Complainant

Respondent

Anonymised Parties

An Engineer

A Local Authority

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-00015638-002

07/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015638-003

07/11/2017

The Respondent is a local authority. The Complainant commenced employment with the Respondent as a Technical Grade 1 Engineer on 20 April, 2006 and was assigned to work in the Infrastructure, Water Services and Environment Directorate during her period of employment.

The Complainant went absent from work on sick leave on 28 April, 2014 and did not return to work prior to the Respondent taking the decision to retire her on ill health grounds with effect from 31 May, 2017. The Complainant claims that she was unfairly dismissed from her employment.

The Respondent denies the claim of unfair dismissal and contends that it sought at all times to facilitate the Complainant to return to work. However, after a protracted period of over three years and on the basis of medical advice both from the Complainant’s doctor and the Respondent’s occupational health physician the Respondent, on the basis of such advice, indicated that the Complainant was not medically fit to provide further service to the local authority, and it made the decision to enable the Complainant to retire on health grounds.

The Complainant submits that in 2006, she joined the Respondent as a Technician with the Drawing Office. This role was essentially a “pool” type situation where she was deployed to various sections as required. After a period, she was assigned full time to Water Services.

The Complainant submits that there were initial issues with regard to alleged difficulties with time keeping and a certain view was taken by the Respondent in this regard. Moving on from that the Complainant took a career break from November 2008 to April, 2010. When she returned she moved into Building Control in Fire Services and also to Planning.

There was various sick leave taken by the Complainant. Some of this related to falling down a flight of stairs and she put out six vertebrae in her back for some months.   She was also beginning to experience some difficulties of a psychological nature complaining of stress and unfair treatment at work. There was various sick leave relating to this aspect and it was submitted that the Respondent’s management and staff would have had a growing awareness around this time that the Complainant was suffering increasingly from psychological issues. However, the Respondent and its staff treated the issues that manifested as a disciplinary and conduct-related as opposed to medical that required support, treatment and medical intervention.  

The Complainant was attending a medical practitioner in relation to this condition since 2008/ 2009. She was subsequently referred to – and attended – a psychiatrist in or around 2014 on several occasions. The Complainant was prescribed medication which she began taking. In or around 2014 the Complainant suffered a relapse and made certain allegations against a senior executive engineer in the Respondent, to the effect and intent that she, her partner and her sister had broken into her house on various occasions. The Complainant also raised this with an Garda Síochána and the Respondent. She very firmly and obviously believed this to be true at the time and was genuinely very distressed and upset. The Complainant spoke with Ms. B, who worked in HR in the Respondent and she made a diary note in or around 26th April, 2014 to the effect that the Complainant came to her with complaints, inter alia, of harassment in the workplace. She noted that the Complainant claimed that phone calls had been made to a Government Department (for whom the Complainant did certain proof reading) that she, (the Complainant) was not whom she pretended to be. She also recorded that the Complainant reported that the Respondent’s senior executive engineer had burgled her house with another person the previous weekend. She also recorded phone calls having been made to members of a Horse Riding Club of which she was a member by the Respondent’s staff. The Complainant went out on certified sick leave on or around the 28 April, 2014 and did not subsequently return to work.

The Complainant was attending her own GP, her own psychiatrist and also the Local Authority -nominated medical doctor. She also attended the Social Welfare nominated doctor and she was the recipient of critical illness payments during this period.

The Respondent subsequently took the view that it offered alternative positions to the Complainant, namely derelict site work. However, the Complainant felt that this would still result in having to work and be in close proximity with the Senior Executive Engineer and Director of Service and she felt unable so to do. The Complainant sought redeployment to another local authority or at least to a role within the Respondent where she would have the space and scope in which her path to recovery would be facilitated. However, the Respondent refused to consider redeployment to another local authority on the basis that it would have to certify that, in so doing, the position was superannuated and that would result in that local authority losing a staff place. The Respondent also refused to redeploy the Complainant to another suitable position within the local authority such as Conservation, the Museum, Property files or various other suitable position. None of these were acceded to by the Respondent. The Complainant obtained a postgraduate diploma in Building Conservation and various other heritage and conservations, environment development qualifications.

