 as a harvester.

She was issued with a contract of employment in Russian and in English. This contract states that the hours of work ‘may vary from a maximum 48 hours to minimum 30 hours per week’.

The complainant was on sick leave from 20^th April 2015. Two medical certificates stated that she was unable to attend work due to her daughter having a medical illness for the period April 20^th 2015 to   May 1^st 2015.

From May 2nd 2015 her own certificate stated that she had a neck and shoulder injury or a medical illness.

The complainant attended a ‘long term’ sick meeting on May 10^th 2015 where no return to work date was given to the Company. She failed to attend the next meeting scheduled for May 26^th 2015. But did attend the rescheduled meeting on July 16^th and confirmed that she did not feel any better and was awaiting the results of X-rays.

She was then referred to the respondent’s Occupational Health Specialist which she attended on September 2^nd 2015. The Occupational Health Specialist confirmed that she was unfit to return to duties, was also unfit to undertake modified duties and would be unfit to return within the next three months.

Over the next three months the complainant failed to attend four meetings (all 2015, September 30^th, October 27^th and November 3^rd and 12^th). She was also written to on September 14^th as she failed to submit a sick note in line with Company policy.

On December 1^st the complainant attended a long term sick meeting where she confirmed that she understood, and agreed with the OH report and was unable to provide a return to work date.

On December 8^th, the Company wrote to the complainant as she again failed to submit a sick note and on December 14^th, wrote again to invite her to attend a meeting to discuss her employment relationship with the Company with a possible outcome of termination.

At this meeting on December 18^th the complainant confirmed that there was no improvement in her medical condition that she was then currently unfit for duty and unlikely to return in the near future. She did not indicate she would be available for work shortly nor request any alternative employment. The Company reviewed all the available information and OH report.

The respondent wrote to the complainant on January 14^th 2016 terminating her employment on grounds of medical incapability with four weeks’ notice. Her employment ended on February 18^th 2016. She was advised of her right of appeal but she did not appeal.

The complainant submitted a sick note on January 23^rd 2016 and the respondent called her to tell her it was no longer necessary as her employment had terminated. The complainant asked that the letter of January 14^th be re-sent (she said she had not received it) and it was sent in March along with her P45. There was no further contact from the complainant.

The respondent says that it followed a fair process in dismissing the Complainant due to medical incapacity. Her absence and inability to provide a return date for work was a fair reason justifying dismissal;

The respondent informed her throughout the process and afforded her a right of appeal.

Regarding the complaint under the Terms of Employment (Information) Act the respondent submitted a copy of the complainant’s contract of employment in her native language which bore her signature.

The complainant says she has been unfairly dismissed because the respondent did not follow fair procedure when it dismissed her.

There had been no ‘fair, full and genuine’ investigation prior to the dismissal and she had not been made aware that a disciplinary process was being initiated against her. A proper hearing did not take place and the respondent failed to adhere to its own procedures.

She did not receive the letter of termination or the indication of her right to appeal until after the appeal date had passed. She only became award of this on delivering medical certification to the company at the end of January.

In respect of her complaint under the Terms of Employment (Information) Act she says she did not get a statement.

The complainant went on sick leave on May 2^nd 2015. Her employment was terminated following a meeting on December 18^th by letter of the following January 14^th, which the complainant says she did not receive.

Between May and December the respondent took steps to keep the absence under review, commencing on May 10^th with a series of meetings five of which the complainant failed to attend. She also failed to comply with the respondent’s requirements (which are standard in most employments) to submit regular medical certification in relation to her illness.

Under the terms of the Unfair Dismissals Act an employer may terminate employment on grounds of incapacity subject to compliance with a number of requirements. This is best summarised in Humphreys v. Westwood Fitness Club. [2004] E.L.R 296

In that case the facts were somewhat different in that a longer term disability was involved but the Labour Court summarised the obligation placed by an employer by section 16 and the nature and extent of the enquiries which an employer should take prior to the dismissal of an employee due to their inability to perform their duties.

The Court stated:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all 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 practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

It will be seen that there is an obligation on an employer to be pro-active and diligent in establishing the nature of any medical condition and, once this is done whether the employee can be accommodated within reason if the original role remains beyond their capability on grounds of their capability.

In my view the respondent comfortably passes this first test, despite the claim by the complainant that no full and fair investigation took place. The facts speak for themselves.

