Complainant

Respondent

Anonymised Parties

A retail worker

A retail chain

Representatives

Gary Matthews Solicitors

Fleur O'Shea ByrneWallace Solicitors

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-00011867-001

13/06/2017

The Complainant commenced employment with the Respondent on 21/01/2008, she was employed as a sales assistant in the Respondent’s store in County Wicklow.

The Complainant was injured in a workplace accident on 31/03/2015 that resulted in her absence from work until the date of her dismissal on 28th March 2017. The Complainant submitted medical certificates to the Respondent throughout this period.

The Complainant submitted her complaint to the Workplace Relations Commission on 13/06/2017.

At the time of dismissal, the Complainant was earning €380.00 per 37.5-hour week.

The Representative of the Complainant submitted a comprehensive booklet of papers to the hearing, these included the following:

1.       Application to the WRC.

2.       WRC Correspondence.

3.       Contract of Employment.

4.       Correspondence re termination.

5.       DSW Payments

6.       Qualifications.

By way of verbal submission, the representative of the Complainant raised the following points:

1.       The Complainant was unfairly dismissed.

2.       The Complainant, due to her injuries, was unable to provide a ‘return to work date’.

3.       The Complainant was available for work – any reasonable accommodation to facilitate her return to work was denied by the Respondent.

4.       The Complainant was not afforded due process throughout the two years.

5.       The Complainant provided medical evidence that she was unfit for work.

6.       In relation to the letter dated 15/04/2015 from the Complainant to the Respondent there was no consideration given to the content of this letter.

7.       The Respondent was putting pressure on the Complainant to resign.

8.       The advice of an independent doctor was never requested by the Respondent.

9.       After the termination in relation to an appeal, there was no hearing granted to the Complainant, the issue was considered on the facts contained within the letter of appeal submitted by the Complainant. She was denied the opportunity to be heard.

10.   In an effort to mitigate her loss the Complainant has completed some educational courses but has still to find alternative employment.

11.   The Complainant was in receipt of illness benefit to June 2018.

Following an accident in the workplace on 31st March 2015 the Complainant went absent from work and remained absent until the termination of her employment on 28th March 2017, a period of two years.

The Medical certificates provided by the Complainant throughout this period cited an injury to her left knee and latterly lower back pain as the reason for the absence.

On 9th April 2015 the Complainant’s GP wrote a letter advising that the Complainant was unable to “squat or lift heavy objects” and that “stationary work would be advisable”.

Following this letter from the GP the Complainant wrote to the store manager stating:

“I have been certified fit to return to work by my doctor, as was outlined to you in writing. My doctor has recommended light duties at this present moment in time i.e. no kneeling, pushing or pulling of heavy items etc.

It was further suggested that I would be capable and fit to work in such areas as the tills, EPOS for example. Given the fact that my injury was sustained in work I do not think it to be an unreasonable request for the company to facilitate my request to work on light duties until my condition has improved”.

On 23rd April 2015 the store manager met with the Complainant to discuss the content of this letter and to request an update on her condition. At this meeting the Complainant advised that she was “80% and that she was awaiting an MRI scan to investigate the problems she was having with her knee. The Complainant informed that she had attended one physiotherapy session and that she was not taking any medication. When asked when she would be fit to return to work she replied that she would be fit to return in a week to ten days. The store manager advised that as her employer he had a responsibility to ensure she was 100% before allowing her to return to work. The store manager further explained that even working at the checkouts involved squatting when getting on and off the chair.

On 6th May 2016 the Complainant’s physiotherapist wrote a letter advising that the Complainant had;

“a soft tissue injury to her left knee and pain is improving but not fully resolved. At present, kneeling on her knees is likely to exacerbate her pain and she anticipates that pushing heavy trolleys may also increase pain. She is eager to return to work but would benefit from avoiding exacerbating her left knee until her strength improves further”.

On 19th June 2015 the store manager wrote to the Complainant inviting her to a meeting on 26th June 2015.

At the meeting on 26th June the Complainant advised the store manager that she was not sure what was wrong with her knee and she was still waiting for a n MRI scan. After some discussion regarding what she could or could not do the Complainant informed the store manager that she would be returning to work the following week and if she was not allowed to work she would “be making big trouble” for him. The Complainant then walked out of the meeting.

