Complainant

Respondent

Anonymised Parties

Retained Fireman

Local Authority

Representatives

Niall Phillips SIPTU

Tony Cummins HR Consultant

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-00020154-001

03/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00020154-002

03/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00020154-003

03/07/2018

Introduction

1.       Adjudicator, the case before you today has been referred under the Unfair Dismissals Acts, the Minimum Notice and Terms of Employment Act and the Industrial Relations Acts.

2.       The complainant (hereafter referred to as “the complainant”) is an permanent full time employee with the respondent (hereafter referred to as “the respondent”) working initially in the repair and maintenance in housing in the C area and moved approximately three years ago into water, carrying out repair and refurbishment work for Irish Water. The claimant is a semi-skilled employee. The claimant was also employed by as a retained firefighter working from the C station until his dismissal by way of letter dated 4th December 2017. (Appendix 1) It is this dismissal from the Fire Service that forms the complaint before the Adjudication Officer today.

Background

3.       Adjudicator, the claimant has been employed by the respondent as a firefighter in the retained fire service since 1st April 1998 in the C Fire Station and began working with the respondent as a General Operative in 2000. In recent years the claimant has worked in the maintenance of housing in the C area and was an acting craftsman for some of this time. The claimant is now working as a semi-skilled operative in water services and was moved to this position just over three years ago. The claimant continued to carry out the dual role of firefighter and council semi-skilled worker for the respondent until his notice of dismissal from the fire service on the 1st December 2017.

4.       C Station was built in 1990 with modern training facilities and at one time there were a total 11 personnel in the Brigade. However, the C Station closed on 20th January 2017 due to “a shortage of available staff”, (Appendix 2) and has remained closed to this date. All fire drills and training for the remaining fire fighters ceased on that date also.

5.       Despite the fact that the C Station was closed the complainant was requested to attend a standard medical check-up by the respondent and did so on the 20/2/17. A letter from Dr O.F, , dated 1st March 2017, confirmed that the complainant was found to have inadequate fitness levels and would be re-tested in 3 months from that time. (Appendix 3)

6.       The complainant attended Dr O’F on the 29th May 2017 for a repeat test and once more he failed to meet the required fitness levels. This was not conveyed to the complainant on the day but was confirmed to the complainant in writing by Ms ML, on the 30th May 2017. (Appendix 4) This letter from Ms ML confirmed that the complainant had 14 days in which to lodge an appeal under the provisions of the Occupational Health Scheme for Members of the Retained Fire Service. (Appendix 5) The letter confirmed that the appeal system would consist of a further independent medical examination by an Occupational Health Physician and that the decision of the doctor carrying out the appeal process is final and binding on both parties, i.e. the complainant and the respondent.

7.       A letter dated 5th July 2017 from the respondent to the complainant confirmed that the independent medical assessment would take place on the 12th July 2017 and would be carried out by Doctor C.McD EHA. However, the complainant could not attend this appointment as he had had surgery on his shoulder in June 2017 to correct damage caused by a work-related incident some years previous.

8.       A letter from Dr KK, Consultant Orthopaedic Surgeon, dated 20th October 2017, confirmed that the complainant had undergone athroscopy and subacromial decompression surgery to his right shoulder on the 12th June 2017. (Appendix 6) This letter goes on to state that the complainant’s recovery had been slow following the surgery and unfortunately, he continued to have painful symptoms and as a result was out of work since the surgery. Dr KK was hopeful that the complainant would be able to return to work on Tuesday 31st October 2017. The complainant sent a copy of this letter to the respondent.

9.       The respondent contacted the complainant shortly afterwards to confirm that he could not return to work as a fire fighter until he attended for a further medical. The complainant sent an email to the respondent on the 26th October confirming that he would be returning to work on Tuesday 31st October 2017, as per the letter at Appendix 6, and stated that he would be attending the medical “under protest” as he felt he had been given no other option but to do so by the respondent. (Appendix 7) The complainant received a letter on the 27th October 2017 confirming that a further medical appointment had been scheduled for Wednesday 15th November 2017 with Dr C.McD. (Appendix 8)

10.   The complainant attended the scheduled medical, under protest, on the 15th November 2017. During this medical assessment the complainant was informed that he had failed the Chester Step Test due to an elevated heart rate. Dr .H (Consultant Occupational Physician) also confirmed to him, on the day, that she would re-test him in 8 weeks from that time.

