ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007463

Parties:

 Anonymised PartiesAn EmployeeAn Employer   Representatives SIPTU, IBEC

Complaint(s):

ActComplaint/Dispute Reference No.          CA-00010111-001

Date of Receipt                  08/03/2017

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

Date of Adjudication Hearing: 03/11/2017 and 09/11/2017. Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and followingthe referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The Complainant commenced employment with the Respondent Company on 5 March 1990. She was employed as an Order Packer. The role of Order Packer required the Complainant to be on her feet for up to 8 hours per day in order to pick and pack orders for customers. Over time the Complainant’s role changed to take on some administrative duties associated with dispatching orders to customers. The Complainant had been absent from work since 4 April 2012 as a result of suffering pains in her left foot. She was dismissed after a lengthy process on 25th November 2016. The decision to dismiss was appealed and an appeal hearing was heard in January 2017.

Summary of Respondent’s Case:

The Complainant commenced employment with the Respondent Company on 5 March 1990. Claimant was employed as an Order Packer. The role of Order Packer required the Complainant to be on her feet for up to 8 hours per day in order to pick and pack orders for customers. Over time the Complainant’s role changed to take on some administrative duties associated with dispatching orders to customers. The Complainant had been absent from work since 4 April 2012 because of pains in her left foot. In the period from her initial absence in 2012 to October 2015, the Complainant had undergone 3 operations related to this issue (the most recent being in Dec 2014). The Complainant attended an Occupational assessment with the Respondent Company Doctor who found her unfit to return to work. The Complainant was unable to provide any contrary medical evidence to this prognosis. Given the Complainant’s extended length of absence from the Company (circa 4+years); the Respondent had no option but to make a decision concerning the Complainant’s employment with the Company. The ultimate decision reached was to terminate the Complainant’s employment effective 25 November 2016 on the grounds of incapability to return to normal work duties. This decision was not taken lightly, nor was it taken without due process or the direct input of the Complainant and her representatives. The decision to terminate the Complainant’s employment was communicated in writing on 30 September 2016. In line the provisions of the Minimum Notice & Terms of Employment Acts 1973 – 2005, the Complainant was provided with 8 weeks’ notice. The Complainant was offered the opportunity to appeal this decision. Following due process and due consideration of the Complainant’s representations, the Respondent company felt it appropriate to uphold the original decision to terminate the Complainant’s employment effective 25 November 2016.

