Complainant

Respondent

Anonymised Parties

A Security Officer

A Facilities Management Company

Representatives

In person

John Barry Management Support Services (Ireland) Ltd

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-00010253-001

15/03/2017

The complainant has been employed since February 2008. His initial employer transferred its contracts to the Respondent in December 2015 under the Transfer of Undertakings Regulations. The complainant was employed as a Security Officer which attracted a gross hourly rate of pay of €10.75. The complainant has not returned to work since the transfer took place in 2015 as he has been absent on certified sick leave since 2012.

The Respondent contends that the complainant was dismissed by reason of incapacity in line with the provisions of Section 6(4) of the Unfair Dismissal Acts, 1977-2015. The Respondent contends that the complainant is contracted to work in Dublin but has been out sick since 2012. The Respondent’s position is that there was no contact from the complainant at the time it took over the business in December 2015. The Respondent stated that correspondence had issued to the complainant in March and May 2016 but no response was received. The Respondent’s position is that following contact from the complainant, a welfare meeting took place on 26th May 2016 and the complainant provided a medical report that outlined his aspirations to return to work, albeit it in a limited capacity due to his illness. The Respondent contends that a referral to its occupational health physician took place on 14th June 2016 which found:

“that the complainant would be fit to return to work on a part time basis with the following recommendations”

Work should be office/indoor based. His working day should not exceed four hours per day. There should be no risks whatsoever or physical assault. He should have no role in restraining or escorting individuals. He should avoid all conflict or potential conflict situation. He is not physically fit and any role that requires physical fitness must be avoided.

[Complainant’s first name]’s illness is chronic and lifelong so these recommendations will have to be adhered to for as long as he continues to work.

If these accommodations can be arranged, [Complainant’s first name] is fit to return to work.

The Respondent contends that a further welfare meeting was arranged for 21st July 2016. The Respondent informed the complainant at the meeting that it had been unable to find an alternative position in the location where the complainant resides that would be in line with the recommendations of the occupational health report. The Respondent stated that the complainant remained certified as unfit to return to work until 5th September 2016. On 12th September 2016, the Respondent spoke with the complainant and established that there was some improvements in the complainant’s health but that the limitations on the complainant’s employment would remain the same. The complainant was certified as unfit to work until 5th October 2016.

The complainant attended a case review meeting on 22nd September 2016 and the Respondent stated that it acknowledged the complainant’s enthusiasm to return to work. The Respondent contends that having taken everything into account, it took the decision to terminate the complainant’s employment on the basis of his incapacity to carry out his role within the organisation. By letter dated 26th September 2016 the Respondent outlined that the reasons for the complainant’s dismissal were that there was ongoing uncertainty in respect of his health, he had limited ability to carry out any of the duties that the Respondent could offer and that there was no suitable positions in or around the location where he lived.

The Respondent confirmed that an appeal of the decision to dismiss the complainant took place on 21st October 2016. The decision to dismissal was upheld on appeal.

The Respondent contends that it has done everything within its power to accommodate the complainant with an alternative position in line with the occupational health recommendations in the area where the complainant lived. Ultimately, this proved unsuccessful and the Respondent took the decision to dismiss the complainant.

The complainant contends that he was unfairly dismissed by the Respondent. The complainant’s position is that he had been absent from work since 2012 with a number of medical issues but is very much interested in returning to work, albeit in a limited capacity. The complainant attended a welfare meeting on 26th May 2016 and provided a note from his physician which stated that

“he was keen to return to employment in some format but his conditions and hours will have to be tailored to allow for his medical conditions. Certainly manual or heavy labour would not be suitable and he would struggle to work to many consecutive hours due to fatigue.”

The complainant contends that despite his medical conditions, his health was improving slowly and he would have been able to carry out some roles in the Company such as camera monitoring or other roles of that nature. The complainant stated that the Respondent did not do enough in order to facilitate his return to work. He contends that he was prepared to work away from his home within a reasonable distance and had begun taking driving lessons in that regard but the Respondent did not make sufficient attempts to source alternative work for him.

