Complainant

Respondent

Anonymised Parties

A Part Time Manager

A Retail Shop

Representatives

No representative

MP Guinness B.L. instructed by Eversheds Sutherland Solicitors

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-00028077-002

25/04/2019

The complainant was employed by the respondent as a part-time manager of a retail clothes shop from the 13th of October 2005 until the 16th of November 2018 when her employment was terminated. She worked 12 and 1/2 hours on the weekends and was paid €10.544 per year. She is claiming that she was unfairly dismissed.

The complainant said she worked as a store manager on the weekend shifts and there were no complaints about her work. Miss A, a full-time employee and an assistant store manager was assigned to work with her on the Sunday team. The complainant said she was assured things would not change. She said that things changed, including her shift hours being changed. She said that she became unhappy with the changes introduced by Miss A.

On the 1st of May 2017, she had a review meeting with Miss A and she was unhappy with the grading.   Miss A complained about her work and marked her inconsistent in her role in managing people. Miss A also graded her as inconsistent in her attitude as she felt the complainant was not accepting her (Miss A) as part of the Sunday team. The complainant said she was very upset about this review and notified the store manager about it. She said she became unwell and went out on sick leave on the 21st of May 2017. Her doctor certified that she was suffering from stress and anxiety. 

On the 19th of May 2017, she sent a grievance letter to the company setting out her complaint about the review and her complaints about Miss A. She said she did not receive a written reply to the grievance and had to email the company to confirm that they had received it.

The complainant said she was called to a meeting on the 25th of July 2017 which was conducted by the store manager. She informed the store manager that she suffered from Crohn's disease. She said that the manager advised her to take as much time as she needed to get better. 

On the 8th of November 2017 she said she was contacted by the store manager regarding her long-term sick leave and she was called to a review meeting at which the senior HR officer also attended. She said she didn't believe it was a formal meeting as she was not asked to bring a representative and the meeting took place in a coffee shop. At that meeting she said she was warned that her employment could be terminated because of her sick leave. She said she was unable to give them a date for her return to work because she was still suffering from anxiety because of the review. Following this meeting she sent in a further grievance dated 21st of November 2017.

The complainants said she was then called to another meeting with the area manager and a store manager on the 5th of December 2017 at which her grievance was discussed. The area manager undertook to investigate the grievances further. Another meeting was scheduled for the first week in January 2018. The complainant said she couldn't attend this meeting because she was having lung surgery.  She said she had a standard welfare meeting with the store manager on the 13th of April 2018 and another meeting was held with her store manager and the HR manager on the 12th of July 2018. At this meeting they discussed terminating her contract of employment due to ill health. She said she was then asked if she would attend the company's occupational doctor. After this meeting, OH contacted her and she was reviewed by the doctor. 

The complainant said she asked for a severance package from the company and she emailed the company saying that she would be happy to meet with the store manager and the HR manager, but she was not happy that her contract of employment could be terminated due to ill health. On the 17th of October 2018, she received a letter from HR, outlining all the outcomes of the meetings which had taken place to date, and inviting her to a further meeting on the 16th of November 2018, with the store manager and the HR manager. The complainant said she attended this meeting and at that meeting she was dismissed. The complainant said she received a letter dated 20th of November 2018 confirming her dismissal on the grounds of ill health.  The complainant said that you believe she was pushed out of a job by the assistant manager Miss A who gave her bad review.  She said that she was out sick because of the way she was treated.   She said that she was never well enough to go back to work before she was dismissed. She accepted that she was warned that her employment could be terminated due to her absence on ill health.

Respondent’s Submission

The complainant commenced employment with the respondent as a part-time manager on the 13th of October 2005. She was a provided with a contract of employment and a copy of the company's policies including the Attendance at Work Policy and the Grievance Policy.

At section 3 of the attendance at work policy under the heading managing attendance the policy provides “the company will normally hold your contract open for a maximum of 3 months period where supported with medical opinion. In the unfortunate event that you are unable to return to your full role contract hours prior to the end of the three months and there is no reasonable prospect of you doing so shortly after, a meeting will be held with a human resource representative to review the situation regarding your continued employment. This may result in the termination of your contract.”