Background to the issue.  As iterated above, the Complainant had been absent from work since 4 April 2012 as a result of suffering pains in her left foot. The Complainant sent in regular medical certificates from her GP to cover her absence due to illness. On 1 October 2015, the Company wrote to the Complainant to invite her to meet the Company’s Doctor to assess her current state of health and her likely return to work date. The Claimant failed to respond to this letter and so the Company resent the letter on 8 October 2015. The Complainant attended the Company’s Occupational specialist on 12 October 2015. At this assessment, the Complainant explained that she was due to go for an MRI scan of her foot. A follow up assessment was arranged for when the results of the scan were available. This follow up appointment took place in March 2016. Between 3 - 18 March there were 9 occasions (7 e-mails and 2 letters) wherein the Respondent company wrote to the Complainant to try to arrange this follow up medical appointment. The Complainant never responded to any of the 9 communications. On 22 March 2016, the Respondent’s medical health adviser met with the Complainant to review the Complainant’s condition. Following this assessment, the medical health adviser stated in his report that “thechances for her getting enough movement in her ankle to be able to walk andstand for an 8-hour shift looks remote at present…it is highly unlikely she will ever be fit toreturn to her previous position as an order picker”. Following receipt of this report (a copy of which was sent to the Claimant for review), the Company wrote to the Complainant on 21 April 2016 to invite her to a meeting to discuss this report and her continued employment with the Company. The proposed meeting was scheduled to take place on 5 May 2016. This letter was sent to the Claimant via courier to her home address and by e-mail to her personal email address (an email address which the Complainant had used previously to communicate with the Company). The purpose of this meeting was to discuss the report and her continued employment with the Company.   On 19 May 2016, the Complainant together with her trade union representative attended a meeting in the Respondent company premises with two members of the Respondent Management Team. At this meeting the findings of the medical report were put to the Complainant – i.e. “it was very unlikely she will ever be fit to return to her previous position”. The Claimant disputed this prognosis and stated that she was fit to return to work immediately. In order to accommodate the Complainant’s swift return to work and in light of the extended period of absence from work, the Company advised the Complainant that she would be required to provide a letter from her doctor confirming that she was fully able to resume her duties as a packer. In particular, the Company requested that this letter from her doctor needed to address the following points: - 1) That you are capable of performing your duties to the same standard as you did prior to your absence 2) That your leg has healed completely 3) That there are no outstanding issues surrounding weakness or further healing that may still be necessary. 4) That you will be able to carry suitable weights as before without adversely affecting your leg 5) That you will be capable of packaging duties such as lifting weights, carry boxes, pushing/pulling of packaging trolleys and pallets 6) That you will be able to remain standing for long periods of time and also walking without it adversely affecting your leg. 7) That you will be in a position to wear safety footwear as is required by law. It was also stated at this meeting that upon receipt of this letter, the Company would require The Complainant to visit the occupational health adviser for an independent examination of her foot/assessment of her doctor’s advice that she was fit to return to work. The details of this meeting were reiterated to the Complainant in a letter of 25 May 2016. This letter clearly stated that the Complainant was required to send the Company a report from her Doctor to confirm her fitness to return to work. This letter was sent to the Claimant via courier to her home address and by e-mail to her personal email address. The Claimant failed to respond.   On 13 June 2016, a follow up letter was sent to the Claimant stating that the Company was not in receipt of a letter from her doctor (as requested in the meeting of the 19th May 2016 and in later correspondences). The Company again requested a copy of her doctor’s report to confirm her fitness to return to work. This letter was again sent via courier and e-mailed to the Complainant. The Complainant failed to respond.   On 8 July 2016, the Company wrote to the Complainant again. This letter reiterated that the Company had yet to receive any medical documentation from the Complainant’s doctor. Following the Complainant’s continual failure to respond to any of the Company’s communications and failure to provide this vital medical evidence from her doctor that she was indeed fit to return to work; the Company decided to invite the Complainant to a meeting to be held on 25 July 2016. The purpose of this meeting was to discuss the status of her employment. The company stated that it was happy to facilitate the Complainant’s return to work in the immediate future but could not keep her post open indefinitely. It was clearly stated in this letter that the Complainant needed to provide the Company with a medical report to support her return to work or the Company would be forced to make a decision about her future employment in the absence of same. The Company was clear that such a decision could include the termination of her employment. This letter was sent to the Complainant by courier and by e-mail.   The Complainant failed to attend this meeting or respond to the Company’s correspondence. On 27 July 2016 the Company wrote to the Complainant. The Company acknowledged the Complainant’s failure to attend this very important meeting and invited the Complainant to a rescheduled meeting on 5 August 2016. The company urged the Complainant to attend this meeting (with representation), as this meeting was of critical importance to her future employment with the Respondent. The letter went on to state that should the Complainant decide not to attend this meeting, the Company will be forced to decide in her absence. This letter was clear that any decisions made in her absence (up to and including her termination) would be communicated to the Claimant in writing. This letter (together with copies of all previous correspondence) was sent to the Complainant via courier and by e-mail.   On 28 July 2016, the Complainant replied to the Company’s letter/e-mail of the same date. The Complainant proceeded to advise the Company that she had not received any letters about a meeting. The Company responded and informed the Complainant of the rescheduled meeting on 5 August 2016 and again asked the Complainant to furnish the company with a letter to clarify her medical condition/status. The Company went on to remind the Complainant that if they did not receive her doctor’s report before this meeting; the company would have no option but to make its decision in the absence of her medical advisor’s advice. Yet again, the Complainant failed to attend the meeting on 5 August 2017 and she also failed to provide the company with a medical report from her doctor (*as initially requested in themeeting of 19 May 2016 and in every correspondence since).  On 30 September 2016, the Company wrote to inform the Complainant of their decision to terminate her employment on the grounds that she was not fit to return to normal duties (in line with the uncontested advice obtained from the occupational health adviser). In line with the provisions of the Minimum Notice & Terms of Employment Acts, the Claimant was provided with 8 weeks’ notice and informed that her employment would terminate effective 25th November 2016. The Claimant was offered the opportunity to appeal this decision. This letter was sent to the Complainant’s home address via courier.   On 6 October 2016, the Company received a request for an appeal.   An appeals hearing was heard on 12 January 2017. Enquiries were made regarding the Complainant’s failure to communicate with the Company following her initial meeting in May 2016 to the date of her dismissal in September 2016 or indeed up to the appeal meeting date (12/1/2017). The Complainant, through her representative, went through a list of things that she had been doing to be ready to return to work. It seemed strange that the Complainant had made all this effort to return to work and yet she had failed to contact the company to inform them of these efforts. The Appeals Officer reminded the Complainant that the Company had made efforts to both courier and email correspondence and yet she repeatedly chose not to respond. Following due consideration of the facts, The Appeals Officer wrote to the Claimant wherein he advised that he would be upholding the Company’s original decision to terminate her employment effective 25 November 2016.

