ADJ-00015838

Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Warehouse Company

Representatives

Des Courtney SIPTU

Conor O'Gorman IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00020569-001

16/07/2018

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

CA-00020571-001

16/07/2018

The Complainant commenced employment with the Respondent company on the 18th of July 2006. He worked as a warehouse operative and was paid €700 gross per week. On 28th of November 2016, he suffered back pain and he went out sick. On the18th January 2018 he was dismissed from employment. He is claiming that he was unfairly dismissed.

The Complainant said that on the 28th of November 2016 that he suffered severe back pain which rendered him unfit for work from that day until he was dismissed. He said throughout the period of his absence he received medical treatment both in Ireland and in Poland and was regularly assessed by the company's Occupational Health practitioner. He also attended a number of welfare meetings with the company. He worked in the warehouse which involved lifting. He was not fit to return to this job which involved lifting and he was seeking other jobs in the Respondent company, but he not declared fit to return to work by his doctors.

On the 15th of January 2018 the Complainant attended the Occupational Health physician and he contacted HR seeking a copy of the medical report. During that conversation the Complainant was advised that HR wished to meet with him and he was as instructed to attend a welfare meeting that same day on the 18th of January 2018. The Complainant said that after the HR Manager reviewed the medical report she informed him that he was dismissed. He told her that he was on a waiting list for surgery on his back and was unable to give a date that he would be fit to return to work. At that time, he did not see himself returning to work as a warehouse operative, a job which involved manual handling. His dismissal was confirmed by letter dated 22nd of January 2018. The Complainant appealed the decision to dismiss him, but the decision was not overturned.

The Complainant said that he was declared fit to return to work at the end of May 2018 and he got another job at a lower rate of pay in September 2018.

Union’s Submission

It was submitted by the Complainant’s union that the Disciplinary Procedure forms part of the Complainant’s terms and conditions of employment and therefore the union considers its use is mandatory. However, management simply dispense with it and dismissed the Complainant at a welfare meeting convened for an entirely different reason. Accordingly, the Complainant's ability to adequately prepare for the dismissal meeting was denied as was his right to representation, fair procedures and natural justice.

It was submitted that the Disciplinary Procedures clearly places an obligation on management to carry out both an investigation and a disciplinary hearing. It is submitted that distinction between an investigation and a disciplinary hearing is a fundamental one. In Frizelle vs New Ross Credit Union Limited., Flood J stated: "The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment."

The Union further submitted that even if one were to consider the welfare meeting to constitute an investigation as stipulated in the procedures, there is still a separate requirement for a formal disciplinary hearing. However, it is clear, that welfare meetings form no part of the Disciplinary Procedure and cannot be substituted for, and used as, a process through which employees may be dismissed. In this case the Disciplinary Procedure formed no part of the process used to dismiss the Complainant. Similarly, at no stage prior to attending the welfare meeting, was the Complainant advised that, at the meeting, his employment was at risk.

In the case of Sean Cavanagh vs Dunnes Stores Ltd., UD 820/94 the Employment Appeals Tribunal, in finding the dismissal to be unfair stated:  "It is also clear that prior to that meeting no one ever informed the claimant that his job was at risk if he refused to go to the ILAC..."

Likewise, in the High Court case of Bulger vs Showerings (Ireland) Limited, Lardner J found as follows: for the employer to show that the dismissal was fair, he must show that:

(1)    “It was the ill health which was a reason for the dismissal;

(2)    that this was substantial reason;

(3)    that the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4)    that the employee was offered and an opportunity to be heard”.

In case you UD1519/2013 MN118/2014, in similar circumstances to the instant case, the EAT found that “the Respondent did not abide by its own disciplinary procedures and more importantly did not alert the Complainant to the possibility that the question of dismissal was or would be considere at the meeting…. The claimant was never informed that is was in effect a dismissal meeting at which her dismissal would be considered.”

The union submitted that even if management had a belief that the first two of these requirements were met through the use of the welfare meeting, they were still obliged to meet requirements 3 and 4 above. It is not credible to argue that a welfare meeting, convened for a completely different purpose, with the absolute minimum of notice and which, in fact, was convened on foot of a telephone call from the Complainant, could reasonably be held to constitute fair procedures.

The Unfair Dismissal legislation and subsequent case law all provide that fair procedures and natural justice are required at all times. In this respect, S.I. 146/2000 provides as follows:

“..procedures …, must comply with the general principles of natural justice and fair procedures which include: …

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

The Code of Practice also states: “the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.”

It was further submitted that welfare meetings do not comply with the above requirements and, in any event, are not considered by the parties to constitute alternative agreed procedures the only agreed procedure is the Disciplinary Procedure.

In Aziz vs Midland Health Board, the Supreme Court overturned the dismissal stating that the seriousness of allegations ‘did not absolve the defendants…. from adhering scrupulously to fair procedures’.

