Complainant

Respondent

Parties

Marie Tierney

Dunnes Stores

Complainant

Respondent

Anonymised Parties

Marie Tierney

Dunnes Stores

Representatives

Mandate Trade Union

Byrne Wallace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010543-001

30/03/2017

The respondent employed the complainant as a sales assistant from the 2nd of December 2000 until the 9th of February 2017. She was paid €400 and worked 30 hours per week. The parties made written and oral submission and witness testimony was taken at hearing.

The complainant submits that she had been absent from work for a period of almost three years prior to her dismissal. She had suffered from a prolapsed bladder and diverticulitis necessitating the partial removal of her bowel. Surgical complications ensued and any return to work would require accommodation as it relates to heavy lifting. She met management regularly during the period of her illness and complied assiduously with the absence policy. The respondent’s notes of those meetings have been provided however the notes relating to the final meetings are not accepted as an accurate reflection of their content. The respondent states in its record that a return to work is not feasible in the absence of full fitness clearance. The respondent wrote to her on the 30th of January 2017 inviting her to a meeting on the 9th of February 2017 to discuss her current medical condition and seeking to establish a definite return to work date. She was asked to see her doctor in advance and to bring any medical relevant reports. She was informed that in the event her position remained the same (not able to provide a return to work date) that the respondent would be left with no alternative but to terminate her contract. The medical position hadn’t changed she could not stand long periods of standing or lifting of heavy items or say when she would be fully fit. A disciplinary meeting was convened 15 minutes after the initial meeting and she was dismissed. Her written appeal (the respondent refused and oral hearing) was unsuccessful.

The respondent submits that the complainant was not fit to perform the duties for which she was employed. It was common case that the complainant could not perform the duties attached to her position. Reasonable accommodation was offered and during the period of her absence she was certified as completely unfit or fit for light duties only. The respondent met with her on the 20th of January 2017 and it was agreed that she would return to light duties only on the 6th of February as part of a phased return. She agreed to provide a medical clearance for the work which she would be required to perform which covered working on the tills and assisting customers for shifts of shorter duration. Her doctor was unwilling to certify her as fit and it would appear, that the medical advice received was to the effect that she could not perform the reduced level of duties proposed by the respondent. There was no alternative position available and ultimately her employment was terminated. The respondent relies upon s. 16 of the Act to justify its position in the matter.

In coming to a finding in this matter I note the legal submissions made and the reliance of both sides on the dicta of the Labour Court in Humphreys v Westwood Fitness Club concerning s. 16 of the Act. I am satisfied that the respondent had formed a bona fide view that the complainant was not fully capable of performing the duties for which she was employed. It was as submitted by the respondent that this was common case.

I am also satisfied that the respondent satisfied the requirements set out at s. 16 (3) of the Act in that it afforded the opportunity for the complainant to return in early 2017 to work on the basis that she would perform assisted or light work on shorter hours and that the complainant’s doctor would not certify her fitness for the same.

Furthermore, I am satisfied that the respondent was in full possession of all the material facts relating to the complainant’s condition and that she was given fair notice that the question of her dismissal for incapacity was being considered (letter of 30th of January 2017) and allowed an opportunity to influence the respondent’s decision (meeting 9th of February 2017). I note that the complainant specifically disagreed with the part of the respondent’s note of the latter meeting in which she was alleged to have agreed that she would never work for the respondent again. She said in her evidence that she stated that she didn’t see herself coming back fully fit but that she did she herself coming back.

In these circumstances I am satisfied that the respondent has entered a successful defence and find that the complaint fails.

The complaint is not well founded.