On the 18th of May 2017, the complainant was called for review meeting with the assistant manager, Miss A, who previously had review meetings with the complainant in June 2016 and November 2016. During the review meeting Miss. A told the complainant that she had been marked inconsistent under 2 headings managing people and attitude. The complainant did not accept this and stood up and walked out of the review meeting and did not wait for it to end. She went on sick leave on the 19th of May 2017 and did not return to work from that date until her dismissal on the grounds of ill health on the on the 16th of November 2018.

The complainant referred a grievance about the review meeting on the 19th of May 2017. A meeting was held on the 25th of July 2017 with the store manager and the HR manager at which the complainant was given an opportunity to outline her grievance in further detail. The responded also carried out a long term sick review meeting on the same date. The complainant outlined that she was suffering from stress and anxiety and that she had also had other medical problems including Crohn's disease which stress affected.  The complainant said she was not fit to return to work at that time. In response to a question about whether the company needed to make adjustments to assist her in returning to work, the complainant stated that she did not want to meet within the assistant manager Miss A.   In order to assist her, the respondent advised the complainant of retail trust number for employees and she was also advised about the sick leave policy and that the termination of employment on the grounds of capability was part of that policy.

The respondent had a meeting with the assistant manager, Miss A, to hear her account of the performance review and the grievance raised by the complainant. On the14th of November 2017, a further long term sick notification and review meeting was held with the complainant. She complained that she was unhappy in her job for a while. She outlined her current treatment and medication and said that she needed to put her health first and indicated that she was trying to forget about work and get herself right. The complainant was unable to indicate when she would be fit to return to work. She further stated that she was not ready to meet Miss A for mediation. The respondent indicated to her that they would need to get herself and Miss A together before she returned work to resolve her grievance. The respondent also had a discussion with the complainant about the long-term illness policy and the possibility of the termination of employment on the grounds of capability. 

On the 15th of November 2017, the HR manager wrote to the complainant outlining the matters discussed at the meeting and arranging to meet again in January 2018 to review the complainant's progress. On the 20th of November 2017, the complainant sent an email to HR complaining about comments made by the HR manager at the meeting of the 14th of November regarding the long-term illness policy and termination of her employment. The HR manager responded telling the complaining that she could access the policies concerning her entitlements on her NEP account and confirming that the termination of her employment on the grounds of ill health was a last option and would only occur if she was unfit to return to work in January 2018.

On the 21st of November 2017, the complainant referred a grievance to the HR department complaining that she had not had safe and healthy working conditions and that she had been bullied and harassed and criticized and the belittled and it was having a detrimental effect on her mental and physical health.

The company convened a grievance meeting with the complainant on the 5th of December 2017. The meeting was conducted by a senior store manager, an area manager and the complainant attended with a colleague. Discussions took place regarding the complaints review. her long term sick absence or previous grievance and the prospect of her returning to work with Miss A. The complainant was assured that her previous grievance had been addressed. The company told her that they would remove the previous review rating and ask the store manager to observe the complainant upon her return to work and conduct a new review. It was explained to the complainant the main objective of the respondent was to support her return to work, and to explain to her how long the company would hold her contract open while she was on long term sick leave without a confirmed return date. The respondent proposed mediation between the complainant and Miss A. It was agreed that this could be arranged when the complainant was ready to return to work. She was also offered a transfer to another store.   The outcomes of the meeting were confirmed to the complainant in a letter dated 14th of December 2017.

The complainant had to have an operation in January and was unable to attend a meeting. A further long term sick leave review meeting was held on the 13th of April 2018 which the complainant attended. The complainant explained to the meeting that she still gets anxiety attacks and the doctor told her it was better for her not to resume work while getting these attacks. The respondent discussed any adjustments that she needed to assist her return to work. They offered to arrange a meeting between the complainant and Miss A to help sort out the problem. However, the complainant said she did not feel there was anything that the respondent could do at that time to support her return to work.