On 12th August 2015, the Complainant’s medical practitioner certified that the Complainant had ongoing knee pain, had received an MRI scan and was waiting orthopaedic follow-up. The letter further advised that the orthopaedic follow-up seemed to have “faltered in the system” and that he was writing to the Complainant’s consultant in an effort to expediate things.

On 21st September 2015 the store manager wrote to the Complainant inviting her to attend a meeting on 30th September 2015 to discuss her absence and to establish a likely return to work date.

On 28th September 2015 the Complainant’s GP wrote that the Complainant;

“sustained an injury to her left knee and MRI investigation has confirmed a meniscal lesion/tear. The Complainant has been seen by the Orthopaedic specialists and has been listed for treatment. The Complainant is currently not fit to stand for long periods of time. She is however fit to return to light duties”.

On the same date the Complainant wrote to the store manager stating that she had been certified fit to return to work by her doctor who recommended light duties’ such as the checkouts.

The Complainant did not attend the meeting on 30th September and failed to notify the store manager that she would not be attending. On 5th October 2015 the store manager wrote to the Complainant asking her to attend a meeting on 14th October 2015.

On 14th October 2015 the Complainant met with the store manager and the HR Manager.   The Complainant advised at this meeting that she would have to wait for an injection in her knee before coming back to work but that she did not know when this would be. The store manager referenced the letter of 28th September 2015 from the Complainant’s Doctor in which it was stated that the Complainant could return to work on “light duties”. The store manager expressed concern about the possibility of the Complainant returning to work while still awaiting treatment, noting that this could pose a serious risk to the Complainant and her recovery.   The Complainant agreed that this was what had been said by her doctor and accepted that there would be a risk of her making her condition worse if she was to return to work. The store manager further advised the Complainant in this meeting that there was no job in the store that did not involve standing or lifting. He explained to the Complainant that after such time as the Complainant had completed her treatment they could look at getting the Complainant back to work gradually over a few weeks. The store manager suggested that this might involve a half day on the floor and a half day on checkouts. The Complainant acknowledged that her condition had not improved since the commencement of her sick leave.

The Complainant met with the HR Manager again on 21st January 2016 and informed her that she planned to return to Lithuania for a scan on her knee. The Complainant advised the HR Manager that she expected to be back in work in May 2016. The HR Manager explained to the Complainant that, while the Respondent was sympathetic to her situation, they could not keep her position open indefinitely.   The HR Manager however assured the Complainant that the proposed timeline for the Complainant’s return to work was acceptable and confirmed that the Respondent would work with the Complainant towards achieving this.

The Complainant met with the HR Manager again on 24th February 2016 and informed her that she was awaiting a date for a knee operation which she expected would take place in March.   The Complainant advised the HR Manager that the likely recovery period for such a surgery was six weeks and so she expected to return to work in May 2016. Again, the HR Manager explained to the Complainant that, whilst the Respondent was sympathetic to her situation, they could not keep her position open indefinitely. The HR Manager again assured the Complainant that the proposed timeline for the Complainant’s return to work was acceptable and confirmed that the Respondent would work with the Complainant towards achieving this.

The Complainant underwent surgery in her left knee in Lithuania on 17th March 2016.   In a document (translated into English from Lithuanian) of the same date, summarising the background to the Complainant’s surgery and the next steps in her treatment plan, the treating physician certified that:

“since the patient has suffered aforementioned injuries she has been advised to avoid hard physical work in the future and pushing of heaving objects (carts, pallets)”.

On 28th April 2016 the Complainant’s medical practitioner certified that the Complainant underwent arthroscopy and meniscal repair six weeks previously and that she now required three months of rehabilitation. The letter estimated that an addition three-month period might be required for “full return” but that a full recovery could now be anticipated.

In a document (translated into English from Lithuanian) dated 25th May 2016 the Complainant’s treating physician recommended that:

“1. The patient is recommended to continue rehabilitation treatment.

2. Painkillers when necessary.

3. The patient is recommended to work non-manual work.

4. As a result of injury the patient is recommended to avoid kneeling during physical exertion.

5. The patient is recommended to avoid turning around up to 90 degrees while standing in one place in order to place/take down a heavy object (e.g. a box).”

The store manager wrote to the Complainant on 9th January 2017 inviting her to attend another meeting on 17th January 2017 to discuss the Complainant’s medical condition and to seek a definite date of return to work. The store manager requested that the Complainant bring along any reports or any other information that she wished the Respondent to consider at the meeting. The store manager explained to the Complainant that the Respondent had been fair in holding the Complainant’s position open for almost two years but that they could not continue to do so. The store manager warned the Complainant that, if her position remained the same, and she could not provide any indication of an early return to work date, he may be left with no alternative but to make a decision regarding the Complainant’s position, including termination of her contract.

