ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023301

Parties:

Complaint(s):

Date of Adjudication Hearing: 12/11/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

CA-00029837-001

Unfair Dismissals Act, 1977

Background:

The Claimant was employed by the respondent from January 1994 to May 31st, 2019 and he was paid the minimum wage for the period of his employment The Claimants employment was terminated by the respondent, citing medical incapability as reason for the termination. The Claimant had at this stage been absent on certified sick leave since January 2018 with “severe right elbow tendinopathy”.

While on certified sick leave the Claimant complied with all requests to attend medical assessment appointments (7 in total), attend meetings with the respondent and continued to hand in his medical certificates. The Claimant underwent a surgical procedure on his elbow in August of 2018, while some improvement was noted in his condition the claimant was still suffering a significant amount of discomfort and pain. It was recommended that the Claimant undertake a course of physiotherapy. Due to an issue with Social Welfare the Claimant was unable to afford the physiotherapy and as such suffered a setback in his recovery. The Claimant eventually secured funds which enabled him to obtain the physiotherapy required which did improve the range of motion in his right arm.

The Claimant received a letter dated April 8th, 2019 from the respondent which stated, “you will appreciate that your ongoing absence is a matter of concern to the Company. The Respondents priority is to facilitate your return to work, but you will appreciate that cannot continue to hold your position open indefinitely. Following a review with you, Medical Advisor (wrote a report on 29 March 2019”. The letter went on to say that the respondent wished to discuss the contents of this report and were seeking to arrange a meeting with the Claimant on April 15th, 2019 at the plant.

Subsequent to the above meeting the Claimant received a letter dated April 18th, 2019 titled Re: proposed termination of employment on grounds of medical capacity. The contents of the letter outlined the factors the respondent was taking into consideration in making its decision. The letter also afforded the claimant the opportunity to make submissions on reasons as to why his employment should not be terminated. The claimant was also informed that other alternative roles were explored and unfortunately none were currently available in the Company.

The Claimant responded to the letter by email requesting copies of the reports or any other documents referred to in the above dated letter. No response was received.

A letter dated May 15th, 2019 was sent to the respondent by the Claimants GP, which suggested the possibility of a phased return to work over a period to properly asses the likelihood of his return to his job. This would accurately define his limits and may reveal other possible areas of employment within your company.

The claimant received a letter dated May 21st, 2019 seeking to arrange a meeting on May 24th, 2019. This meeting was arranged to discuss the letter of April 18th, 2019, Proposed termination of employment on grounds of medical capacity.

It was explained to the claimant that a lot of time had been put into trying to get the claimant back to work. The claimants GP report was discussed, and it was stated by the respondent that it did not contain a date of when they could expect the claimant back to work. The recommendation by the claimants GP of a phased return to work was discussed, however it did not provide a date of when this could be. It was also explained to the claimant that both his GP and the Respondent Doctor suggested that the company could consider completely alternative work. The claimant was informed that this option was explored and unfortunately no alternative work was currently available in the company. It was explained to the claimant that at this juncture a business decision had to be made and unfortunately, they have no other option but to release him from his role. It was explained to the claimant that the decision to release him from his role was based on the information in front of them today. It was stated to the claimant that he was an excellent contributor to the company and 25 years worth was phenomenal. It was explained to the claimant that his employment would terminate as of May 31st, 2019. The claimant was not informed of his right of appeal at this meeting.

A letter dated May 28th, 2019 confirming the termination of his contract of employment with an effective date of May 31st, 2019 and outlining monies owed was sent to the claimant.

Respondent’s position:  

1. In accordance with s6(4)(a) the Unfair Dismissals Act 1977-2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability of the employee:

“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 the performing work of the kind which he was employed by the employer to do[...]”

During his long-term absence, the Claimant was invited by the Respondent to attend the company doctor on no less than seven separate occasions for medical assessment on his fitness to work. On all occasions, the company doctor was of the opinion that the Claimant would not achieve a return to work capability at any time in the foreseeable future.

On foot of the medical evidence, the company invited the Claimant to a welfare review meeting, and a subsequent capability investigation meeting. The Claimant was informed that the outcome of the meeting may result in the termination of his employment on the grounds of capability. Given the circumstances, and based on the medical information, the company made the decision to dismiss the Claimant with notice.

