Complainant

Respondent

Anonymised Parties

Retail Assistant

Department   store

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-00010858-001

18/04/2017

The Complainant commenced employment as a sales   assistant in the Respondent’s store on the 2^nd of April 1997.

During April 2015, the Complainant injured his   back.

The Complainant was on certified sick leave from   the 13^th of April 2015 until his employment was terminated by the   Respondent on the 20^th of October 2016.

The Complainant’s case is that he was absent from   work on certified sick leave from April 2015.   He complied with all the requests made by the Respondent to attend   various meetings to keep them appraised of his recovery.

The Complainant submitted a letter from his GP   dated the 26^th of July 2016 which indicated that the Complainant

“should be fit to return to   work between three and six months”.

Despite same, the Respondent summonsed the   Complainant to a meeting on the 25^th of August 2016. During that meeting, it was communicated to   him that a decision had been made to terminate his employment to take effect   on the 26^th of October 2017.

A letter of appeal was submitted on the 26^th   of August 2016 by the Complainant. No   appeal hearing was held. There was an   exchange of correspondence between the Complainant’s solicitor and the Respondent   up until November 2017. The   Complainant’s solicitor made a data access request. The information was furnished to the   Complainant’s solicitor by email on the 9^th November 2016. The Solicitor replied by email on the 10^th   November 2016 that he couldn’t open the attachments. The Complainant heard nothing further from   the Respondent. A complaint was lodged   with Workplace Relations Commission on the 18^th of April 2017.

The Complainant’s preferred remedy was   reengagement.  

The Complainant has been in receipt of social   welfare (illness benefit) from the date of his dismissal to the date of the   hearing. He produced a letter from the   Department of Social Protection confirming same.

At the hearing the Complainant submitted a letter   from his GP certifying that the Complainant had reached a plateau with his   recovery and was now fit to return to light duties. His GP was confident that he would be able   to continue to work without any help or cushions, if he avoided heavy   lifting. This letter was dated two   days before the hearing took place.

The Complainant was on long term sick leave and   had submitted a number of medical certificates for the period of his   absence. This medical certificate   cited “acute back sciatica”, “acute back pain” and “acute sciatica”.

The grocery manager in the store scheduled   regular meetings with the Complainant with a view to establishing how his   condition was progressing and when he might be fit to return to work.

These took place on the 18^th of June   2015, 27^th of August 2015, 8^th of October 2015, 17^th   of February 2016, 31^st of March 2016, 6^th of May 2016,   19^th of May 2016, and 7th of July 2016.

Throughout the meetings, the Complainant advised   that his back was in a bad way. An MRI   scan had shown three ruptured disks at the base of his spine. He was attending physiotherapy and his GP   on a weekly basis. He was on pain   medication. He was on a waiting list   to see an orthopaedic surgeon, a neurologist and later a rheumatologist/pain   specialist. Throughout the process the   Respondent’s view was that they had been fair in holding his position open   but could not do so indefinitely and wanted some indication of a return to   work date.

The Complainant was not in a position to indicate   when he would be able to return to work.  

On the 26^th of July 2016, the   Complainant’s GP wrote a letter which was submitted to the Respondent. It was noted that the Complainant was   waiting for pain relieving injections from a local hospital and also waiting   to see a rheumatologist. The GP   expected that these appointments would take place shortly. The GP set out that the Complainant should   be fit to return to work between three to six months.

At the meeting of the 17^th of August   2016, the Respondent advised the Complainant that three to six months pending   injections was not a definite return to work date. His position could not be held open   indefinitely and that it needed a definite return to work date. It advised the Complainant that it was   considering terminating his employment.   The Complainant advised that he did not want this to happen he wanted   to return to work for both financial as well as personal wellbeing   reasons.

On the 25^th of August 2016, a final   review meeting took place. Again, the   Complainant was asked if he could provide a return to work date. He advised the Respondent he couldn’t.