11.   It came as a complete shock to the complainant when he received correspondence from the respondent on the 4th December 2017 confirming that as a result of him failing the medical on the 15th November 2017 that his employment as a Fire Fighter was terminated effective from 1st December 2017. (Appendix 1) On the 9th December 2017 the complainant received a copy of the Order confirming the termination. (Appendix 9)

12.   On the 3rd July 2018 this matter was referred to the Workplace Relations Adjudication Services. (Appendix 10)

The Complainant’s Case

13.   Adjudication Officer, the complainant’s contract of employment was terminated on the 1st December 2017 and notified on the 4th December 2017 as per Appendix 1. The complainant was employed by the respondent on the 25th May 1998, giving him approximately 19 years and 6 months service. (Appendix 11, Contract of Employment) The complainant did not receive his statutory notice entitlements. Section 4 of the Minimum Notice and Terms of Employment Act states; 4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 4(5) states; Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section. Section 8 ‘Right to terminate contract of employment without notice’ states;

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

As the complainant had over 19 years’ service with the respondent, as his termination was not because of misconduct and as the complainant had not been the subject of a disciplinary procedure he was entitled under law and under the Act to 8 weeks minimum notice. This was not a summary dismissal. This minimum notice when added to the termination date of the 1st December 2017 (or 4th December 2017, when he first received notice of the termination) brings his official termination date to 26th January 2018.

14.  Unfair Dismissal’s Act - Adjudicator, the complainant believes that he was unfairly dismissed by the respondent for the following reasons; (a) That the decision to terminate his employment was unfair, unreasonable and unwarranted. (b) Fair procedures were not followed in effecting the termination.

15.  Section 6 (1) of the Act states; ‘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. Section 6(4) 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, (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 his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

16.  The complainant believes that there were no substantial grounds to dismiss him at that time as he had a legitimate expectation to attend for a re-examination following the medical appeal test on the 15th November 2017. During the medical examination on the 15th November 2017, the complainant was informed by the attending Doctor that he had failed the medical test but that he would be re-examined in 8 weeks. Therefore, it came as a complete shock to the complainant when the respondent dismissed him on the 1st December 2017. There is no appeal mechanism available to the complainant under the Occupational Health Scheme of July 2005 (Appendix 5) in dealing with this particular scenario as the scheme clearly states, ‘the decision of the Doctor carrying out the examination under the appeal process is final and binding on both the employee and local authority.’ The complainant would have accepted this had it not been for the appeal Doctor advising him that she would re-examine him in 8 weeks. As far as the complainant was concerned this was the ‘the decision of the Doctor carrying out the examination’ and as such both he and the respondent were bound by it.

17.  When the complainant received the letter terminating his employment with the Fire Service he immediately contacted the appeal Doctors surgery and following a discussion with an administrator he lodged a freedom of information request. The documents at Appendix 12 were retrieved through this F.O.I. request and clearly show that on receipt of the Doctors decision the respondent, represented by Ms ML, ensured that the final document/decision received from the Doctor would have no mention of a re-ex-amination, even though the respondent, like the claimant, was bound by the decision of that Doctor.

18.  The first email from Ms ML to Dr.McD (Monday 20 November 2017 11:45) refers to the complainant’s medical on the 15th November 2017 and in particular to a certificate which Ms ML received. Ms ML notes “that the certificate confirms that the claimant is temporarily unfit and should be referred for re-examination in 8 weeks.” Ms MLthen states that “the appeal’s process does not provide for a review period should the firefighter fail the assessment on appeal” and by doing so limits and directs the Doctor to confirm whether or not the complainant is permanently unfit to resume duty.

19.  On the 22nd November 2017 09:22 Occ Health conform to Ms ML’s request and provide an “updated cert per Dr.”

20.  Ms ML follows up with another email to Occ Health on the 30th November 2017 requesting a letter from the Occupational Health Specialist who examined the complainant confirming that he did not meet the fitness standard required for active firefighting duties based on chester step test result on the day he was examined, i.e. 15th November 2017.