The complainant contends that he was notified of his dismissal by letter dated 26th September 2016 and subsequently lodged an appeal which took place on 21st October 2016. The complainant contends that he appealed the dismissal on the basis that

i)                  he was fit to resume part time work and had been certified as such

ii)                the medical assessments had not been furnished to him in advance of the case review meeting held in September 2016

iii)               sufficient efforts had not been made to find suitable alternative part time work

iv)               insufficient efforts had been made to support a reinstatement into the workplace

v)                 he was not advised that the termination of his employment was being considered prior to the case review meeting of 22nd September 2016.

The complainant contends that despite his appeal, the decision to dismiss him on the grounds of incapacity was upheld. The complainant contends that this dismissal was unfair and is seeking reinstatement.

The essence of this complaint is whether the Respondent acted reasonably in relation to its decision to dismiss the complainant from his employment.

In relation to the compliant, I find that the complainant was employed since 2008 by a previous employer which transferred its contracts to the Respondent in December 2015 under the Transfer of Undertakings Regulations.

I find that the complainant’s contract of employment is based on a Dublin working location although he now resides in a provincial location.

I note that the complainant has been absent from work due to serious ill health since 2012.

I note that the parties entered into discussions in 2016 in relation to the complainant’s ability to return to work on a limited/part time basis and the Respondent’s ability to find suitable alternative employment for him in the vicinity of his residence.

I find that any alternative employment offered to the complainant could only be done in line with occupational health recommendations and the recommendations of the complainant’s Physician and Consultant.

I accept the Respondent’s position that it had made every effort to facilitate the worker in sourcing suitable alternative employment for the complainant in the area where he lived, taking into account the realities of finding a role within its business model that the complainant was medically fit to undertake.

The Law:

Section 6 (4) (a) of the Unfair Dismissal Act 1997 provides as follows:

‘Without prejudice to the generality of subsection (1) the dismissal of an employee shall be deemed, for the purpose of the 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 required which he was employed by the employer to do

In the case of Bolger v Showerings (Ireland) Limited [1990 ELR 184] the High Court set out the key requirements to be met when an employee is being dismissed for incapacity:

·        i) Ill health must be the reason for the dismissal;

·        Ii) This must be a substantial reason;

·        Iii) The employee must be notified that dismissal for incapacity is being considered; and

·        Iv) The employee must be given a chance to be heard

·        The Appeal

The complainant exercised his right to appeal his dismissal in line with procedures.

The complainant’s grounds of appeal stated he was fit to return to work on a part time basis yet the Respondent contends that he continued to submit certificates stating he was unfit to return to work.

The complainant contended that he did not receive copies of the medical assessments prior to the review meeting of 22nd September 2016 yet the Respondent stated he had been furnished with the assessments on 1st July 2016 and again in the invitation letter to attend the review meeting which issued on 13th September 2016.

The complainant stated not enough had been done to find suitable positions yet the Respondent stated it had continued in its efforts to source suitable alternative roles for him.

The complainant stated that not enough had been done in relation to his reinstatement whereby the Respondent contends that notwithstanding his change of residence, and the lack of options available in the new location, it had made every effort to source a suitable alternative.

The complainant stated in his appeal that he was not aware that the termination of his employment was being considered prior to the review meeting of 22nd September 2016. The Respondent contends that the complainant was aware of this and had been informed at a meeting in July 2016 that it was an option for consideration if a suitable role could not be found for him. The Respondent contends that this was also conveyed to the complainant in the invitation letter of the 13th September 2016 to attend the review meeting on 22nd September 2016.

Having considered the points raised in the appeal of the dismissal I accept the Respondent’s position that the dismissal was not unfair.

I also accept that the Respondent met the requirements as set out in Bolger v Showerings (Ireland) Limited [1990 ELR 184] in relation to the process which culminated in the complainant’s dismissal.

On the basis of the written and oral submissions of the parties and the evidence adduced at the adjudication hearing, I do not find that the dismissal was unfair and therefore I decide that the complaint is not well founded.

Key Words: Unfair dismissal, incapacity, Bolger v Showerings (Ireland) Limited