ADJ-00021143

Complainant

Respondent

Anonymised Parties

General Operative / Picker

Fruit Producers

Representatives

Slawomir Zdunek

Conor O'Gorman IBEC, Lynda Gilsenan

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-00027907-002

22/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027907-004

22/04/2019

The Complainant was employed as a General Operative from 13th February 2008 to 6th February 2019. She has claimed that she was unfairly dismissed and did not get minimum notice. She has sought compensation.

In July 2013 the Complainant was diagnosed with a foot condition and her GP advised her to wear comfortable shoes. Between 2013 and 2016 she was absent sporadically in relation her medical complaint and she attributed her complaint to the safety footwear that she was wearing at work. She was reviewed by Occupational Health in 2014 and they advised her to purchase safety footwear that was comfortable and the Respondent would reimburse her. She was reviewed again by Occupational Health in 2015. In February 2016 she advised the Respondent that she had received a date for surgery in March 2016. She was due to return to work in June 2016. Due to her long-term absence she was referred to Occupational Health to determine if she was fit to return to work and if she required any accommodation.   It was recommended that she return to work on a phased basis. She returned to work and requested safety footwear without metal, this was provided by the Respondent. In July 2016 it was reported to HR that she was wearing safety shoes instead of boots that had been issued to her. She was spoken to by the Health & Safety Manager and it was explained to her the need to wear the safety boots. She then wore them. In September 2016 she informed HR that she had a swelling in her leg because the implant in her foot had been rejected and she needed further surgery. She was again referred to Occupational Health to ascertain her fitness to work and if she could wear safety boots. Occupational Health then wrote to her Specialist seeking an update. In September 2016 she submitted a medical certificate citing work related stress. A welfare meeting was held with HR and she explained that the stress was due to not being paid while out sick when she believed that she was fit but had been referred to Occupational Health. Following that meeting HR sought an update from Occupational Health regarding an update from her Specialist. In October 2016 the Respondent received an update confirming that she had persistent pain and was unable to wear her work shoes. She continued to submit medical certificates for work related stress. In March 2017 she was reviewed by Occupational Health who determined that she was unfit for work as a farm operative, unfit for heavy manual work and unfit to walk on uneven surfaces. It was recommended that she could work in the Pack House where the surface was flat. All duties performed in the Pack House require employees to wear safety boots. On 31st March 2017 she was certified fit to return to work by her GP. She was then referred to Occupational Health for a return to work review on 6th April 2017. It was recommended that she could return to work on a graduated basis if she could tolerate wearing the safety shoes. A return to work meeting took place on 27th April 2017 with Health & Safety and HR to agree a return to work plan. At that meeting she alleged that the work-related stress referred to an incident in 2015 but the employees mentioned had all since left the employment. She was advised that the Respondent could not take any action against them. She was advised that when she returned to work that if she experienced any issues they would be addressed in line with company policy. A return to work plan was put in place and it was dependent on Health & Safety sourcing safety boots. On 28th April 2017 her solicitor advised that she was suffering from repetitive strain injury. The Respondent had never been made aware that she was suffering from RSI. On 10th May 2017 she was referred to Occupational Health who in turn referred her to an independent specialist to ascertain if a return to work would likely exasperate her foot conditions. On September 28th 2017, a Specialist reported that it was hoped that following surgery, a rest period and rehabilitation that she could return to work. A meeting took place with HR on 10th October 2017 to discuss the report. She was advised that they had sourced three different types of footwear for her to try. She then advised HR that she didn’t think that she could return to work as she felt discriminated against because of the treatment that she had received, referring to the alleged incidents that had occurred some years ago. She was assured that she would be afforded her right to dignity at work. She then asked for some financial help and the Respondent agreed to pay some sick pay. On 16th November 2017 she submitted a further medical certificate citing work related stress and ‘Post Op’. She was referred to Occupational Health and on 5th February 2018 it was recommended that she was fit to engage with the Respondent about a return to work plan however he found that she had now developed heel pain and expected that it would improve within 4-6 weeks. She also advised that she was awaiting an appointment in relation to a cyst on her spine. A welfare meeting took place on 26th February 2018. She advised that her original foot problem was no longer preventing her from returning to work but that she was now suffering from ‘Plantar Fascitis’ (heel pain). She also referred to her cyst problem and the stress caused by the issues some years ago. She did not know how the Respondent could deal with the alleged stress issue. She was advised at that meeting that the Respondent could not continue to keep her position open indefinitely where there was no foreseeable return to work date. She attended a further welfare meeting in August 2018. It was requested from her that the Occupational Health consult her GP and treating Specialist to get a view on a possible return to work date. She attended Occupational Health in January 2019 and it was established that she had developed a number of other medical symptoms and was not fit to resume work duties as she was struggling to manage her day to day activities. She attended another welfare meeting on 22nd January 2019 to discuss the medical report. She was advised that the Respondent was considering the termination of her contract of employment. Also, they were consulting with Occupational Health on his recommendation concerning her fitness to return to work. They advised that if Occupational Health confirmed that she was unfit for the foreseeable future then it could result in the termination of her employment. On 25th January 2019 Occupational Health confirmed that “it’s fair to say that she is likely to be unfit for the foreseeable future”. HR met with her on 6th February 2019 to discuss the report. She was then advised that her employment was being terminated by reason of incapability due to ill health. This was confirmed in writing on 8th February 2019 and she was given the right of appeal. She did not avail of that right. She was paid her holiday entitlements. The Respondent has relied upon Sec 6(4)(a) of the Unfair Dismissals Act “the capability, competence or qualifications of the employee for performing work …” as grounds to terminate the employment. There is no dispute between the parties on the facts of the case. She was absent from work from September 2016 to February 2019 and she was incapable of performing her work. They cited the Labour Court UDD171412 Dunnes Stores Ltd v Elaine O’Brien “It is not for the Court to establish whether the Claimant was incapable to carry out her duties but rather it is sufficient that the Respondent honestly believed on reasonable grounds that she was”. Throughout her absence the Respondent sought regular advice from Occupational Health. The undisputed medical advice was that the Complainant’s condition had deteriorated during her absence and that she was incapable of carrying out her duties. The Respondent cited Dublin Bus v Claire McKevitt [2018] IEHC 78 in support. They stated that applying the tests set out in that case their position was that it was the incapacity that was the reason for the dismissal, the reason was substantial, the employee received fair notice that the question of her dismissal for incapacity was being considered. The employee was afforded an opportunity of being heard. There was regular and consistent dialogue between HR and the Complainant throughout her absence, culminating in the termination of her employment and being offered the right of appeal. She did not appeal the dismissal and she was obliged to exhaust internal procedures, which she did not. This has been endorsed by the Labour Court in UD/17/16 and UDD1972. This claim is rejected.