21.  A letter from Occ Health followed on the 1st December 2017 states: “He does not currently meet the fitness standard required for active Firefighting duties, based on the Chester Step Test Result.” (Appendix 12)

22.  As can be seen from the email referred to at section 18, Ms ML clearly requests the Doctor to confirm whether or not the complainant is “permanently” unfit to resume duty. However, the final letter from Doctor H does not confirm this and states that he, the complainant, “does not currentlymeet the fitness standard required for active Firefighting duties…” All of this information retrieved under the F.O.I. suggests that the respondent acted hastily in effecting the complainant’s termination. It is clear that the respondent, through its agent Ms ML, having sought confirmation as to whether or not the complainant was permanently unfit, and having received a response which did not confirm this, immediately set about, on the very day of receiving the final response, i.e. 1st December 2017, to terminate the complainant’s employment with the Fire Service. These actions by the respondent were unreasonable and portrays the actions of an employer who, while not only acting hastily, also acts in disregard for the principles of natural justice and due process. The complainant had a legitimate expectation for a re-examination, but Ms ML ensured this would be denied him.

23.  Adjudicator, the Physical Fitness Test which the complainant failed is the Chester Step Test. The testing procedure states: ‘For the test to be a valid indicator of aerobic capacity it should take place in a quiet room at a temperature of 18-20 degree Celsius. The subject should refrain from participating in any vigorous activity prior to taking the test which should not be administered immediately following the drinking of coffee or tea or smoking.It is advisable for the test to be postponed if the subject is recovering from a debilitating illness…’ The procedure goes on to state at the Conclusion: ‘Although the VO2 (max) should be reproducible from day to day, it is possible for it to decrease temporarily following illness, vigorous exercise etc. Therefore, to be fair to those candidates falling into this category it would be prudent for the test to be carried out by the medical officer during the initial medical examination. The medical officer should best be able to assess the situation, and, if necessary, recommend a re-test at a later date when recovery is complete.’ The procedure concludes as follows: ‘If an individual fails to achieve the minimum level appropriate to the age group, then he/she should be put on a programme to achieve an improved level of aerobic fitness through fitness training and diet. A reasonable period of time (e.g. 6 months) should be allowed before another test is conducted, during which time the individual should make a positive effort towards attaining an acceptable level of aerobic fitness and body weight in order to continue to work as a fire fighter.’ (Appendix 5)

24.  Adjudicator, the complainant first failed a medical on the 20th February 2017 when he attend Dr B O’F, Occupational Health Physician, Co Galway. The complainant failed this medical and was not put on a programme to achieve an improved level of aerobic fitness through training and diet. Dr O’F simply recommended that the complainant be re-examined in 12 weeks. This recommendation denied the complainant a reasonable period of time in which to reach the required level of fitness, i.e. 12 weeks as opposed to the example of 24 weeks as set out in the procedure as well as failing to put him on a programme to achieve this fitness level.

25.  At this stage, it is worth reminding the Adjudicator that the C Station had closed due to staffing levels in early January, and the complainant was not attending for any fire drills or training due to the closure. The complainant was not an active Fire Fighter at that time or indeed at any-time during this fiasco. On top of this the complainant was having difficulties with his shoulder injury and was not able to train as much as he would have liked. This was acknowledged by Dr O’F his letter at Appendix 3. Nevertheless, the complainant was instructed to attend for a further medical on the 29th May 2017 and once again failed. Dr O’F certified that the complainant was not fit to continue in active service.

26.  The complainant had surgery on his shoulder on the 12th June 2017 and on the 20th June, he lodged an appeal against this decision, as was his right under the Occupational Health Scheme. The respondent showed no empathy or consideration for the complainant when they wrote to him on the 5th July 2017 informing him that his appeal medical would take place on the 12th July. The complainant contacted the respondent and confirmed his unavailability and inability to attend. This appeal medical was then re-scheduled for 15th November 2017, just 5 months after the complainant had had surgery, giving him no time to prepare for and to improve his aerobic condition. A letter from Mr KK, Consultant Othhpaedic Surgeon, dated 20th October 2017, confirms that the complainant’s recovery has been slow following the surgery and unfortunately, he continues to have painful symptoms. (Appendix 6) On the 26th October 2017 (Appendix 7) the complainant sent an email to Ms ML which states: “…With regard to the medical in Limerick, I wish to state that I will be attending this medical under protest as I have been given no other option by the respondent.” The complainant sent this email in order to record his concerns with the fact that he was being instructed to attend for a medical which he was not prepared for. The complainant believes that the respondent acted unreasonably in insisting that he attend on the 15th November 2017, knowing that he had surgery some 5 months earlier, knowing his recovery from said surgery was slow and that he continued to have painful symptoms, thus preventing him from exercising and improving his aerobic condition. In short, the complainant believes that he was being set up to fail the medical.

