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-00012180-001

26/06/2017

The Complainant in this case was employed by the Respondent and commenced employment in February 2000. After a long period of illness the Complainant was dismissed from employment on the grounds on incapacity on 24th March 2017.

The Complainant commenced employment with the Respondent Company on 10 February 2000, as a member of Cabin Crew in the Inflight Services (IFS), department. The Complainant went on sick leave absence on the 5 August 2012 and remained absent until she was dismissed from employment on 24 March 2017.

The Complainant attended the Respondent’s Chief Medical Officer, on twelve separate

occasions between August 2012 and February 2015. Following her attendance with the Company Doctor on 10 August 2015, in his report the Company Doctor reported that the prospect of the Complainant resuming her cabin crew duties in the future was poor. On receipt of this report, the Respondents IFS Attendance and Resource Manager, wrote to the Complainant on 18 August 2015, to invite her to a meeting on 26 August 2015, at 11am, in order to discuss the implications of the medical report. The Complainant telephoned on 26 August 2015 at 9am, to say she would not be attending the meeting as she was unfit to work and a meeting would be totally redundant.

The Respondent received a further medical report from the Company Doctor on 26 November 2015, in which he opined that the Complainant was unlikely to be fit to work as a member of cabin crew in the future. On receipt of this report, the Respondent company wrote, on 21 December 2015, to invite the Complainant to attend a meeting on 6 January 2016, in order to discuss the implications of the Company Doctor’s report. The Complainant sent an email to IFS Attendance and Resource Manager on 11 January 2016, to say she did not receive the letter of 21 December 2015, and would not attend a rescheduled meeting on 13 January 2016 as she felt, that at that time, it would be redundant to discuss anything when her doctor, specialist and the Company Doctor had certified her unfit to work.

The Respondent wrote to the Complainant on 14 January 2016 confirming that she was being placed in the Respondent’s redeployment pool, in order to help her to secure an alternative role within the Respondent’s employment. The IFS Attendance and Resource manager requested that the Complainant permit her details to be passed to the Respondent’s external services provider, in order that they could support her in: assessing her skills, updating her curriculum vitae, interview preparation and training requirements assessment. The Complainant replied by email on 27 January 2016, to say she would not engage with the external service provider.

The Attendance Manager, arranged to meet with the Complainant, her Trade Union Official and another Attendance Manager on 16 September 2016. The purpose of this meeting was to discuss the details of a medical report issued by the Respondents current occupational health services provider. In his report, the Occupational Health Specialist confirmed that the Complainant was unfit to work as cabin crew, but was fit to work in a ground based role on a half time basis.

The Attendance Manager requested that the Complainant provide an overview of her skills or curriculum vitae and confirmed, by letter dated 28 September 2016, that the Respondent would commence a three week search for an alternative role. In this letter the Attendance Manager also confirmed that, should the Complainant not secure an alternative role, her continued employment would be at risk.

The Respondent received a further medical report from their occupational health service provider, on 13 October 2016 and the Attendance Manager arranged, by letter dated 8 November 2016, to meet the Complainant on 15 November 2016 in order to discuss the details of this report. At this meeting the contents of the Occupational Health Specialist’s report were discussed and the Complainant confirmed she was in agreement with said contents. The Occupational Health Specialist had reported that the Complainant was not fit for cabin based duties and had no prospect of returning to any form of employment with the Respondent for the foreseeable future.

The Attendance Manager advised the Complainant, by letter dated 28 November 2016, that in circumstances where the Complainant had been confirmed as permanently medically unfit for both her contracted role as cabin crew and for alternative ground roles, the Respondent could no longer hold her role open on an indefinite basis and would proceed to terminate her employment.

The Attendance Manager advised the Complainant that the Respondent would take two weeks to consider the details of the meeting and would reconvene the meeting on 30 November 2016. This meeting was re-scheduled at the request of the Complainant’s trade union official to be held on 7 December 2016. This meeting was further rescheduled after a request from the trade union official.

The Attendance Manager wrote to the Complainant on 8 December 2016 to request her to attend a final meeting with herself and a colleague to be held on 14 December 2016.

The Complainant’s trade union official wrote to the Respondent on 13 December 2016 to raise concerns regarding the Complainant’s options for retirement on grounds of ill health. The HR Business Partner, responded to Mr Landers’ letter and advised that the Respondent had honoured it’s commitments in regard to pensions matters and that the Complainant’s employment was not an industrial relations matter.

The Complainant was invited, by letter dated 9 March 2017, to attend a meeting on 16 March 2017 in order to discuss her continued employment.

This meeting was subsequently rescheduled for 24 March 2017 and the Complainant was

accompanied at the meeting by her trade union official.

The Attendance Manager wrote to the Complainant on 30 March 2017 to confirm that her employment had been terminated on grounds of incapability with effect from 24 March 2017. The Complainant was advised that she had the right to appeal this decision.