I note that the Complainant was absent from work on an intermittent basis between 2013 to 2016 due to a foot complaint. I note that she was out on continuous sick leave from September 2016 to the date of termination of employment. I find that during that time she was deemed incapable of returning to work due to this incapacity.   Ultimately, I find that the Respondent terminated her employment because she was incapable of returning to work. I find that the Respondent relied upon Sec 6(4) of the Unfair Dismissals Act. A contract of employment must have four basic elements: Offer, Acceptance Consideration and Capacity. I find that there was an offer of a job and this was accepted. I find that a consideration (pay) was agreed and implemented and the Complainant had the capacity to do the job for a number of years from 2008 to at least 2013 when there were issues with attendance due to the foot problem. Ultimately, I find that the Complainant was unable to attend work from September 2016 onwards. I find that she was incapable of fulfilling her contract of employment, that is to attend work and perform it to the required standard on a regular basis. I find that the Respondent terminated the contract of employment because of incapacity. I find that Sec 6 (4) of the Unfair Dismissals Act states, Act “ without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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 ..” I find that the Complainant was unable to perform the duties that she was employed to do. I find that she failed to fulfil her contract of employment. I find that the Respondent was justified in terminating the employment. I find that the Respondent was entitled, in these circumstances, to rely upon Sec 6 (4) of this Act. I find that the dismissal was not unfair from a substantive point of view.