On 17th January 2017 the Complainant met with the store manager and the HR Manager.   The store manager asked the Complainant how she was, the Complainant stated that she was “not good” and that she had “spine problems now”. The Complainant advised that she would be returning to Lithuania for scans on her spine on 7th February 2017 and that she had another appointment in Ireland on 14th February. The Complainant further advised that her knee was “not too bad” but that she could not walk for long periods of time. The Complainant stated that she was receiving injections for pain three times a year in Lithuania.

The store manager explained to the Complainant that she had been out to work for almost two years now and that, while the Respondent had been patient, it could not keep the Complainant’s job open indefinitely. The store manager advised the Complainant that he would meet with the Complainant again following her appointments in Lithuania and Ireland. The store manager advised he would require a return to work date from the Complainant at this meeting or he would have no choice but to terminate the Complainant’s contract. When the store manager explained to the Complainant that all roles within the store involve some movement of stock, even checkouts, the Complainant confirmed that she understood this.

On 18th January 2017, the Complainant’s medical practitioner certified that the Complainant was having “multiple investigations and treatments to address her complex health needs”. Her GP explained that she had been asked to write a letter to seek, on the Complainant’s behalf, a further three months before a final decision would be made regarding the Complainant’s fitness to return to work with the Respondent.

On 23rd January 2017 the Complainant wrote to the store manager advising him that her doctor had certified her fit to return to work and that her doctor was recommending light duties i.e. no kneeling, pushing or pulling of heavy items etc.

On 6th February 2017 the store manager wrote to the Complainant inviting her to attend a meeting on 21st February 2017. Again, the store manager asked the Complainant to bring along any reports or other information she wished the store manager to consider on the day.   He further warned the Complainant that, if she could not provide any indication of an early return to work, that he would be left with no alternative but to terminate her employment.

In a document (translated into English from Lithuanian) dated 7th February 2017, the Complainant’s treating physician recommended that the Complainant avoid “axial load on the spine, pulling up and rotational movement involving the waist”.

On 21st February 2017, the Complainant’s medical practitioner certified that the Complainant “also has lower back pain”. This letter further advised that the Complainant was fit to return to work on light duties.

The Complainant attending a meeting with the store manager and HR manager on 21st February 2017. At this meeting the Complainant advised that her doctor would only allow her to return to work on light duties i.e. checkouts. The Complainant stated that she now had back pain and that, if this did not improve within two months, she would require injections for this too.   The store manager explained to the Complainant that, due to the physical nature of the work of a Sales Assistant, the Complainant must be fully fit to work and be able to work in all areas of the Store.

The Complainant stated that she did want to return to work, however, her doctors said that she could only return to light duties. She added that she had to be careful, having suffered cartilage deformation following her operation.

The store manager advised the Complainant that he wished to adjourn the meeting to consider matters further. When the meeting was reconvened, the store manager explained to the Complainant that the Respondent had been more than fair with her in keeping her position open but that they were not prepared to hold the position open any longer. It was clear to the store manager that, over the course of the previous two years, the Complainant’s condition had not improved. In fact, the Complainant’s condition appeared to be worsening over time with an additional debilitating condition – back pain – now emerging. This new issue had become a further impediment to the Complainant’s recovery and return to work.

In these circumstances, there appeared to be no reality to the Complainant returning to work in the near future, if at all. In the circumstances, the store manager decided to terminate the Complainant’s contract of employment. The store manager advised the Complainant of her right to appeal and she availed of that right under cover of letter dated 27th February 2017.   Having considered the Complainant’s appeal, the Appeals Manager upheld the dismissal.

LEGAL SUBMISSIONS – ROLE OF THE ADJUDICATION OFFICER

In these proceedings, the Complainant claims that she was unfairly dismissed by the Respondent. Section 6(1) of the Unfair Dismissals Act, 1977 provides that:

“(a) 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”.

The Respondent denies the within claim and asserts that there were substantial grounds justifying the termination of the Complainant’s contract of employment.   The Respondent further asserts that the dismissal was reasonable in all of the circumstances.