The Complainant initially, and for a considerable period, had an inability or at least great difficulty – through no fault of her own, in accepting or coming to terms with her illness. She has been diagnosed with symptoms consistent with a delusional disorder, manifesting mainly with respect to her work colleagues. As stated above, she had poor insight into her condition initially but did begin attending a psychiatrist at the urging of her GP in 2015. The Complainant also engaged with the health care team. The Complainant’s GP states in his latest report dated 16 October, 2018 that he liaised with the medical doctor for the Respondent and that, whilst he felt that the Complainant was moving towards recovery, she felt unsupported by her colleagues at work.

It is the Complainant’s contention that the Respondent was at all times fully aware of the nature of her illness but that no regard or proper regard, was had for or to the same. The Complainant further contends that she was on the road to recovery, she was attending her GP as well as a psychiatrist and no reasonable or proper support was provided to her. She further contends that her medical recovery - which is ongoing – would have been greatly enhanced had the said support and understanding been forthcoming.

The Complainant submits that one must look in every case at what is reasonable and proportionate. If this was a corner sweetshop with just three staff what would be expected or required as reasonable from that employer would obviously be very different to what ought to be required and expected from a local authority with several hundred employees and far greater resources. It is therefore submitted that her dismissal was unfair, unreasonable and premature.

The Complainant submits that her dismissal was also procedurally unfair and that she was not afforded any opportunity to influence the Respondent’s decision to retire her on the grounds of ill health. The Complainant also submits that she was not afforded the opportunity to appeal the dismissal.

The Respondent submits that the Complainant contacted senior management in a distressed state on 28 April, 2014 and spoke with the A/Senior Executive Officer and made a number of assertions regarding fellow employees and also in relation to a burglary which she claimed occurred at her place of residence. The Complainant was advised to speak to a doctor and to take a few days off work due to her being obviously distressed and was provided with details of the Respondent’s Employee Assistance Programme and advised to contact them.

The Complainant subsequently went absent from work for a period in excess of three years and did not return to work. The Respondent submits that from the Complainant’s absence on 28 April, 2014, it engaged in regular communication with her by telephone, post and e-mail with a view to returning the Complainant to full working duties as well as resolving any work related issues that the she may have had.

The Respondent submits that over this period it made numerous efforts to facilitate a return to work for the Complainant, however, these were unsuccessful, and the Complainant provided medical advice that not only was she unfit to return to work, she was also unfit to engage with the Respondent and to attend medical assessments.

The Respondent submits that following a significant absence of more than three years it indicated as early as November, 2016 that it was scheduling a medical assessment with its Occupational Health Specialists (Medmark) to “determine whether it will be possible for you to return to work and render regular and efficient service in the future”. In December, 2016, the Complainant indicated that she would not attend this appointment and so one final appointment was scheduled for January, 2017.

The Respondent wrote to the Complainant on 19 December, 2016 confirming an appointment with Medmark had been rescheduled for 23 January, 2017 stating also that “[The Local Authority] is affording you one final opportunity to attend for independent medical assessment and should you fail to attend the appointment on 23 January, the Council may deem this to be frustration of your contract of employment and will have no option but to terminate your employment with effect from that date”. The Respondent also noted that the Complainant had not provided any medical certificates since 1 June, 2016 and this was in contravention to its Sick Leave Scheme and Attendance Management Policy.

A medical assessment by the Respondent’s Occupational Health Physician occurred on 23 January, 2017 after the Complainant had been absent for more than three years. The Respondent wrote to the Complainant on 31 January, 2017 noting “you will note Dr. X [from Medmark] will make contact with you GP and I will await a report following this further conversation”. A copy of the medical report from Medmark was also made available to the Complainant with this letter. The Medical report received stated “On the basis of the consultation, I believe she [the Complainant] remains unfit for work, and with a guarded prognosis regarding a successful return to work in the near future … I note the observation regarding early retirement on the grounds of ill health and I am not clear whether her complaints have yet reached a point where she would be eligible for such a benefit”.

Following a consultation between Medmark and the Complainant’s GP, it was recommended to the Respondent that the Complainant would not return to work in the foreseeable future and retirement on ill health grounds should therefore be considered. Following receipt of this advice the Respondent reviewed and gave full consideration to allowing the Complainant to retire on grounds of ill health. Such requirement confers significant additional benefits and therefore must be assessed on strict criteria, the primary one being medical advice.

