Complainant

Respondent

Anonymised Parties

A General Operative

A Food Processing Company

Representatives

Eamonn Hayes Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00021663-001

07/09/2018

The Complainant claims that he suffered an injury at work in November 2016 which caused him back pain. He was then absent from work from 13 December 2016 until the termination of his employment on 27 July 2018. He never returned to work. He said that the Respondent unfairly dismissed him.

The Respondent said that the Complainant failed to report an injury he claims happened in November 2016, until the 12 December 2016. He subsequently was deemed unfit to work until the termination of his employment on 27 July 2018. The decision was made to terminate his contract of employment due to incapacity.

The following is a summary of the Respondent’s evidence.

The Respondent said that it is a family run business of 300 people where eighty percent of all the work is carried out by general operatives. The work is very physically demanding, much requiring the use of a forklift and due to the nature of the product produced means the work environment is very cold.

The Respondent said that the Complainant was employed as a general operative since 8 September 2014 and he continued to work in that position until he reported a work-related incident in November 2016 which caused him back pain. The injury was not reported until 12 December 2016 and the Complainant was then absent from work from 13 December 2016 until the termination of his employment on 27 July 2018.

The Respondent said the Complainant had been sending in medical certificates from his own doctor and on 7 March 2017, Ms A, from HR wrote to the Complainant requesting him to see the company doctor for assessment. The medical report returned to the Respondent from the company doctor stated that the Complainant “has a predisposition to having this episode of back pain … the incident at work has triggered severe episode … Unfit for work … [he] should start engaging in back exercises and regular treatment… review again in six weeks.” The Respondent said it paid for the Complainant’s travel and expenses for this and all his medical appointments. A meeting was arranged with the Complainant to review the report. The meeting included a discussion regarding a possible meeting with an Orthopaedic Specialist and it was agreed that all would meet again when medical evidence when available.

The Respondent said that it organised a referral to see an Orthopaedic Specialist in April 2017 and discussed this with the Complainant and he was happy to go along with the appointment. The appointment with the Specialist was held in May 2017 and the report in relation to this was received in June 2017. It states that the Complainant “will be unable to return to work as he was previously … [maybe] in a more sedentary fashion… with appropriate treatment with physiotherapy and pain clinic management…”. The Respondent met with the Complainant and he confirmed that the report was an accurate assessment of his position. The Complainant referred to a Neurosurgeon Specialist that he was on a waiting list to see and that he would prefer to see what the Neurosurgeon Specialist has to say before he came back to work because he did not want to make things worse and was clear that he would not lift anything heavy.

The Respondent said the Complainant met with the company doctor on 6 July 2017 for his check-up, where it was the opinion that he “remains unfit to work … outlook is now poor given the length of absence from work ... strongly advise him to try and attend physiotherapy.” A follow-up meeting was arranged with the Complainant to discuss the most recent medical report and discuss return to work. At this meeting it was discussed about the possible return to work on lighter duties. The parties discussed possible roles and it was determined that walking was okay for him but standing for any long period was not comfortable for him. He said he had an issue using a forklift. The Respondent was asked what other options he thinks might be suitable and the ‘wash-room’ was mentioned. The Complainant said he might be able to go to the wash-room as long as there was no pulling or dragging. It was decided that a risk assessment of the wash-room would be done by a qualified practitioner. The Respondent also suggested the Complainant could come back on staggered hours, but the Complainant said he would prefer to come back fulltime if he was able, but he will let the medical specialists make that decision.

The Respondent said that a risk assessment was carried out in the wash-room and the tasks associated with that position. The conclusion was that he could perform some of the duties but he “would need to demonstrate that he is receiving ongoing physiotherapy … approval from his doctor to state he is fit and has a good level of flexibilities and endurance”. The Respondent met with the Complainant to go through the report and it was agreed that his doctor would read the risk assessment report and make a decision. The other Neurosurgeon Specialist was discussed but no appointment was forthcoming, and the Complainant admitted that he was not attending a physiotherapist although he was advised to do so.

The Respondent said that the Complainant’s own doctor suggested that the Complainant could only lift very low weights (5 kg max) and there would need to be restraints on his posture at work. The Respondent said it unfortunately did not have a position for the Complainant with the medical restrictions. The Complainant admitted at the meeting “no, I cannot come back”. A meeting was arranged on 2 October 2017 to discuss the medical option and check on whether he had secured an appointment with the Neurosurgeon Specialist and to ask if he had attended the physiotherapist as was recommended. The Complainant said there was no development on the Neurosurgeon Specialist and he was not attending the physiotherapist due to the costs. A meeting was scheduled into the future.