The grocery manager of the shop adjourned the meeting   to consider matters. He resumed the   meeting and advised the Complainant that he had decided to terminate his   contract of employment as he had been absent on sick leave for the past   sixteen months. There had been eight   meetings over this period and there was no indication of a specific return to   work date. The manager’s position was   that he had made it very clear to the Complainant’s that he required a   definite return to work date. The   failure to provide this left him with no alternative but to terminate his   contract of employment.

The Respondent advised the Complainant of his   right of appeal in written form to the textiles manager of the store.

The Complainant’s solicitor wrote on the 26^th   of August 2016 setting out some grounds of appeal and requesting minutes of   all review meetings conducted with the Complainant. The letter stated that these were being   sought so that “further and more detailed submissions can be made in advance   of our client’s appeal”.

When a written authority was received by the   Respondent to release the requested documents to his solicitor, they were   released however neither the Complainant nor his solicitors sought to pursue   the appeal.

Counsel for the Respondent asserted that the dismissal was reasonable   in all the circumstances. He submitted that in circumstances where the   Complainant had been absent from work for eighteen months, the decision to   dismiss in this case was reasonable.    He submitted that it was not the   Adjudicator’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" as set out in the case of Elaine O’ Brien   -v- Dunnes Stores (UD 1714 April 2017) and the cases relied upon in that   decision.

Quoting Mummery L.J. (at p. 1295) the Court of Appeal in Foley v   Post Office [2000] ICR   1283 who found :-

"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 appeal against, the merits of the employer's decision to dismiss. The employer, 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 further relied on Noonan J. in Bank of Ireland v Reilly [2015] E.L.R. 229, who held the question is   “whether the decision to dismiss is within the range of reasonable responses   of a reasonable employer to the conduct concerned”.

He also relied   on the High Court decision of Lardner J. in Bolger v   Showerings (Ireland) Ltd [1990] E.L.R. 184 :

“In this case it was the   ill-health of the plaintiff which the company claimed rendered him incapable   of performing his duties as a forklift driver. 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 employee   received fair notice that the question of his dismissal for incapacity was   being considered; and

(4) That the employee was   afforded an opportunity of being heard.”

At no stage was a likely   return to work date furnished.

The question arose whether   the company was under an obligation to await the results from Cork Regional   Hospital. The company was not so obliged in the circumstances of this case.   If this had been the first or one of a very few instances of absence, a   different view might be taken, but in the light of the case history, the   company was entitled to say that Mr Bolger himself thought he was unfit to   return to work. Different considerations might well apply if the company and   Mr Bolger 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, and employee would be   capable of carrying out the tasks for which he had been employed”.

The Respondent further argued that the medical report of the 26^th of   July 2016 was too vague and that it did not contain a definite date of return   to work.  

The Unfair Dismissals Act 1977 (as amended) provides as follows:

“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….

(6) In determining for the purposes of this Act   whether the dismissal of an employee was an unfair dismissal or not, it shall   be for the employer to show that the dismissal resulted wholly or mainly from   one or more of the matters specified in subsection (4) of this section   or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection   (1) of this section, in determining if a dismissal is an unfair   dismissal, regard may be had, if the ..Adjudication officer.., as the case   may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the   conduct (whether by act or omission) of the employer in relation to the   dismissal …

(a) re-instatement by the employer of the   employee in the position which he held immediately before his dismissal on   the terms and conditions on which he was employed immediately before his   dismissal together with a term that the re-instatement shall be deemed to   have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee   either in the position which he held immediately before his dismissal or in a   different position which would be reasonably suitable for him on such terms   and conditions as are reasonable having regard to all the circumstances, or

(c)(i) If the employee incurred any financial   loss attributable to the dismissal, payment to him by the employer of such   compensation in respect of the loss (not exceeding in amount 104 weeks’   remuneration in respect of the employment from which he was dismissed   calculated in accordance with regulations under section 17 of this Act) as is   just and equitable having regard to all the circumstances …