On the 29th of June 2018, the store manager wrote the complainant to set up a meeting for Thursday the 12th of July 2018 for the purposes of discussing the complainants continued sick leave absence. the letter set out the matters which would be discussed at the meeting and requested that the complainant provide to the meeting an update on her medical condition. 

The complainant attended the meeting on the 12th of July 2018 which was conducted by the senior HR officer together with the store manager. HR officer explained to the complainant the role of the occupational health provider and that the respondent would like her to be assessed by them. The complainant was assessed by the OH doctor and a report was provided to the company. 

On the 14th of August 2018 the respondent wrote to the complainant inviting her to a meeting to discuss her medical condition. In that letter the respondent asked the complainant to bring to the meeting any medical/health information updates that she had which would help the respondent understand her condition in more detail. She was also asked for any suggestions she may have in order for the respondent to support her return to work. The respondent also said in the letter they would discuss the following at the meeting: her fitness to return to work, an agreed date to return to work, reduced hours or a phased return to work, giving her further time to recover and the termination of a contract on the grounds of capability due to ill health. The complainant, in a response email, stated that she was still suffering from anxiety due to the stress caused to her prior and during her performance review with Miss A. She said she was not prepared for her contract to be terminated due to ill health. She went on to say that the only way she would consider leaving her job was with a compensation package and asked if they were prepared to offer her a severance package.

On the 19th of October 2018, the respondent wrote to the complainant in relation to her continuing absence from work. The letter outlined the background and noted the various meetings in relation to her absence. She was invited by her store manager to a further meeting on the 16th of November 2018 to discuss her continued non-attendance at work due to ill health. She was asked to bring an updated report from her doctor to the meeting otherwise the company would rely on the occupational health report which she had received. She was also asked to consider any possible supports the company could put in place to assist her return to work. The store manager said in the letter that in the absence of any new details about her medical condition she would have to consider if it was possible to continue to hold the role open for her.

The meeting took place on the 16th of November 2018. Following this meeting the HR manager wrote the complainant on the 20th of November 2018 telling her that her employment was been terminated on the grounds of ill health because of her current health issues there was no prospect of a return to work. She was paid in lieu of notice and for any outstanding holidays.

Respondent’s Legal Submission

I was referred to section 6 the Unfair Dismissals Act:

“(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..”

It was submitted that the Adjudication Officer must determine if the dismissal if resulted wholly or mainly from “the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do”.

I was referred to the case of O'Brien vs Dunnes Stores Ltd UDD1714, 7th of April 2017. The Labour Court determined that it is not the function of the WRC or the Labour Court to establish whether the employee is in fact incompetent or incapable if an employee is dismissed for such reasons, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incompetent or incapable.

 I was also referred to the High Court judgment in the case of Bolger vs Showerings (Ireland) Ltd 1990 ELR 184 where Lardner J explained the law of dismissal on grounds of ill health as follows:

“In this case it was 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: for a dismissal due to incapacity the employer must show that;

(1)       Ill health must be the reason for the dismissal;

(2)       this must be a substantial reason;

(3)         the employee must be notified that dismissal for incapacity is being considered; and

(4)         the employee must be given a chance to be heard.”

It was submitted by the respondent’s legal representative that an employment may be terminated if ill health prevents a person from performing his or her job or attending work on a regular basis. The Labour Court confirmed in the Dunnes Stores case above that “it is an implied term in any contract of employment that an employee will remain fully fit to preform duties for which he/ she is employed and the loss of that capacity can give rise to dismissal”.

The complainant was absent on ill health from the May 2017 until the employment was terminated in November 2018. During that time, she raised a grievance which was dealt with and it was agreed to remove the previous review rating and get the store manager to observe the complainant on her return to work and conduct a new review based on her observations. The complainant was offered mediation and opportunity to work in another store neither of which she accepted. There were 8 meetings with the complainant from July 2017 to November 2018. It was submitted that the complainant was asked each of these meetings to put forward any support she felt would help her in returning to work, but she was unable to put forward anything. She was put on notice that the termination of her employment on the grounds of capability was a possible outcome of these meetings. She was asked to provide any medical evidence she wished but she was unable to give a return to work date. It was submitted that in the circumstances it was reasonable for the respondent to terminate the complainant’s employment for reasons of incapability on the grounds of her ill health. 