Having satisfied itself that these criteria were met, the Respondent wrote to the Complainant on 3 April, 2017 noting again that she had not submitted any certificates since 1 June, 2016. It was noted that “Dr. X [Medmark] has had a telephone consultation with Dr. Y [the Complainant’s GP] and both are of the opinion that you are a suitable candidate for early retirement on the grounds of ill health …. It is proposed that you will retire on ill health grounds on 31 May, 2017”.    

The Respondent submits that the Complainant was afforded every opportunity of being heard before this decision was made and it was only after consultation between the Respondent’s medical practitioner and the Complainant’s GP and following a recommendation that “both are of the opinion that you are a suitable candidate for early retirement on the ground of ill health” that a decision was made whereby she would retire on grounds of ill health.

The Respondent submits that after over three years absent from work the Complainant retired from the local authority on 31 May, 2107 on ill health grounds.

The Respondent relied upon the cases of Bolger -v- Showerings (Ireland) Limited [1990] ELR 184 and Hickey -v- Bloomfield House HotelUD 384/2012in support of its position in relation to this complaint.

The Relevant Law

Section 6 of the Act provides: -

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,

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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”.

In reaching my decision I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The fact of dismissal was not in dispute between the parties in the instant case. The Respondent contends that the Complainant’s dismissal arose as a result of her incapacity to return to work to carry out the duties for which she was employed following a period of more than three years sick absence.

The Act provides that where dismissal is “wholly or mainly” on the grounds of the employee’s incapability to perform the work of the kind they were employed to do it will be deemed not to be an unfair dismissal. In such circumstances the onus of proof lies with the Respondent to show that it was genuinely of the belief that the Complainant was incapable of fulfilling her duties.

It is well established that it is not the function of the Adjudication Officer to establish whether the employee, was in fact, incapable of carrying out the duties for which s/he was employed. If an employee is dismissed for one of those reasons provided for in subsection (4) it is sufficient that the employer honestly believes on reasonable grounds that the employee was incompetent or incapable. The requirements that should be applied in this regard were stated by Lardner J. in the case of Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184 where it was held that:

“In this case it was the ill-health of the plaintiff which the company claimed rendered 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 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 afforded an opportunity of being heard.”

Having considered the oral and written submissions made together with the evidence adduced, I am satisfied that the Complainant’s ill-health was the substantial grounds for the dismissal. In coming to this conclusion, I note that it was not in dispute that the Complainant was absent from work on continuous sick leave for a period in excess of three years prior to the Respondent making the decision to retire her on the grounds of ill health. The Complainant initially went absent on sick leave on 28 April, 2014 after she had contacted the Respondent in a distressed state and made allegations regarding fellow employees and also in relation to a burglary by fellow employees which she contended had occurred at her place of residence.

The Complainant was subsequently certified medically unfit to attend work by her GP due to stress. The Complainant underwent a medical assessment by the Respondent’s doctor on 9 May, 2014 at which stage she was certified unfit for work and it was recommended that she be referred to a psychiatrist. The Complainant declined the offer of referral to a psychiatrist and indicated to the Respondent’s doctor that she would consult with her own GP in relation to her medical condition. The Complainant was subsequently diagnosed with Delusional Disorder. However, I am satisfied that details of this diagnosis were not made known to the Respondent prior to her dismissal and that it was proceeding on the basis that her absence from work was stress related at all material times during her absence.

Having regard to the evidence adduced, I am satisfied that the Complainant’s sick absence was managed proactively by the Respondent during the period of her absence and that it engaged with her on a regular basis to keep informed in relation to her medical condition and to establish if/when she would be in a position to return to work.

Furthermore, I am satisfied that the Respondent made genuine attempts during the initial stages of the Complainant’s absence to try and facilitate her return to work and that proposals were made to reassign her to suitable alternative work within the local authority in order to alleviate concerns she had raised in relation to workplace bullying/harassment which she alleged had occurred prior to the commencement of her sick absence.