(2) Without prejudice to the generality of subsection   (1) of this section, in determining the amount of compensation payable   under that subsection regard shall be had to—

(a) the extent (if any) to which the financial   loss referred to in that subsection was attributable to an act, omission or   conduct by or on behalf of the employer,

(b) the extent (if any) to which the said   financial loss was attributable to an action, omission or conduct by or on   behalf of the employee,

(c) the measures (if any) adopted by the employee   or, as the case may be, his failure to adopt measures, to mitigate the loss   aforesaid …”

Whether the   employer has demonstrated that there were substantial grounds justifying the   dismissal is to be answered by applying the objective standard of the way in   which a reasonable employer, in those circumstances and in that line of   business, would have behaved.

The insertion   of a new subs. (7) into section 6 reinforces the concept of procedural   fairness which has been developed since the Act's enactment and which   required that the employer establish not only that it had substantial grounds   justifying dismissal but also that it followed fair and proper procedures   before dismissal.

  The decision to dismiss has been taken and my   function is to test such decision against what I consider the reasonable   employer would have done and/or concluded.

This is a case which must turn upon its   particular facts. I find that the   facts of this case are different from the Bolger v Showerings (Ireland) Ltd and O’Brien –v- Dunnes Stores cases quoted above.

The Complainant had submitted a certificate from   his GP on the 26^th of July 2016 which indicated that the   complainant “should be fit to return to work between three to six   months”. The medical evidence from the   Complainant in the Bolger and O’Brien cases was not in a position to indicate   when if at any time, the complainants were in a position to return to   work.

The Respondent’s view is that the Complainant   should be in a positon to provide a definite return to work date. When the Complainant was not in a position   to give a definite return to work date, they decided it was reasonable to   terminate his employment.

I reviewed the Complainant’s sick leave policy in   their staff handbook. There is   reference in this to the carrying out of an independent medical   assessment. This independent   assessment was at the company’s discretion.     The policy contained a paragraph which set out that employees who are   absent on long term illness may have their employment terminated.

I note in the Berber v Dunnes   Stores [2009] 20 ELR 61 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 …………unless there is a good reason to think the contrary.    

Having considered all the evidence both written   and oral presented to me at the hearing of the case, I find that the   Respondent did not behave as a reasonable   employer, in the circumstances and in that line of business of the   Respondent, would have behaved. Having received an indication of a possible   return to work date through the doctor’s medical certificate, the Respondent   should have utilised its discretion as per its sick pay policy to have the   Complainant independently assessed to ascertain if the suggested time frame   for return to work between three to six months was a reasonable prospect or   not.

Accordingly, I find that this failure on the part   of the Respondent renders this dismissal unfair in the spirit and context of   the Unfair   Dismissals Act, 1977 as amended,   and I so determine.

As regards the remedies available to me to award   to the Complainant in the complaint form the Complainant selected all three   options of redress, reinstatement, reengagement and compensation. In the Complainant’s written submission,   compensation was the preferred remedy however at the hearing of the case, this   was amended to reengagement.

The Respondent was opposed to reengagement in   light of the medical report obtained and the context of the Complainant’s   personal injury claim from a consultant orthopaedic surgeon dated 1^st   of March 2017.

At the hearing date the Complainant provided to   both me and the Respondent for the first time, a medical report indicating   that the Complainant was now fit to return to light duties. This was dated two days before the hearing   date.

I have considered the three options of redress   and find that compensation is the most appropriate method of redress.

I find that the complaint is well founded.

As the Complainant was not in a position to work   up to two days before the hearing date and mitigate his loss due to his   illness, I am limited in the award that I can give to the Complainant pursuant to with Section 7 (1)(c)(ii). No evidence was adduced as to future loss of   income. In the circumstances, I am   awarding the Complainant 4 weeks remuneration which amounts to €2,270.40   gross.

procedural   fairness, long term illness, medical certificate, return to work date