The Complainant appealed the decision of her dismissal to the Director Employee

Relations and Change. The appeal meeting with the Complainant was held on 28 April 2017.

The Director Employee Relations was accompanied by an Industrial Relations Specialist at this meeting. The trade union official attended with the Complainant.

The Director Employee Relations confirmed, by letter dated 26 May 2017, his decision to uphold the decision to dismiss the Complainant from her employment.

By way of the Workplace Relations Complaint Form the Complainant in this case has summarised her complaint as follows:

1.       Occupational injury sustained on 01/10/2011 due to heavy landing at Faro Airport. Injuries sustained soft muscle tissue damage and joint damage.

2.       Returned to work after 8 months due to pressure from Respondent company even though company doctor said it would take 2 years for whiplash injury to settle down.

3.       On resuming work, some 8 months after sustaining the injury symptoms were 50% better. The company doctor had requested the Complainant to ‘push herself ‘for four weeks.

4.       The Complainant states that she pushed herself for six weeks at work and attended for treatment twice a week during this period however she ended up doing more damage to her back as she had not fully recovered from the injuries sustained.

5.       The Complainant went absent from work on 05/08/2012 and was unable to return prior to her dismissal by the Respondent.

6.       In 2014 the Complainant was offered a chance to apply for an ill-health pension scheme but did not qualify as her prognosis was to return to work at some stage in the future.

7.       A new pension scheme was introduced in 2015.

8.       In late 2016 the Complainant received a diagnosis that she will never be fit for either cabin crew or ground duties with the Respondent.

9.       The Complainant was informed that she does not qualify for the 2015 ill-health scheme as she was on occupational sick leave prior to the start of this new pension scheme.

10.   The Complainant feels it is unfair that, after 17 years in the Respondent company, she did not qualify for the 2014 pension ill-health scheme and later was informed that she does not qualify for the scheme introduced in 2015.

At hearing the Complainant’s representative raised the issue of pension schemes available to the Respondent’s staff and went on to highlight the difficulties the Defined Benefit scheme had experienced in relation to funding shortfalls.

Given the circumstances of the Complainant’s absence she ‘fell between two stools’ in relation to the ill-health retirement options. Under these circumstances the Complainant’s representative feels that the Complainant had been totally excluded and that the Respondent has been unfair and unreasonable.

The Respondent then addressed the subject of the proceedings in a personal injury claim and how such proceedings should have no impact whatsoever in these proceedings at the Workplace Relations Commission.

It was also the opinion of the Complainants representative that the continuation of the Complainant’s employment with the Respondent was possible and should have been allowed.  

The case before the Workplace Relations Commission was referred under the Unfair Dismissals Acts 1977 – 2015.

In relation to submissions made there appears to be no disagreement regarding events leading to the dismissal of the Complainant.

I noted at the hearing that the representative for the Respondent very clearly stated that the Complainant did not apply for Ill-health Early Retirement under the “2014” scheme and yet her complaint form clearly states “I was offered a chance to apply for ill-health pension scheme but I didn’t qualify as my prognosis was to come back to work at some stage in the future” I believe the Complainant is referring to the letter sent by the Director HR Operations on 31/10/2014. This letter makes it very clear that applications for Ill-health Early Retirement cannot be considered after 31st December 2014.

In relation to the new ill-health retirement scheme that started in January 2015 employees absent in 2014 were not eligible.

Addressing the question of eligibility for the old ill-health retirement scheme or the new ill-health retirement scheme – the answers will not be found in the Unfair Dismissals Acts 1977 – 2015.

The jurisdiction of the Workplace Relations Commission does not stretch to pension or disability continuance schemes.

The question to be addressed relates to the termination of the Complainant’s employment – was it unfair or not unfair?

The Respondent as part of their submission include the case of Bolger v Showerings (Ireland) Ltd [1990] ELR 184 where Lardner J explained:

‘In this case it was the ill-health of the plaintiff which the company renedered 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 a substantial reason;

3.       That the employee received fair notice that the question of his dismissal for incapacity was being considered;

4.       That the employee was afforded an opportunity of being heard.’

I have applied these four questions in this instant case and have carefully read the letters sent to the Complainant by the Respondent. In answering each of the questions I have concluded that ill-health was the only reason for the dismissal, as such, it was a very substantial reason. The Complainant was made aware on several occasions that dismissal was being considered by the Respondent and the Complainant was afforded the opportunities to be heard and in this regard several meetings took place.

The Unfair Dismissals Act 1977 at section 6 (4) (a) reads:

(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 to do.  

I have considered all aspects of the case and conclude that the dismissal of the Complainant on the grounds of her incapacity was not an unfair dismissal and therefore the complaint fails.

For the reasons outlined above the complaint fails.

Unfair Dismissal, Capability.