A meeting was held on 22 January 2018 with the Complainant who said that he met with the Neurosurgeon Specialist and that he did not agree to surgery and was referred to a pain management doctor. The Respondent asked if there was any other information and if there was any change that he should let them know and it would do another risk assessment, including limited hours, reduced duties. An appointment was made for the company doctor on 9 April 2018, before the parties would meet again. Following that appointment, the company doctor said that the prognosis was unchanged, the Complainant was unfit for work and “it is highly unlikely that he will now ever be in a position to provide regular attendance at a job that is as physical as his”. A meeting was arranged with the Complainant to go through the medical report and there was a discussion about a future meeting to discuss the viability of the Complainant’s continued employment. A letter to that effect was sent to the Complainant on 24 April 2018 and the Respondent said that the letter included a paragraph of the possible outcome of that meeting, including the possibility of a termination of the Complainant’s employment due to incapability to fulfil his contract.

The Respondent said that a meeting was arranged with the Complainant on 22 May 2018 with Mr. B operations manager to chair. The Respondent invited a Trade Union representative to attend with the Complainant. The purpose of the meeting was to make a decision on the viability of the Complainant’s employment. A review of the evidence was held, and the Complainant said that he had nothing new to add. The Complainant was advised that a decision would be made having considered all the evidence.

The Respondent said that by letter of 13 July 2018 the Complainant was informed that the Respondent decided to terminate his contract of employment due to incapacity. He was invited to appeal that decision. The Respondent said that the Complainant did not appeal that decision.

The Respondent claims that during that entire period there were a series of medical examinations, medical reports, and review meetings. At all times a communication line was kept open with the Complainant, and at all relevant times he was invited, and indeed encouraged, to be accompanied by his trade union representative to be involved in the interactions with the Respondent. It said that the Complainant was given every opportunity and assistance to allow him to get fit and back to work. The Respondent in evidence exhibited all the minutes of meetings held with the Complainant. It points to the discussions where it sought the Complainant’s input of where he might think he could return to work on light duties. The Respondent said that all general operative positions have a physical element to them, where there is a requirement to lift, to twist and possibly pull and drag. The ‘box-room’ is no exception, notwithstanding the box-room was never mentioned by the Complainant as a possible option for his return to work. It said all that is evident from the minutes of the meetings.

The Respondent said where an employee cannot fulfil his contract, the employer - with due process - is entitled to terminate it. The Respondent said that it fully documented the process and presented that as evidence to the hearing.

The Respondent said it was fully aware of its requirement in such situations and it took reasonable steps to establish the medical condition of the Complainant and its effect on capacity to carry out his work. It considered whether other suitable work was available given the medical condition as reported to them about the Complainant’s situation. The Respondent said that it was upfront and ensured that the Complainant was aware that his job was at risk due to his incapacity. The Respondent said that it gave him a reasonable opportunity to return to work but unfortunately that was not possible.

The following is a summary of the Complainant’s case.

The Complainant claims that he suffered an injury at work in November 2016 which caused him back pain and he went to see his doctor who deemed him unfit for work in December 2016. He said that he was sent to the company doctor and it suggested that he could possibly return to work for light duties.

The Complainant maintains that a risk assessment was carried out in the Respondent’s wash-room in work. He said the assessment was rushed as the assessor was late and he rushed through the process. He was assessing things that the Complainant already knew he would have difficulties with. He did not look at or assess other parts of the factory, where the Complainant claimed he could have worked.

The Complainant said that there was no assessment done in the box-room and it was an “easy number” and he was sure he could have worked in there, but it was never mentioned or assessed as an option. He also said that there was a team leader role available and he was never considered for the position even though he had many years’ experience and it was mainly an office job and the heaviest thing they had to carry was a “clipboard”. The Complainant said that the Respondent did not do enough to facilitate his return to work and he really needed to get back to work as he had a wife and family to provide for.

On cross-examination the Complainant said that the medical report he was referring to which stated that he could have returned to work on ‘lighter duties’, was from a Dr. X, who had prepared the report in relation to a Personal Injuries claim that he was taking against the Respondent, and it never saw the report he was referring to. The Complainant did concede that every position within the Respondent’s would require him to rotate and move, which he was informed that might cause him difficulties, and that there would be a certain amount of lifting, pulling and dragging.