I was referred to Section 6(7) of the Unfair Dismissals Act as regards the “reasonableness… of the conduct” of the Respondent. The union further stated that in this case the employer failed to comply with any of the requirements of the Unfair Dismissals Acts or SI 146/2000. Likewise, all the relevant case law requires that fair procedure and natural justice is an absolute imperative in cases of dismissal. The Complainant was not advised prior to the welfare meeting that the matter of his dismissal was on the agenda. Accordingly, his ability to adequately prepare was denied, as was his right to representation and fair procedure and natural justice. It was submitted that welfare meetings form no part of the agreed company /union Disciplinary Procedure and its use to affect the Complainant’s dismissal was a clear breach of his constitutional right to fair procedure and natural Justice.

It was submitted that the procedures used were in clear breach of the requirements of SI 146 2000. It is submitted that all the relevant case law cited above demonstrate that, even in cases in which the capability ground is regarded by an employer as a substantial reason justifying dismissal, fair procedures and natural justice must be scrupulously observed.

On the 29th of November 2016 the Complainant reported that on standing up from a chair in the canteen he felt an acute shooting pain in lower back area and into his thigh. He was subsequently certified unfit for work by his own GP as suffering from acute lumbar strain this diagnosis was subsequently confirmed by the Respondent’s Occupational Health specialist who found that the Complainant was unfit for work.

The Complainant returned to his native Poland for treatment, he continued submitting medical certificates. The Complainant’s consultant in Poland advised that the Complainant required surgery and that he remained unfit for work.

In March 2017 the Complainant was in Dublin and he was asked to attend another appointment with the Occupational Health physician who confirmed that he was unfit to return to work. The Complainant continued to send medical certificates from Poland and kept the Respondent’s HR updated on his progress via email.

In July 2017 the Complainant was again seen by OH and it was confirmed that he was still unfit for work. The Complainant advised OH that he decided not to undergo the surgery, at that time, which had been recommended for him. A welfare meeting was also held during the Complainant’s visit to Dublin. At this meeting the Complainant advised that he thought it will be several years before he would be fit to return to work and did not wish to return to a manual handling role. HR advised him that all warehouse operative roles involved manual handling, but that she would email him all vacancies that arose. A further OH meeting was scheduled for September. The Complainant continued to engage with HR concerning his absence from work and potential options for an alternative role with the Respondent.

The Complainant attended a medical review with OH, in October 2017. At this consultation, OH saw an improvement in his condition and was of the opinion that the Complainant should be fit to return to work in the near future. In the medical report, OH advised that he would need to return to a role that did not involve heavy lifting the typical duties of a warehouse operative.

The Complainant attended for review with OH again in January 2018. OH, found that the Complainant had made excellent progress and was fit for restricted duties initially. In the medical report, OH stated that the Complainant told him that he did not want to go back to his role as a warehouse operative for fear of aggravating his back. OH felt that the Complainant’s ability to return to his previous role was guarded due to the risk of the recurrence of his disc related back pain.

The HR Manager called the Complainant for a welfare meeting on the 18th of January 2018. The HR manager said that the Complainant told her that he had no intention of returning to a role as a warehouse operative because of the heavy lifting. She advised the Complainant that OH had certified him fit to return to work on light duties. in relation to alternative posts the Complainant said that none of the vacancies the company had on offer were suitable as his specialist had advised him that he could not work until his back problem had been fully resolved. The HR manager said that the Complainant told her that he was on a waiting list for surgery, but he could not advise when he would be fit to return to work. The Complainant was then advised by the HR manager that the company would have no option but to terminate his contract of employment due to capability. His dismissal was confirmed in writing to him on the 22nd of January 2018. The Complainant appealed the decision to terminate his contract by letter dated 26th of January 2018. His grounds of appeal where his desire to return to work at some point in the future to a different role on the same rate of pay. He outlined several suggestions for alternative roles. 

The appeal hearing was heard by the General Manager on the 9th of February 2018. The Complainant confirmed at the appeal hearing that he was unfit for the role of a warehouse operative The GM found no reason to overturn the decision to terminate the Complainant’s employment on the grounds of capability as the Complainant would not be able to return to his role as a warehouse operative.

Legal arguments

The fact of dismissal is not in dispute, the Complainant’s employment was terminated wholly on the grounds of capacity to perform the work for which he was employed. The Unfair Dismissals Acts at Section 6(4) as amended states: “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,”

There is no dispute between the parties that the Complainant was from November 2016 up to and beyond the date of dismissal in January 2018 incapable of performing the work for which he was employed. The Respondent engaged with the Complainant continuously during this period of absence. In fact, the employer went above and beyond what would be reasonably expected of them even holding the Complainant’s position open after had left the country and accepting medical certificates for longer periods than normal.