It was pro-active in reviewing the complainant’s continuing state of health, and indeed the complainant’s cooperation with the process left a good deal to be desired, failing to attend five meetings and to submit medical certification.

The complaint about the respondent’s lack of an investigation is somewhat ironic in that context.

The respondent stated in evidence that the complainant at no stage requested alternative employment and that, in any event in the nature of its business it could not offer an alternative.

The critical issue arises from the meeting of December 18^th and what, in particular, the complainant understood its purpose to be.

The letter inviting her to the meeting is dated December 14^th and the complainant says she only received this the day before. The letter says the following about the purpose of the meeting.

‘The purpose of the meeting is to discuss your continued absence from work and to make a decision on your employment status. You have been continually absent from work due to sickness since 20 April 2015’

While the reference to ‘a decision on your employment status’ is not as clear or unambiguous as it should be, the letter is more specific in stating at a later stage;

‘I must warn you that a possible outcome of this formal meeting may be to terminate your employment on the grounds of sickness capability’.

The description of the meeting as a ‘formal meeting’ could also have been more explicit as to its purpose, and a meeting which may result in termination of employment should be described and ‘titled’ in precise terms as that.

However, I find that, read as a whole, the letter should have left the complainant in no doubts as to the meeting’s purpose. The respondent stated that an interpreter was present at the December 18^th meeting and read and translated the letter of invitation to the meeting to the complainant. This obviously included the extract quoted above that a ‘possible outcome’ might be to terminate her employment on the grounds of incapacity

She was advised of her right to be accompanied although in due course the respondent refused to let her husband, who was not an employee, do so. Its reason was that it preferred that a family member would not act as the accompanying person.

The respondent had written an earlier letter, on October 14^th where it also gave a warning to the complainant regarding the fact that she had made no contact with the company since September, including a failure to provide medical certification. This followed a letter on September 23^rd noting that, at that stage the complainant had been off work for five months and seeking an indication of a return to work date.

This correspondence is important in providing context to the complainant’s submission that she did not understand that the meeting on December 18^th would lead to a decision on whether or not she would remain in employment following it. She said she thought the purpose of the meeting related to getting a date for her return to work.

I found the evidence of the complainant to be unconvincing in this regard.

In addition to having the letter in advance of the meeting (not very much in advance, admittedly), as noted above an interpreter read and translated the letter of invitation to the meeting to the complainant.

At that stage the available medical opinion was to the effect that it was not known when the complainant might be fit to return to work. The complainant stated at the December 18^th in response to a question that she agreed with that view.

The complainant did not ask any questions. At its conclusion she was asked if there was anything she was not happy about.

While the requirements of fair procedure place a greater onus by far on an employer to ensure that its processes are procedurally fair, robust and comprehensible a certain elementary responsibility falls on the complainant to raise any questions which may have a bearing on the matter to be decided, or to seek clarification on any aspect of the proceedings which is not clear to her and an interpreter was present at the meeting to assist her in this regard.

It is not credible that she did not understand the import of the very clear reference to the ‘possible outcome’ of the meeting as involving termination. I accept that the respondent took all reasonable steps to ensure that the complainant understood the nature of the meeting.

It seems quite clear that there was no prospect of a change in the complainant’s health status such as would see an early return to work. It is therefore not credible either that the complainant thought, as she claimed, that after the sequence of correspondence, the notice of the meeting and its contents, that after over eight months on sick leave that it was just another review meeting, especially in face of the evidence above.

While the respondent did tell the complainant at the meeting (according to the handwritten note of the meeting) that it would communicate its ‘decision’ it is not clear whether the complainant understood this to mean it would be a decision on the termination of her employment, although I find it probable given the evidence above that she did. Certainly I can put no other construction on that phrase.

I also find it just too much of a coincidence to be credible that the letter terminating her employment mysteriously failed to arrive at the address to which all previous communications to her were successfully delivered.

On balance, and having regard to all the circumstances I find that the actions of the respondent fall sufficiently within the boundaries of what is required to make the termination a fair one.

I also find that the respondent complied with the requirements of the Terms of Employment (Information) Act. 1994.

I do not uphold either complaint CA-00005178-001 or 002 and they are both dismissed.

Dismissal, incapacity, fair procedure, Terms of Employment