The complainant was absent from work on sick leave from May 2017 until November 2018. In a letter to the complainant dated the 20th of November 2018, the respondent informed the complainant that her employment contract was being terminated on the grounds of ill health because there was no prospect of her returning to work. The complainant is claiming that she was unfairly dismissed.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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..”

“(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,”

I note that the respondent had regular review meetings with the complainant during her absence to resolve her grievance and to support her return to work. The respondent made a number of suggestions to assist the complainant and asked her for her input into any accommodations she needed to assist her in returning to work. The complainant did not accept any of them and indicated that she was unable to return to work because of stress and anxiety. I note that the complainant was requested to provide update medical reports about her condition and she was unable to give any indication of a date she would be fit to return to work. She was referred to the OH Doctor and a medical report was provided to both the complainant and the company. The OH doctor said that the complainant was suffering from perceived work stress and could not indicate what date she would be fit to return. I also note that following a meeting with the complainant to discuss her ongoing absence from work, the respondent concluded that there was no prospect of her return to work and decided to terminate her employment.

In the Dunnes Stores case cited above the Labour Court stated: “It is an implied term in any contract of employment that an employee will remain fully fit to perform the duties for which he or she is employed and the loss of that capability can give rise to dismissal.”

In Bolger v Showerings (Ireland) Ltd (1990) ELRR 184 the Lardner J set out the test to determine the fairness or otherwise of a dismissal in such circumstances as follows:

“In this case it was 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: for a dismissal due to incapacity the employer must show that;

(1)       Ill health must be the reason for the dismissal;

(2)       this must be a substantial reason;

(3)         the employee must be notified that dismissal for incapacity is being considered; and

(4)         the employee must be given a chance to be heard”.

I am satisfied that the complainant’s absence on sick leave was the substantial and only reason for the dismissal. I note that each of the meetings that the respondent conducted with the complainant concerning her grievance and sick leave absence review, that she was notified that the termination of her employment was a possibility due to her long term sick absence and the complainant acknowledged in her emails to the respondent. Therefore, she was clearly on notice that the decision to dismiss her for incapacity was being considered. Likewise, I am satisfied that the complainant was given a chance to be heard at all the review meetings and was given an opportunity to say what assistance she required to enable her to return to work when she was fit but she was unable to provide any medical evidence as to her fitness to return to work.

Therefore, I am satisfied that the respondent has met all the elements of the test set out by the High Court in Bolger cited above. I note that the complainant’s sick absence was proactively managed, and the respondents Sick Leave Policy cited by the respondent above was followed.

The next matter I must consider is whether it was reasonable for the respondent to dismiss the complainant in the circumstances. I was referred to the Dunnes Stores case cited above where the Labour Court stated in a case where the complainant was dismissed for reasons of ill health:

“It is not for the Court to establish whether the Complainant was incapable to carry out her duties but rather it is sufficient that the Respondent honestly believed on reasonable grounds that she was.

“This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224(Court of Appel for England and Wales) 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”

In Derryquin Hotels Ltd v Savage [1981] IRLR 91, Lord Denning MR stated the position thus: “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one 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 if other employers may have dismissed him”

In this jurisdiction, in Bunyan v United Dominions Trust [1982] ILRM 404, The EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson [1978] IRLR 225: -

“[T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Having regard to all the circumstances of the case and applying the above jurisprudence and the reasonableness test set out above, to the decision of the employer to dismiss the complainant, I am satisfied that it was not unreasonable for the respondent to hold the view that there was no prospect of her returning to work in the foreseeable future due to her continuing illness. In the circumstances, I am satisfied that that there were substantial grounds justifying the dismissal. I find that the complainant was not unfairly dismissed.

I find that the complainant was not unfairly dismissed.

Unfair Dismissals Act, Section 6(4) capability, Sick absence, no prospect of returning to work, dismissal.