It is clear from the evidence adduced that the Respondent attempted to arrange numerous meetings with the Complainant to discuss and facilitate her return to work and sought, on several occasions, to refer her to its Occupational Health Specialists for medical assessment. As matters transpired, the Complainant only made herself available for one such meeting on 6 August, 2014 during the course of which the Respondent’s proposals for her reassignment and return to work were discussed. However, it was not possible for the parties to finalise matters as the Complainant had to leave this meeting early to attend a medical appointment but indicated that she would consider the proposals and revert at a later stage. I am satisfied that all further attempts by the Respondent to facilitate her return to work ultimately proved unsuccessful, as the Complainant provided medical advice that she was unfit to attend medical assessments, to engage with the Respondent and that she unfit to return to work.

I also note that the Complainant sought redeployment to another designated local authority during the period of her absence and she contends that the Respondent refused to accede to this request. However, I cannot accept that the Complainant’s evidence on this issue is an accurate summation of the events that transpired between the parties on this matter. I am satisfied that Respondent fully explained the procedures in relation to transfers to the Complainant and how she could pursue this option if she so wished. I note the Respondent’s evidence that a transfer to another local authority could only be accommodated in circumstances where one local authority had a surplus of staff at a particular grade and the other had a deficit at the same grade. I accept the Respondent’s evidence that the requisite circumstances were not prevalent at the material time in question to facilitate the Complainant’s request for a transfer to the specific local authority which she had designated.

I am also satisfied that the Complainant was afforded her full sick pay entitlements in accordance with the Respondent’s Sick Pay Scheme and that the Respondent also approved her claim for Critical Illness Pay and Temporary Rehabilitation Remuneration during the period of her absence.

I am also satisfied that the Complainant received fair notice that the Respondent was actively considering the possibility of dismissal due to her inability to return to work as a result of her illness. In this regard, I note that it was not in dispute that the Complainant had ceased submitting medical certificates with effect from 1 June, 2016 and that the Respondent wrote to her on 29 November, 2016 to inform her that an appointment had been made for her to attend its Occupational Health specialists (Medmark) on 19 December, 2016 for medical assessment. The Respondent indicated in this letter that “As your absence on sick leave has now exceeded over two and a half years, it is necessary for you to be independently medically assessed in regard to your current state of health and as to whether it will be possible for you to return to work and render regular and efficient service in the future”. The Complainant was also advised in this letter that it would be necessary for her to submit any medical reports from her GP to Medmark which she wished to have taken into consideration prior to this appointment. The Complainant subsequently informed the Respondent by e-mail on 19 December, 2016 that she was unwell and unable to attend the appointment on that date.

The appointment was rescheduled for 23 January, 2017 and the Respondent informed the Complainant that “should you fail to attend the appointment on 23 January, 2017, the Council may deem this to be frustration of your contract of employment and will have no option but to terminate your employment with effect from that date”. I note that the Complainant attended the appointment with Medmark on 23 January, 2017 and the Respondent forwarded a copy of the resultant medical report to the Complainant by letter dated 31 January, 2017. The medical report from Medmark concluded that: “On the basis of the consultation, I believe she [the Complainant] remains unfit for work, and with a guarded prognosis regarding a successful return to work in the near future … I note the observation regarding early retirement on the grounds of ill health and I am not clear whether her complaints have yet reached a point where she would be eligible for such a benefit. I will write to her GP seeking for his opinion and if on receipt of that I will write again. In the meantime, she can be considered unfit for work for the foreseeable future.” I note that Respondent stated in its letter to the Complainant on 31 January, 2017 that “You will note that Dr. X [Medmark] advises that he will make contact with your GP and I will await a report following this further conversation”.

Having regard to the foregoing, I find that it was not unreasonable for the Respondent, in the circumstances, to consider the possibility of having to terminate the Complainant’s employment on the grounds of her incapacity to carry out the duties in respect of which she was employed to perform. I am satisfied that the Complainant was made aware and put on notice that that the question of her dismissal for incapacity was being actively considered by the Respondent. In the circumstances, I am satisfied that the Respondent had acted in an entirely appropriate fashion up to this point in time in terms of the manner in which it had managed the Complainant’s sick absence and that it had fully satisfied the first three requirements in the Bolger v Showerings (Ireland) Ltd case.

However, I find that the Respondent’s actions thereafter were tainted by procedural unfairness on the basis that she was not afforded an opportunity to be heard after it had received the medical information from Medmark and the Complainant’s GP that she was considered a suitable candidate for early retirement.