The Respondent submits that the totality of the case apparently being made by the Complainant’s representative amounts to nothing more than an attempt to re-run the disciplinary process. The Respondent submits that it cannot seriously be suggested that the sanction of dismissal, in all of the circumstances, was outside of the “band of reasonable responses” to the Complainant’s conduct.

The Respondent notes that it is not the role of the Adjudication Officer to substitute its views for that of the employer but rather to establish whether or not the decision to dismiss within the “band of reasonable responses “ available to an employer finding itself in the position of the Respondent.

The “band of reasonable responses” test was developed by the English Courts in response to a tendency by Industrial Tribunals (now referred to as the Employment Tribunals, which are the English equivalent of the Employment Appeals Tribunal / Labour Court)j the English Employment appeals Tribunal is chaired by a Queens Counsel or High Court Judge to deal with cases on the basis that there was only one objectively fair and reasonable decision that could have been reached and that, if the decision taken by the employer did not agree with the decision that would have been taken by the Tribunal applying the “reasonable employer test” there as an unfair dismissal. In those circumstances, the Industrial Tribunal tended to substitute their view for that of the employer.

The flaws in this approach were confirmed by the Court of Appeal in Foley v Post Office (2000) ICR 1283. As stated by Mummery L.J (at p 1295):

“this case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer’s decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation is a reasonable response”.

This principle was elaborated upon by the same Judge in the decision of the Court of Appeal in Anglian Home Improvements Limited v Kelly (2005) ICR 242.

“the first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test.   The test has been well established since the early days of unfair dismissal claims. It is impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift (1981) IRLR 91, 93 para 11 cited by Mr Laddie. The test laid down there was:

“the correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take the view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both view may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him”.

Years later, the same test was confirmed by this court in Foley v Post Office (2000) ICR 1283”.

Foley v Post Office was cited with approval by McGovern J. of the Irish High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited (2008) IEHC 445:

“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office (2000) ICR 1283 at page 1295:

“The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances, and whether the decision to dismiss, in the light of the results of that investigation is a reasonable response”.

The application of the “band of reasonable responses” authorities in the context of unfair dismissal was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly (2015) 26 ELR 229:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.   That is however not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland Plc v Lindsay UK Employment Appeal Tribunal Determination UKEAT/0506/09/DM August 19, 2010.

I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v Purcell (2012) ELR 189, where she commented (at P4):

“reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift (1981) IRLR 91 and the following statement of Lord Denning MR at p.93:

“the correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take the view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him”.  

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

Conclusion.

The Respondent submits, that in circumstances where the Complainant was absent from work for almost two years, with her condition deteriorating instead of improving, the decision to dismiss fell within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

The Respondent has gone into extensive detail on the role of the Adjudication Officer in this case and the “range of reasonable responses”. In relation to the Role of the Adjudication Officer the Respondent quite correctly states:

The Respondent notes that it is not the role of the Adjudication Officer to substitute its views for that of the employer but rather to establish whether or not the decision to dismiss within the “band of reasonable responses “available to an employer finding itself in the position of the Respondent.

My role therefore is not to decide that the Complainant should have or should not have been dismissed. My role is to decide if the Respondent company acted in a reasonable manner in dismissing the Complainant.

There is a case I would draw attention to and that is the conclusion of the Labour Court in Dunnes Stores Ltd v O’Brien (UDD 1714) in which the Labour Court concluded that where there was no prospect of the claimant returning to work from her absence on sick leave in the foreseeable future, the Respondent had been entitled to dismiss her on the grounds that she was incapable of performing duties for which she had been engaged . In coming to this conclusion, the Labour Court declared itself satisfied that the Respondent had afforded the claimant fair notice regarding the possibility of her dismissal; the claimant had not been in a position at any stage to provide an indication of a return to work date and lastly, the claimant had been afforded an opportunity to be heard by the respondent.

In this instant case I am satisfied that the Respondent had provided fair notice of the possibility of dismissal to the Complainant, this possibility was first mentioned by the store manager in his letter dated 9th January 2017 and repeated again in his letter dated 6th February 2017.

At no stage was the Complainant in a position to provide a return to work date and it would appear that the Complainant’s condition was deteriorating rather than improving. I am also satisfied that the Complainant was given ample opportunities to be heard by the Respondent, several meetings took place.

In conclusion I find the complaint as presented at hearing not well found and it is for this reason that the complaint fails, the Complainant was not unfairly dismissed from her employment.

The Complainant was not unfairly dismissed from employment.