27.  Adjudicator, the respondent overlooked one important factor when terminating the complainant’s employment and that is ‘the need to dismiss.’ It is argued that the dismissal must be related to the requirements of the business. In this case the respondent cannot show that dismissal was necessary for good commercial reasons. For example, up to the complainant’s dismissal the fire station in C had been closed since early January of that year, had not re-opened at the time of dismissal nor has it since re-opened. Dr.O,F stated in his report of 29th May 2017 that the complainant was “not fit to continue in active service.” Dr H on the 1st December 2017 states that the complainant “does not currently meet the fitness standard required for active Firefighting duties…” All the while the complainant has been deemed unfit for active duties his place of work has been closed and he therefore, whether fit or not, is not an active firefighter. The respondent only had to abide by the binding decision of Dr H and allow for a follow up medical assessment. If the complainant failed, then he had no further recourse and had he been allowed to re-test and passed then we would have no need to be here today. In McGrane v Mater Private Nursing Home UD 369/85 the claimant was dismissed by reason of her high level of absence. The EAT noted that there was no pressure on the employer to replace the employee and there was effectively no reason to dismiss. The dismissal was held to be unfair.[1] In McElhinney v Templemore Co-Operative Society Ltd UD 434/82 the EAT commented: ‘In cases of ill health the basic question that has to be determined in every case is whether in all the circumstances the employer can be expected to wait any longer and, if so, how much longer. The nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do – and these presumably will vary with the size of the employing organisation. In some cases, four to six weeks may justify dismissal, in others six months may not. What is reasonable will depend on the circumstances.’[2]

Conclusion

28.  Adjudicator, the complainant is aware that the Unfair dismissal legislation provides for three possible remedies as follows: (a) reinstatement, (b) re-engagement; or (c) compensation The complainant is aware that he cannot be reinstated or re-engaged in the position of firefighter without passing the medical assessment and is aware that you may not be able to award either while he is presently deemed unfit. The complainant wants to return to work as a firefighter and believes that his experience would be beneficial to the respondent should they deem it necessary to re-open the C Station. The complainant is requesting that you find his dismissal to be unfair and award him re-instatement or re-engagement dependant on him being allowed to prepare for and to pass a medical re-assessment.

29.  The complainant requests that you find in his favour for the following reasons; (a) He had a legitimate expectation to attend for a re-examination which was deliberately thwarted by the respondent. (b) The respondent failed to adhere to the Physical Fitness Test procedures, by not allowing him a reasonable period of time to improve his aerobic fitness levels between medicals, failed to provide him with a programme and diet to enable him to achieve an improved level of aerobic fitness, failed to acknowledge his slow recovery from surgery due to a work related shoulder injury, and failed to abide by the appeal medical Doctors decision. (c) There was no need to dismiss him as he was not an active Fire Fighter at that time nor was he expected to be available to attend fires due to the closure of the C Station in early January 2017. This Station which remains closed to this day. (d) As a dual employee the respondent should have shown the complainant more opportunity to improve and to prove his fitness. (e) He was denied due process and natural justice.

30.  The complainant is also seeking compensation under the IR Acts for the manner in which the respondent has mishandled this situation which has caused the complaint and his family much worry and distress.

Thank you.

1.0         Introduction

1.1       Adjudicator, the case before you relates to a complaint made by a former part time retained Fire Fighter of the respondent. The complainant is seeking adjudication by the Workplace Relations Commission under the provisions of Section 8 of the Unfair Dismissals Act 1977, Section 13 of the Industrial Relations Act 1969, Section 11 of the Minimum Notice and Terms of Employment Act 1973 and Section 6 of The Payment of Wages Act 1991

2.0          Background

2.1              The complainant, commenced employment with the respondent as a part time retained firefighter in the CFire Brigade on 20th April 1998 and signed his Contract of Employment on 25th May 1998. His employment contract as Retained Fire Fighter was terminated effective from 11th February 2017.   The complainant continuous to be employed on a full-time basis by the respondent as a Semi Skilled Operative. This full-time employment with the Council commenced on 14th December 2001 – Appendix 1

2.2              The circumstances leading to the termination of the complainant’s contract of employment with the respondent from his post as Retained Fire Fighter arose from his failure to meet the requirements under the Occupational Health Scheme for Members of the Retained Fire Service – Appendix 2

2.3              The fire service is a frontline emergency service. It is made up of staff, trained, equipped and available to respond to a variety of emergency situations which arise. To ensure that Fire Fighters are capable of safely and efficiently undertaking the tasks which they are required to perform, it is necessary to put in place arrangements for ensuring that Fire fighters are healthy and fit to carry out their duties in a safe manner. This is in the interests of the Fire Fighters themselves, their colleagues, their employer and the public.