In the case of Gearon v Dunnes Stores Limited UD367/1988, the EAT held: -

“The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or the Tribunal….As the right is a fundamental one under natural and constitutional justice; it is not open to this Tribunal to forgive its breach”.

In coming to this conclusion, I note that the decision to dismiss the Complainant was communicated to her on 3 April, 2017 when the Respondent wrote to the Complainant and advised her that following consultation between Dr. X [Medmark] and her GP that “both are of the opinion that you are a suitable candidate for early retirement on the grounds of ill health” and that it was proposed to retire her on ill health grounds on 31 May, 2017. Having regard to the evidence adduced, I am satisfied that the Respondent made its decision to retire the Complainant on grounds of ill health purely on the basis of the medical advice received from both medical practitioners. It is clear that the decision to dismiss was presented to the Complainant as a fait accompli and she was not afforded any opportunity to be heard or to influence the Respondent’s consideration in relation to the actual decision to dismiss after the relevant medical advice upon which the decision was based had been made available to the Respondent.

Whilst I accept that it was likely the Respondent may still have made the same decision in any event, I am of the view that adherence to fair procedures and natural justice would, at the very least, have required that the Complainant be afforded an opportunity to attend a meeting with the Respondent to argue her position in advance of the final decision being taken in relation to her dismissal. This would have enabled her to make any submissions she deemed relevant on any aspect of her case in light of the knowledge of the decision she was facing and the fact that she clearly did not concur with the medical advice upon which the decision was based. I am of the view that is what was meant in practical terms by the right to be heard as enunciated above (at point 4) in the Bolger -v- Showerings (Ireland) Ltd case, and which is a fundamental principle of fair procedures.

I have also taken into account that the Complainant was not afforded any opportunity to appeal the Respondent’s decision to dismiss her on the grounds of incapacity, and in the circumstances, I find that this was a further significant procedural flaw in the process which resulted in her dismissal.

Having regard to the foregoing, I find that the Respondent failed in its obligation to adhere to fair procedures and therefore the dismissal was procedurally unfair. Accordingly, I find that the complaint is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation, and in considering this matter, I have taken account of the fact that the stated preferred redress of both parties is compensation.

Section 7(1)(c) of the Act defines compensation as: “… payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks’ remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations …) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.”.

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Unfair Dismissals Act 1977 provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to superannuation”.

Having regard to the above provisions of Section 7 of the Act, I am satisfied that financial loss can consist of a) actual loss i.e. loss of net income between the date of the dismissal and the hearing or decision, b) estimated future loss of income and c) pension losses. Such loss can be explicitly claimed or inferred from the evidence heard. The compensation for total loss under these headings is of course subject to the cap of 104 weeks remuneration.

I have also taken into account, as I am required to do by Section 7(2)(c) of the Acts, the extent to which the Complainant has taken measures to mitigate her loss. There was a dispute between the parties as to whether the Complainant has been in a position to try and mitigate her loss following her dismissal. The Respondent contends that the Complainant has not been available for work due to ill health following her dismissal and therefore, has not been in a position to mitigate her loss. The Complainant disputes this contention and adduced evidence that her illness is now under control and that she has engaged in further education to enhance her future employment prospects and has also applied to a number of other local authorities for employment, albeit unsuccessfully, since her dismissal by the Respondent. I have found the Complainant’s evidence on this point to be more compelling and I accept that she has made reasonable attempts to mitigate her loss following her dismissal.

The Complainant’s rate of pay was €42,628 gross per annum at the time of her dismissal, and therefore, the maximum amount of compensation that she can be awarded under the Act is €85,256. I have taken into account that the Complainant, upon her retirement by the Respondent on grounds of ill health on 31 May, 2017, was paid a lump sum of €28,493 and pension entitlement of €3,956 per annum (with effect from 1 June, 2017), under the terms of the Local Government Superannuation Scheme.

Having regard to the foregoing, I deem that an award of €20,000 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal.

Unfair Dismissals Act 1977 – 2015 – Section 6(4) – Incapacity – Retirement on Ill Health grounds - Dismissal Procedurally Unfair - Complaint Well Founded – Compensation Awarded