ADJ-00016428

Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

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-00021277-001

22/08/2018

The complainant commenced with the company in April 2004. He worked as a security officer and was paid in accordance with the Employment Regulation Order for the security industry, which at the time of his dismissal, was €11.05 per hour.

When he was at work on the evening on January 12th 2016, the complainant was assaulted by a member of the public who he was trying to move away from the premises he was guarding. He fell and suffered a serious injury to his back and has not been able to return to his job. He was dismissed on March 9th 2018, and he complains that his dismissal is unfair.

Where an employee is absent due to an injury on duty, the respondent company has a specific policy that provides that wages may be paid for up to two years. The HRBP who attended for the respondent said that the complainant was paid from January 12th 2016 for two years, despite some reservations about how he handled himself immediately after the incident.

On October 3rd 2017, the complainant attended for an assessment by the company’s occupational health consultant.   In his report of October 5th, the consultant stated:

“In my considered opinion, this gentleman is unfit for work.

“Taking into account the severity and duration of his symptoms, in my opinion it is unlikely this gentleman will be fit to resume his work as a security officer for the foreseeable future. It is difficult at present to determine what accommodations or alternative role would be considered appropriate as he has severe pain even whilst sitting.”

On October 27th, the complainant attended a meeting with two members of the respondent’s HR team. He was accompanied by his wife. The notes of the meeting were presented in evidence and the complainant was informed that his injury on duty pay (IOD) would be paid until January 2018. It is evident that there was some discussion about sick pay being paid when IOD expired. The notes also record that the complainant said that he wanted to return to work.

On December 14th, the complainant attended a follow-up meeting and this time, he was accompanied by his union representative. The HRBP said that, before this meeting, a clear indication was given to the complainant and his union representative in a letter that, having received the medical consultant’s opinion, and in view of the length of time that the complainant had been absent, they intended to terminate his employment. At the meeting, the complainant raised the fact that his IOD had been stopped at the end of November. He was informed that a new policy had been agreed with the union which resulted in the number of weeks for which IOD would be paid being reduced from 104 to 96 weeks.

At the end of the meeting, the union representative informed the HR team that they would appeal the decision to terminate the complainant’s employment.

An appeal meeting was held on January 3rd 2018. The complainant said that nothing had changed in respect of his health and he remained unfit for work. He raised the issue of his IOD having ceased in November when it had been his understanding that he would be paid until January. The meeting concluded with the HRBP informing the complainant that his employment would be terminated due to incapacity, as he had been absent for two years and there was no indication of when he would be able to return to work. The union representative asked the company to consider full payment of the complainant’s IOD until January 15th 2018, payment of his accrued annual leave and the possibility of consideration for future employment when the complainant is fit to return to work. The company agreed to hold off reaching any conclusion on these matters until the union’s branch secretary was consulted.

On February 7th 2017, a final meeting took place at which the complainant was represented by the assistant branch organiser. It was agreed then that the complainant would be paid IOD up to January 15th 2018, that he would receive pay in lieu of his accrued annual leave and that, if he was to seek employment with the company in the future, that this would be considered if he was passed as medically fit.

A termination agreement presented to the complainant on March 9th 2018 was unacceptable to him, as he was required to sign a full and final settlement of any claims he may have against the company. Although he refused to sign a waiver, he received the payments that were agreed at the meeting on January 15th.

At the hearing on this matter, the complainant and his wife, on his behalf, made a comprehensive submission with regard to the lead-up to the termination of his employment on March 9th 2018.

The complainant went through the meetings before he was dismissed and he is very unhappy with the support provided to him by his union. At the meeting they attended on October 27th, the Hr administrator indicated that he would be paid sick pay for four weeks. As he had long service, his impression was that he would be paid sick pay for six weeks at the end of his IOD. However, all payments ended with the expiry of his IOD.   The complainant and his wife were also particularly upset that the company ceased paying his IOD in November 2017 without notice in the form of a letter or phone call, and that they had to contact the company to find out why. The payment was not reinstated, resulting in financial difficulties at the end of December.

Following the meeting on February 8th 2018, the complainant was offered a payment comprising the outstanding amount of IOD that had not been paid, plus pay in lieu of accrued holidays. He completely disagrees with the proposal presented by the company that he should sign a “full and final settlement” document which, in his view, means that he could not pursue a claim of personal injuries against the respondent. He said that his solicitor advised him not to sign this document and he accepts that he received the payment nonetheless.

While he was dismissed for incapacity, the complainant is not satisfied that the company’s occupational health consultant carried out a proper examination before reaching the conclusion that he was unfit for work. At the consultation, the doctor simply spoke to the complainant, and asked him how he was and what medication he was taking, but he did not carry out a physical examination. On this basis, the opinion of the complainant and his wife is that the doctor made a decision about his incapacity without full information regarding his state of health.

The complainant said that he could return to work to a desk job, but he did not produce any medical evidence to support this claim. He said he continues to suffer from pain in his back and he is on very strong medication. He has an appointment in Tallaght Hospital on the Monday after this hearing to have a pain-blocking procedure carried out.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. In the case of this complainant, the conduct which resulted in his dismissal is the respondent’s belief, based on the advice of their occupational health consultant, that the complainant is not medically capable of doing the job that he was employed to do. The complainant agrees that he is not able to work as a security officer, but is hopeful that he can do a different, less physical role in the future.

Section 6(4)(a) of the Act provides that;

“…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

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

In the case under consideration here, the issue is the complainant’s capability. It is evident that the complainant is not fit for work and that he has not been able to work since January 2016. At the hearing, it was obvious that the complainant is in a lot of pain. Apart from the disadvantage of not being able to work, he said that his injury has had an effect on his family life and on his relationship with his nine-year old son.   I have a great deal of sympathy for his situation, but I have to consider that the essence of the contract between an employer and an employee is that an employee attends work regularly on the days they are contracted to do so. Where an illness interferes with an employee’s ability to attend work, a dismissal for reasons of incapacity may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

In the case of this complainant, he has been absent due to his illness for two years and 10 months.   Unfortunately, he has not been able to provide any medical evidence to counter the opinion of the respondent’s occupational health consultant that he will not return to work “for the foreseeable future.”

The issue of the reasonableness of an employer’s response to the absence of an employee who is ill is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Browne-Wilkinson J, refers to the function of the industrial tribunal, and now my function as the adjudicator,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The circumstances of this particular case are:

Following an incident of assault at work on January 12th 2016, the claimant was absent arising from the injuries he received. He was paid his salary for two years after the incident. Unfortunately, he remains unfit for work.

Having considered the facts, I find that the respondent’s decision to dismiss the complainant fell within the band of reasonable responses expected of a reasonable employer in the circumstances which have been outlined.

Was the Process Fair?

The High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for ill health. Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

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

From the evidence of both sides at the hearing, it is clear that after his consultation with the occupational health consultant on October 3rd 2017, the complainant attended four meetings with the HR team. At these meetings and in telephone and e mail correspondence between the HR department and the complainant’s union representative, he was informed that he would be dismissed because of his ill health.   This was the substantial and only reason for his dismissal. At the meetings he attended with the members of the HR team, the complainant was represented by his union, although, as I stated earlier, he was unhappy with the level of support provided. At the meeting he attended on December 12th 2017, the complainant was informed that his employment would be terminated. He appealed this decision at a meeting on January 3rd 2018 and his letter of dismissal shows that he was dismissed on March 28th. I am satisfied that he appropriately represented, that he was afforded the opportunity of being heard and that he stated his case.

Having examined all the circumstances, I find that the process followed by the respondent was a fair process.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not upheld.

Absence due to illness