2.3         The frequency of medical examinations for Fire Fighters is set out in the Occupational Health Scheme. The frequency for the complainant is every 2 years. However, if deemed necessary a Fire Fighter may be referred to the medical advisor in between routine medical examinations.

2.4          On 16th December 2016 the complainant was notified that an examination had been arranged for 3rd February 2017 - Appendix 3 in accordance with the Occupational Health Scheme and in accordance with the National Agreement dated 28th May 2010 between SIPTU and the Local Government Services Board (LGMSB) – Appendix 4. The complainant was unable to attend, and the medical examination was rearranged for 20th February 2017.

2.5          On 20th February 2017 the Occupational Health Physician to whom the complainant was referred certified that the complainant was fit to continue in service at present but that he should be referred for reexamination in 12 weeks – Appendix 5. Notification to this effect was communicated to the complainant on 27th February 2017 – Appendix 6.

2.6          A further Occupational health examination was arranged for Monday, 29th May 2017. Following this examination, the Occupational Health Physician certified that the complainant’s VO2 Max was calculated to be 36.4 which did not meet the prescribed standard for his age – Appendix 7. The OH Physician further certified that the complainant was not therefore fit to continue in active service the suggested minimum VO2 Max values for serving Fire Fighters is set out on Table 4, page 21 of the Occupational Health Scheme.

2.7          On 30th May 2017 the complainant was notified of the outcome of the occupational health examination and he was informed that under the provision of the scheme he had 14 days in which to lodge an appeal i.e. by 20th June 2017. The notice also stated that the appeal must be in writing setting out the grounds for the appeal and it was explained that the appeal system would consist of a further independent medical examination by an Occupational Health Physician. The decision of the doctor carrying out the examination under the process is final and binding on both the employee and the local authority – Appendix 8.

2.8          On 20th June 2017 a letter was received from the complainant’s solicitors (Gilbarry & Associates Solicitors, Castlebar, Co Mayo) confirming that the complainant had instructed them to lodge the letter as an appeal on behalf of the complainant. The letter also stated that the solicitors would be representing him in the appeals process - Appendix 9

2.9          On 5th July 2017 the complainant was notified that a further independent occupational health check had been arranged on Wednesday, 12th July 2017 – Appendix 10.

2.10       On 21st July 2017 a letter was received from Gilbarry & Associates Solicitors on behalf of the complainant stating that the complainant was not currently fit to undergo a medical – Appendix 11.

2.11       On 31st July 2017 a response was issued to the complainant’s solicitors explaining the process and confirming that the complainant’s OH examination under the appeals process was rescheduled to 23rd August 2017 – Appendix 12.

2.12       On 3rd August 2017 an email was received from the complainant stating that he was unable to return to work for at least 8 weeks from 1st August enclosing medical certification from his own consultant to this effect – Appendix 13. The complainant was subsequently notified that the occupational health examination scheduled to take place on the 23rd August 2017 under the appeals process had been cancelled and would be rescheduled to a date when he was certified fit to attend.

2.13       On 11th August 2017 a further letter was received from the complainant’s solicitor questioning the provisions of the Occupational Health Scheme – Appendix 14. A response was issued on 8th September 2017 (delayed due to annual leave arrangements) explaining the details contained in the scheme and confirming that a further OH examination was being arranged – Appendix 15.

2.14       The OH examination under the appeals process was rearranged for 2nd October 2017 and the complainant was notified of this on 22nd September 2017 – Appendix 16. On 28th September 2017 a letter was submitted from the complainant’s consultant stating that the complainant would hopefully be fit to return to work on 31st October 2017 – Appendix 17. A further letter was also submitted by the complainant’s solicitor querying the process regarding the physician carrying out the medical examination stating that the complainant would not be agreeing to an assessment by any doctor unless agreed between the complainant and the respondent– Appendix 18. A response issued on 10th October 2017 reminding the complainants solicitor of the provision of the Occupational Health Scheme stating that the scheme clearly states that the appeal system would consist of an independent Occupational Physician “appointed by the Local Authority” – Appendix 19.

2.15       On 26th October 2017 an email was received from the complainant confirming that he would be returning to work (in his full-time role as Semi Skilled Operative on 31st October 2017) and that he would be attending for medical under the appeals process – Appendix 20. The medical assessment was subsequently rescheduled for 15th November 2017 – Appendix 21.

