ADJ-00008751

Complainant

Respondent

Anonymised Parties

A Coach Driver

A Bus Company

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

10/05/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

10/05/2017

The Complainant commenced employment with the Respondent   Bus Company in March 2008. No issues arose until the 17^th October   2016. On this date the complainant experienced vision problems.

After attending the A&E of the Mater Hospital he was   referred to an Eye surgeon who diagnosed him with a serious eye condition – Retinitis Pigmentosa. This was   communicated to his employer -the Complainant copied a letter dated the 19^th   October 2016, from the Eye surgeon, to his employer.

At a meeting with the Company on the 17^th   November 2016 he was informed that his employment was being terminated on the   basis that he was no longer physically capable of fulfilling the terms of his   employment contract.

The Complainant appealed this decision to the Managing Director   but the appeal was unsuccessful.

The dismissal decision was taken too quickly before the   medical situation was completely clear and no alternative employment was   offered to him despite the company recruiting for other positions. In addition,   he was discriminated against on the grounds of his disability.

The Complainant was always an excellent employee but as   the Respondent is a relatively small Bus Operating Company it is a   requirement that driver grade employees hold a valid driving licence. The   letter from the Mater Hospital specialist was unequivocal in stating that The   Complainant had “an inherited eye disease” that prevented him satisfying RSA   driving standards. He was advised not to drive. It was also stated that “his   vision is unlikely to improve in the short term”.

In a discussion with his Manager it was clear that the vision   problem was not likely to improve for the foreseeable future. This medical   situation effectively precluded the Complainant from any driving positon with   the Respondent.

The Respondent had every sympathy for the Complainant. The   question of alternative work was considered but there was no opportunity for   a non-driving person at that time. A temporary Ticket Seller position at   Dublin Airport arrivals hall was proposed in December 2016 but declined by   the Complainant.

The decision to terminate was very regrettable but the Respondent   had no options. The Respondent emphasised to the Oral hearing that if the Complainant’s   condition changed and he obtained a driving licence they would be most   anxious to talk to him about re- employment. In the course of the oral   hearing it became clear that an opportunity for a permanent non-driving position   was now available and the Complainant was invite to apply forthwith.

3:1     The   Law

Section 6 (4) of the Unfair Dismissals Act,1977   states

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.

Legal precedent would also indicate that “a   reasonable employer” should, where cases involving medical issues falling   under 4 (a) above arise, take every reasonable step to see if any alternative   employment could be found for the worker facing dismissal.

3:2       Consideration of the evidence.

In the case in hand the Complainant, through no fault of   his own, falls under the scope of sections a and d above.

Medically he was unfit to drive and to hold a driving   licence. He remains so to the date of the hearing. In evidence, he stated   that he is still in receipt of a social welfare long term disability payment   and participates in some NCBI programmes.

The question of what alternative employment was available,   at the time of the dismissal, was somewhat disputed. However, it was clear   that some of the positons identified were in effect positons where a driving   licence was required. The size of the Company did not really allow any   supernumerary positions. It was clear that the Company was not a major semi   state like CIE where a “grounded driver” could be assigned other work in a   large organisation.

The Complainant in his oral evidence explained the serious   effect of losing his means of livelihood had on him. The disputed offer (in   December 2016) of a temporary Ticker seller positon at the Airport represented   in December 2016 a major demotion for him.

In reviewing his oral evidence, I came to the view that   the December offer had probably come too soon for the Complainant who was   just coming to terms with the likely long term loss of his livelihood as a professional   Coach driver.

The Respondent made it clear that if the Complainant’s   medical situation regarding driving changed for the better he should   immediately contact them.

As an aside I was happy to note that the exchange between   the parties at the oral hearing regarding a current non-driving vacancy was   very positive.

3:3     Conclusions

Section 6 (4)(a) of the Unfair Dismissals Act 1977 (extract   above) is very clear – a dismissal on the grounds of capability is not   unfair. The Medical evidence (the letter from the Mater Hospital Consultants   Clinic) was very strong. A follow-up enquiry from a Respondent Medical advisor   to the Mater Consultant might have been warranted but the Respondent, when   questioned on this point, maintained that the Mater Hospital letter (presented   in evidence) was absolutely unequivocal and the direct discussions with the Complainant   (both at the initial stages and the subsequent Appeal Hearing) had confirmed   the most pessimistic medical outlook. A Company doctor would have been told   nothing different.

On balance and having read the Mater Hospital letter, I,   reluctantly, accepted this argument regarding not having a Company Doctor contact   the Mater Hospital.

In final conclusion, I have to find that the claim for   Unfair Dismissal is not well founded. Section 6(4)(a) of the Act must apply.

The claim is dismissed.

Closing Comment (not part of the   adjudication decision)

The situation in this case is most   unfortunate for the Complainant and I hope that the tentative approaches made   at the hearing regarding a suitable non-driving positon bear fruit for the   parties.