On cross-examination the Complainant said that he was doing the exercises he was told to do but he was not attending a physiotherapist as it was ‘too costly’. The Complainant said he did not appeal the decision to terminate his contract at the time as he was certain that his job was gone, and he would not get it back.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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 burden of proof in such situations rests with the Respondent to establish the substantial grounds justifying the dismissal of the Complainant. In this case the Respondent claims that the conduct which resulted in the Complainant’s dismissal is based on the medical advice that the Complainant is not medically capable of doing the job that he was employed to do. The Complainant agrees that he is not able to return to work to the job he had as a general operative but was hopeful that he could return to a less physically demanding role and he believes that the Respondent should have gotten him back to work in such a position but failed to do so.

Section 6(4)(a) of the Act provides that;

“…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

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

In the case before me for consideration, the issue of the dismissal is centred around the Complainant’s capability to work. It is clear from the evidence that the Complainant was not fit for work in the role he held prior to hurting his back in 2016. At the hearing, it was obvious that the Complainant accepted that. The Complainant articulated the impact that this had on him and his family. He was clear that any return to work in a position not suitable could make things worse and he was depending on medical direction and advice before doing so. I note that he never got the all clear to return to work.

As part of my assessment, I have to consider the essence of the contract between the parties and what the employee is contracted to do. The legislation is clear that where an illness/injury interferes with an employee’s ability to attend work, a dismissal for reasons of incapacity may not be deemed unfair.

I have to determine was the decision to dismiss the Complainant reasonable in the circumstances. I note that the Complainant had been absent due to his back injury for 20 months at the time of dismissal. The medical evidence put forward does not suggest any hope that he will ever return to work in the future. Based on the nature of the work, the cold environment in the processing plant and the likeliness of the pain recurring, the medical opinion available is rather negative. Unfortunately, the Complainant has not provided any contrary medical evidence to counter that opinion. Likewise, the hold off for the Neurosurgeon Specialist’s opinion also bore fruitless for the Complainant’s case.

The issue of the reasonableness of an employer’s response to the absence of an employee who is incapacitated is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which it refers to the function of the tribunal’s adjudicator on assessment of the facts,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

My role is to investigate the decision taken to dismiss and to decide whether substantial grounds contributed to this decision and whether the Respondent acted within the “band of reasonableness” of a reasonable employer. This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224 in the following terms: -

 “It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

I note the circumstances of this case, in particular, that following an injury at work in November 2016, the Complainant was absent arising from the injury he received and was 20 months in total out of work with no real prospect of getting back to work with the role he had with the Respondent due to the demands of the work. Unfortunately, he still remains unfit for this type of work. I note the nature of the work and the medical evidence. I also note the possible other options within the Respondent for a general operative and the constraints on the Complainant’s mobility. I note the options that were discussed and those not discussed. I have with interest heard the evidence around the team leader’s post and how it is filled.

Having considered all the facts, I find that the Respondent’s decision to dismiss the Complainant fell within the band of reasonable responses expected of a reasonable employer in the circumstances which have been outlined.

The next question I have to ask is whether the process leading up to the dismissal was fair.

The High Court case of Bolger v. Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for incapacity. The Complainant’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) the judge stated:

“For the employer to show that the dismissal was fair, he must show that:

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

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

The Complainant was clearly put on notice that the decision is being contemplated and that the decision may have an effect of ending the employment relationship. That this notification was in writing, it was clear and succinct.

The Complainant was given the opportunity to put forward medical evidence or opinion that he may wish to have considered.

The Complainant was examined a number of times and by both his own medical doctor and those of the Respondent. The prognosis from both sides was unfortunately negative throughout.

Having examined all the circumstances of the case, I find that the process followed by the Respondent was a fair process. All meetings are documented, and all was available for scrutiny. All was shared with him throughout. I am satisfied that the Respondent brought the Complainant through the process with extreme care and attention. It was proactive in seeking to explore the Complainant’s options both medically and from an employment perspective. I have found the Respondent to be very respectful of its employee and considerate of its duty of care to him. All meetings are documented, and all was available for scrutiny.

I find that the decision of the Respondent to dismiss the Complainant was reasonable and I also find that the process was fair. I find the complaint is not well founded.

Unfair Dismissals Acts – injury at work – band of reasonableness – fair process