2.16       On 1st December 2017 a report was received from the independent Occupational Physician stating that the complainant had attended for examination as Retained Fire Fighter in the C Fire Brigade on 15th November 2017. The report certified that the complainant did not meet the fitness standard required for active firefighting duties based on the Chester Step Test results- Appendix 22.

2.17       On 4th December 2017 a notice issued to the complainant confirming the outcome of the occupational health examination. He was also informed that the decision of the doctor carrying out the examination under the appeals process was final and binding on both the employee and the local authority and that on this basis his employment as a Fire Fighter with the respondent was being terminated effective from 1st December 2017 – Appendix 23.

2.17       On 19th December 2017 the complainant was notified that following his appeal under the Occupational Health Scheme for Members of the Retained Fire Service he no longer satisfied the fitness standard required and accordingly his employment was terminated effective from 1st December 2017. A copy of Chief Executive’s order confirming the termination of employment was attached to the letter addressed to the complainant dated 19th December 2017 – Appendix 24.

3.0       Conclusion

3.1      The process leading to the termination of the complainant’s employment as Part-Time Retained Fire Fighter with Roscommon County Council was carried out in accordance with the provisions of the agreed Occupational Health Scheme for Members of the Retained Fire Service. The termination of his employment was fair in all respects and was and adhered to the process stipulated in the Occupational Health Scheme. The medical examinations were rescheduled on numerous occasions to facilitate the complainant to return to a fitness level that would satisfy the requirements of the Occupational Health Scheme. The complainant’s appeal was dealt with in accordance with the scheme which states “the appeals system will consist of an independent Occupational Physician in a suitable geographic location appointed by the local authority. A specialist in occupational medicine should conduct the medical examination in the case of the appeal. The decision of the doctor carrying out the examination under the appeal process is final and binding on both the employee and local authority.” Particulars and conditions of service signed by the complainant on 25th May 1998 includes a provision that “Fire Fighters must be free from any defect, disease, physical or psychological condition and must be in a state of health such as would indicate a reasonable prospect of ability to render regular and sufficient service.” A gratuity is payable to the complainant from the date of termination of employment based on length of service as a Part Time Retained Fire Fighter.

3.2          On the basis of the foregoing the respondent requests the adjudicator to find in its favour in this case.

I have reviewed the evidence presented at the hearing and noted the submissions of the parties.The respondent argued that both complaints were out of time as the date of dismissal was the1st.Dec 2017 when the termination order was signed by the CEO.

The union insisted the complaints were in time on the basis that the employer failed to give the claimant due notice of 8 weeks in circumstances where the termination did not arise from misconduct.The provisions of Section 8 of the Minimum Notice and Terms of Employment Act 1973 were relied upon in this regard.

I have considered the submissions of both parties and having regard to the respondent’s acceptance   that the termination did not arise from a disciplinary matter , I accept the union’s contention that the claimant’s date of dismissal – having regard to Section 1(b) of the Unfair Dismissals Act 1977 is the 26th.January 2018.Accordingly , I deem both complaints to be on time.

I have considered all of the evidence tendered in relation to the complaint of unfair dismissal and note in particular the provisions of Occupational Health Scheme for members of the retained Fire Service which provide that the decision of the doctor carrying out the examination under the appeal process is binding on both parties. While I acknowledge the assertions by the respondent that they did not engage in the alteration of documents, the final assessment of the claimant specified that the claimant is “Temporarily unfit to continue in service at present”. It is noteworthy that this was not disclosed to the claimant who only learned of this determination by way of an FOI request. In light of this medical determination , I find the respondent was pre-emptive in dismissing the claimant   and that the respondent should have accepted the doctor’s determination and invoked the final paragraph of the scheme which provides that “ If an individual fails to achieve the minimum level appropriate to the age group , then he/she should be put on a programme to achieve an improved level of aerobic fitness through fitness training and diet. A reasonable period of time (e.g. 6 months) should be allowed before another test is conducted, during which the individual should make a positive effort towards attaining an acceptable level of aerobic fitness and body weight in order to continue to work as a fire fighter”.

Consequently, I find the claimant was unfairly dismissed. In all of the circumstances, I require the respondent to re- engage the claimant subject to his successfully passing the required medical test. The timing of the test should be the subject of mutual agreement between the parties.

In light of the requirement to re-engage the claimant the issue of notice does not arise.