 Legal Submission.  In Humphries v Westwood Fitness Club (EED037; ED/02/59; ELR 296) the Labour Court (as upheld by the Circuit Court) determined that the dismissal had occurred primarily from the Respondents belief that the Claimants disorder would impair her ability to carry out the duties for which she was employed. The Court upheld that the dismissal was fair on the basis of the following due process: 1) The Respondent was able to demonstrate that they had a bona fide belief that the claimant was not fully capable of performing the duties for which she was employed; 2) In order to form this belief, the respondent had made adequate enquires to establish fully the factual position in relation to the claimant’s capacity; 3) Such enquires could only be regarded as adequate if the employee concerned was allowed full opportunity to participate and is allowed to present relevant medical evidence.   The Company in this instant case had a bona fide belief that the Claimant was not fully capable of performing her duties for which she was employed. She had been out of work for circa 4+years due to illness; she had been providing medical certificates to demonstrate this fact and when the Claimant was sent for an Occupational assessment in 2016, she was found unfit to return to work. The Company went above and beyond what was required to ensure that the Claimant was invited to participate in the decision-making process. All correspondences were sent by email and by courier to her home address. The Claimant responded intermittently and only when it suited her. The Company made several attempts to obtain medical evidence from the Claimant’s doctor but the Claimant was not forthcoming.   In Behan v An Post, UD 320/2006, the Tribunal determined: “[T]he claimant had rendered himself incapable of fulfilling his obligations to his employerunder his contract of employment. […] In the circumstances because of the claimant's incapacity tofulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fairin all the circumstances  The Company believes that the decision reached is appropriate and that any other reasonable employer would have reached the same conclusion.                 

Summary of Complainant’s Case:

Background. In January, 2012 the Complainant injured her leg when a box of product fell off a pallet while she was passing. She reported the accident to immediately. The procedure is for the Manager to complete the Accident Report Form and update the Company Record Book in respect of the accident.   It is our understanding that did not happen. The Complainant attended the hospital where she had an x-ray. The Complainant was advised there was no break, and she had sustained a soft tissue injury. The Complainant returned to work and was permitted by her manager to wear runners instead of the required steel toe boots.   In April, 2012 the Complainant was referred for an MRI Scan as the pain was becoming unbearable and the injury was showing no sign of improvement.   It transpired that there had indeed been a hairline fracture there, which had now exacerbated and that she now had a diffusion of her tibia. Because of the delayed prognosis, the Complainant’s treatment and recovery was protracted and long drawn out.   It was through no fault of the Complainant’s that the initial prognosis was incorrect. The Complainant was now in a situation where the proper treatment for the correct injury was only now commencing two months after the actual accident date.   The Complainant went on long term illness from this point. The Complainant was also referred to the Fracture Department of St. James’s Hospital where she had to undergo surgery to fuse the bone back together and had metal and pins inserted in her leg. The Complainant sent in her medical certificates to her employer through a colleague on a regular basis. After six weeks, the Complainant went back for a check-up and it transpired that the injury was taking a longer time to heal, she was given a further medical certificate.   Union Arguments.   The Unfair Dismissal legislation provides that an employer must be reasonable in their decision to dismiss. We contend that the employer was not reasonable in the circumstances as the Complainant was continuing to undergo surgery when they decided to dismiss her. We will contend that the employer did not have ‘substantial grounds justifying the dismissal’ of the Complainant as she did everything in her power to facilitate her return to work on normal duties, and that the conduct of the employer in relation to the dismissal was unreasonable. The Complainant indicated to her employer at all times her wish to return to work. The Complainant ensured she kept her VHI paid while on sick leave (which caused her considerable financial hardship) so as to be in a position to obtain all necessary medical treatment in a timely manner to facilitate her return to work as soon as possible. It is noteworthy also that a letter from the employer dated the 1st October, 2015 advising the Complainant of her appointment with the Respondent’s occupational health adviser on the 12th October, 2015 was only delivered by a courier on the 8th October, 2016 with the note “AM DELIVERY AND MUST HAVE A POD – signature”. This letter was delivered to the wrong address, and a neighbour of the Complainant’s hand delivered this letter to the Complainant on the evening of the 11th day of October, 2015, the evening before the actual appointment.   The Union are at a loss to understand why the employer who previously arranged hand delivery of correspondence to Ms. Bailey through her colleague suddenly without any reason or justification changed their method of delivery to courier or post, but, however, these letters were never received.   Caselaw.  In the case of UD193/2013 the Tribunal determined “the sanction of dismissal for gross misconduct of an employee who had been described as “a brilliant operator” for a single incident, which was inadvertently caused, is disproportionate. The Tribunal also takes into account the candour displayed by the Claimant in dealing with the allegation”. In the case of O’Reilly v Bank of Ireland 2015 IHEC 241 the High Court deemed the dismissal to be unfair for a variety of reasons. The Court stated that it had to weigh up on the impact of the employee’s conduct on the bank as against the impact on the bank’s decision to dismiss on the employee.   In the circumstances, it was deemed that impact was greater on the employee as the employer had shown no evidence of loss or damage, whereas the employee had little hope of re-employment in the industry at a time when he had recently purchased a new home. Taking this into account, in addition to the suspension and company policy issued outlined above, the dismissal was deemed unfair and the Court stated that the employee should be reinstated. The claimant was reinstated six years after the date of his dismissal due to the dismissal being deemed unfair. In this case, we believe that the employer was unreasonable in taking the decision to dismiss the Complainant for reasons identical to that in the case of UD193/2013, and, therefore, our member is requesting reinstatement as per the High Court decision in the O’Reilly v Bank of Ireland 2015 IHEC 241.      

    Conclusion  It is our conclusion that having regard to the fact that the Complainant had maintained an unblemished record during her 25 years’ service, we believe that the employer was completely unreasonable in dismissing her for circumstances which were beyond her control. We respectfully request the Adjudication Officer to rule in favour of the Trade Union and our member based on the facts and evidence clearly outlined above, and award reinstatement/re-engagement to our member.       

Findings and Conclusions:

I have considered all aspects of this case and would comment as follows: 1.The respondent has shown that they were more than willing to have the Complainant return to work if she would attend a final medical assessment with their occupational health adviser. Efforts were made to arrange this over several months and the Complainant repeatedly failed to attend and failed to provide a satisfactory explanation for her non- attendance. 2. I note that at the meeting between the Complainant and Respondent on 19th May 2016 the Complainant stated that it was her intention to return to work immediately. 3. n relation to a medical certificate of fitness to return to work the Complainant failed to provide the Respondent with such a cert. The request for such a certificate was not unreasonable. 4. On the second day of the hearing at the Workplace Relations Commission the Complainant produced a letter from her GP dated 17/10/2016. Why was this letter not given to the respondent at the time of issue? 5. I must consider the caselaw provided by both Respondent and Complainant at the hearing. In the case of Humphries v Westwood Fitness Club (EED037; ED/02/59; ELR 296) the Labour Court as upheld by the Circuit Court) The Court upheld that the dismissal was fair on the basis of the following due process:   1. The Respondent was able to demonstrate that they had a bona fide belief that the   claimant was not fully capable of performing the duties for which she was employed.   2. In order to form this belief, the respondent had made adequate enquiries to establish fully the factual position in relation to the claimant’s capacity. 3. Such enquiries could only be regarded as adequate if the employee concerned was allowed full opportunity to participate and is allowed to present relevant medical evidence.        

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. For the reasons outlined above I have decided that the claim fails and that the Complainant was not unfairly dismissed.

Dated:   29.01.2018

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words: Unfair dismissal: Fitness to Work.