Procedural matters: In order to be procedurally sound with a termination of employment the Respondent must act reasonably and be seen to act in such a manner. I find that the Respondent sourced and paid for safety footwear when they were advised of the Complainant’s foot difficulty. I find that following a period of sporadic absences between 2013 to 2016, she went out on sick leave on a continuous basis from September 2016 to the date of termination. I note that the Complainant supplied medical certificates from her GP. I note that the Respondent regularly referred the Complainant to Occupational Health. I note on one occasion the Occupational Health Doctor recommended that she should be placed in the Pack House. I note that the Doctor did not carry out an assessment of the Pack House to assess its suitability to the Complainant’s needs. Therefore, I must conclude that the Doctor acted upon the information provided by the Complainant only. I note that HR were unable to agree to that as there were no positions there that are “sitting positions”. I did not find any compelling evidence that other employees were transferred to the Pack House in a sitting position, so I must discard that. I note that throughout her absences for a foot problem, which necessitated elective surgery, she also raised two other matters of concern to her. She sent in a medical certificate citing work related stress arising from alleged behavioural issues with former colleagues some years previously and financial difficulties. I find that the Respondent had no knowledge of the allegation of behavioural issues with colleagues in the past as these were never reported. I note that she did not raise any grievance at that point in time. I note that the alleged perpetrators had left the company. I note that the Complainant accepted that the Respondent could not do anything at that stage about this alleged incident. I find that the Respondent reviewed sick pay for the Complainant in order to relieve the financial strain. I note that the Complainant alleged that she was suspended from work without reason, no evidence was presented to support that allegation. I find that she was sent home on one day only for not wearing safety footwear. I note that she also sent a medical certificate relating to repetitive strain injury. I note that the Respondent referred her to a Specialist who did not find such an injury. I find that throughout this absence the Respondent referred her to their Occupational Health for regular updates and they adhered to the medical recommendations. I note that throughout this absence the Respondent held regular welfare meetings with her. I note that eventually the Respondent, at one of these welfare meetings, advised her that they could not keep her job open indefinitely. Therefore, I find that they put her on notice that they were considering termination of her employment. I find that the Respondent sought advice from Occupational Health before they made a final decision to terminate her employment, which stated “I think it is fair to say that she is likely to be unfit for the foreseeable future”. I note that this was dated 25th January 2019. I find that eventually they confirmed the termination of her employment on 6th February 2019. I find that this was confirmed in writing dated 8th February 2019, stating “ by reasons of incapability due to ill health”.  I find that they offered her the right of appeal, but she did not avail of it. I find that the Respondent showed great patience in handling this matter, during a very lengthy absence. I find that the Respondent acted reasonably throughout this absence. I find that the dismissal was not unfair from a procedural point of view.

Dismissal due to protracted absence

The Complainant had claimed that she was unfairly dismissed on 6th February 2019 and she did not receive minimum notice

The Respondent stated that the Complainant’s contract of employment was terminated on 6th February 2019 as a result of her absence from work since September 2016. They stated that the final assessment from Occupational Health on 25th January 2019 stated, “I think it is fair to say that she is likely to be unfit for the foreseeable future”. She was told on 6th February that her employment was terminated on that date. It was confirmed in writing on 8th February 2019 that “your employment with the company will cease effective 6th February 2019. She was not given minimum notice because she was unable to work the notice. She has not an entitlement to notice in such circumstances.

I note that Sec 8 states, “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”. I find that Section 8 applies where there has been misconduct on the part of the employee. In this case I do not find that there has been misconduct warranting summary dismissal such as theft etc. Therefore, I find that she was entitled to minimum notice. I note that the Respondent has relied upon the fact that she could not work the notice had it been given. I do not accept this position. The Complainant had an entitlement to notice firstly, how that would have been addressed should then have been dealt with. One possible way of dealing with it is to notify the ending of the contract and setting a forward date when the notice would expire as the termination date. So, I find that the Complainant did not receive notice that she was entitled to.

Minimum notice following dismissal on grounds of incapacity.