It was submitted that the case of Dunnes Stores Ltd v Elaine O'Brien UDD1714 is relevant where the Labour Court considered the application of section 6(4)(a) of the Act. The LC stated:

“it is not for the Court to establish whether the Complainant was incapable to carry out her duties but rather it is sufficient that the Respondent honestly believed on reasonable grounds that she was”.

In applying this ratio to the facts of the instant case it is important to note the Complainant own statements as well as the medical advice. At the welfare meeting which precipitated the termination the Complainant’s employment he stated that he did not want to return to a manual handling role because of his back problem. The OH medical report also stated that the Complainant told him that he did not want to go back to his previous role as a warehouse operative for fear of aggravating his back.

It is submitted that the Complainant was incapable of performing the work for which he was employed. He confirmed this up to and including his appeal meeting and the position was supported by the Occupational Health doctor.

The Unfair Dismissals Act, 1977 states that;

“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

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,

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

in the High Court case of Bulger vs Showerings (Ireland) Limited [1990] E.L.R. 184, Lardner J found as follows: “for the employer to show that the dismissal was fair, he must show that:

(1)    “It was the ill health which was a reason for the dismissal;

(2)    that this was substantial reason;

(3)    that the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4)    that the employee was offered and an opportunity to be heard”.

The EAT, in finding that the dismissal was unfair stated in the case of Hoey v White Horse Insurance Ireland Ltd, UD1519/2013 MN118/2014, that “the Respondent did not abide by its own disciplinary procedures and more importantly did not alert the Complainant to the possibility that the question of dismissal was a would be considered at the meeting the claimant was never informed that is was in effect a dismissal meeting at which heart dismissal would be considered.”

The burden of proof rests with the Respondent to demonstrate the dismissal was neither substantially or procedurally unfair.

The Respondent’s case is that the Complainant was dismissed because there were reasonable grounds to believe that he was no longer capable of carrying out his duties as a warehouse operative. The Complainant himself had accepted that he could no longer work as a warehouse operative because it involved lifting and he was fearful of causing further injury to his back.

The unions case is that the Complainant was dismissed as a welfare meeting in breach of the Respondents own Disciplinary Procedures without any adequate notice that his dismissal was on the agenda and he was given no right of representation at such a meeting.

I note that the Complainant was dismissed at a welfare meeting with the HR manager on the 18th of January 2018 and this meeting appears to have been called to discuss the medical report from the Respondent’s OH Doctor. While there was a union person present at the meeting he was only there in the capacity of a witness and could not speak and behalf of the Complainant. I also note that the Complainant was awaiting surgery on his back and was certified by his doctor as unfit for work.

The Respondent’s own Disciplinary Procedures provide for a range of disciplinary actions before dismissal from a verbal warning, first written warning, a final written warning and an investigation and disciplinary hearing and then dismissal. I note that none of these measures were applied before the Complainant was dismissed. A welfare meeting to discuss the medical report cannot be considered as an investigative and disciplinary hearing and does not comply with the Respondent’s own procedures nor the procedures set out in SI No146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures).   I note that the Respondent told the Complainant at one meeting in July 2017 that they could not hold his job open for him indefinitely. Other than that, there was no indication in any of the meetings or correspondence with the Complainant that his dismissal was being contemplated.

In evidence the HR manager stated that the welfare meeting was not a disciplinary meeting and it would be in breach of Union /Management collective agreements to use the Disciplinary Procedures for dismissals due to incapacity as there was no issue with discipline. However, I note that the Respondent, in the letter of dismissal, gave the Complainant a right to appeal his dismissal under the Disciplinary Procedures. Therefore, I cannot accept that the Respondent argument that is that it was not appropriate to conduct a proper investigation and disciplinary hearing in accordance with its own procedures before imposing the ultimate sanction of dismissal.

In all cases of dismissal including in cases where an employee is being dismissed for incapacity, the employer is obliged to follow and apply fair procedures and natural justice. In applying the jurisprudence in the High Court case of Bulger v. Showerings Ireland) Ltd, and the EAT case of Hoey v White Horse Insurance Ireland Ltd, cited above, I find that, in circumstances where the Complainant was not notified that his dismissal was under consideration, nor was he notified that the purpose of the meeting was to dismiss him and that he should bring his representative to the welfare meeting, that the dismissal was in breach of procedures and was unfair.

In assessing redress, I note from the complainant’s evidence that he was declared fit for work towards the end of May 2018. He said that he started looking for work once he was fit and got employment on the 18th September 2019 earning €200 per week less. Taking all of these factors into account, I award the Complainant redress in the amount of €10,000.

I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and I order the Respondent to pay the Complainant redress of €10,000.

Unfair Dismissals Act, capability, fair procedures.