2. It is a long-established principle of jurisprudence that persistent absence from work, whether certified or not, may render an employee incapable of doing his/her job and as such justifies dismissal. One of the earliest cases to address this was the case of Reardon v St. Vincent’s Hospital, UD74/79, and the principle has stood since.

Moreover, in Behan v An Post, UD 320/2006, for example, this position was reaffirmed.

It is the Respondent’s position that the same principles apply in this instant case. The Claimant’s prolonged absence, considered in addition to the advice of the company doctor that the Claimant would likely not achieve a return to work capability at any time in the future, as well as his own GP stating he would never be able to perform his role again, rendered him incapable of conducting the job in the mind of any fair and reasonable employer. Accordingly, the Claimants dismissal was fair in light of the principles as established through the case law of the tribunal.

3. The case of Bolger v Showerings (Ireland) Limited, ELR 184, outlines four key requirements needed for a dismissal on the grounds of incapability to be fair:

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

(ii)           This must be a substantial reason;

(iii)          The employee must have received fair notice that the question of dismissal for reason of incapacity was being considered

(iv)         The employee must be given the opportunity of being heard.

It is clear for the facts of the case that the Respondent in this case can show all of the above:

(i)            It was clearly the case that the termination of employment was on the grounds of incapability based on current medical advices.

(ii)           There was no other reason for the dismissal

(iii)          The Claimant was informed throughout the welfare meeting process, and by letter following an investigatory process, that his employment may have to be terminated on the grounds of incapability

(iv)         The Claimant was given every opportunity to provide representations on his behalf and throughout the process. Indeed, the letter of April 18th, 2019 urged the complainant to provide all submissions for consideration of his medical capability and employment. It clearly advised him there was a risk to his role, and that any decision, if adverse to him, could be appealed.

It should be noted that the claimant chose not to exercise his right to appeal.

4. The basis on which the employment relationship exists is based on mutuality of obligation, i.e. the employer provides employment for a consideration of wages; the employer undertakes to provide that work in return for consideration. It is an inherent factor in any working relationship that the employee attends work thus fulfilling their part of the contract. By not attending work on a regular basis, an employee is not fulfilling their part of the contract. Absences from work cannot continue on an indefinite basis. If an employee is unable to fulfil their contract of employment due to illness, then the employer may be left with no option than to terminate employment, based on professional advice.
5. It is necessary to examine whether, at the point of the decision being made, the employee was capable of carrying out his role into the future. Based on the medical advice in this case, this unfortunately was not the case-the complainant agreed with this assertion.

The role of the company is not to examine the cause of the absence. Neither the company nor the claimant is medically qualified to make such a decision. The decision of the company to dismiss the Claimant was difficult; however, based on the Claimant’s illness, the doctor was unable to provide a return to work date and was of the opinion that capability for work would not be achieved in the foreseeable future. Taking all the factors into account the Respondent was left with no alternative but to terminate the Claimant’s employment on the grounds of incapability.

6. Procedurally, the respondent conducted a fair process and was open minded in their approach to the Claimant. In relation to the procedures used to implement this dismissal, the Claimant was afforded all benefits of fair procedure, in line with the respondent’s established policy and the universal principles of natural justice. All the evidence in its entirety was considered, including the claimant’s representations, before any decision was made or action taken. The Claimant was afforded the right of appeal, which he chose not to exercise. In light of all of the above, the respondent believes it to be clear that the dismissal of the claimant was procedurally fair in all respects. It is noted that at no stage was any perceived issue with the respondent’s procedures ever raised by the Claimant or his representative.
7. Without prejudice to the above, as the Claimant was unavailable for work, there remains no loss in respect to potential redress of compensation under the Act:

Section 7(c)(i)Unfair Dismissals Acts 1977-2015

8. Conclusion:

In light of the above facts and case law, the company respectfully requests that the Adjudication Officer find that the Respondent’s decision to terminate the Claimant’s employment on capability grounds was justified and that, accordingly, the claim for unfair dismissal should fail.

Claimant’s position:

1. Refusal to furnish documentation upon which a decision to dismiss was based.

In an email dated May 3rd, 2019 the claimant requested a copy of medical records and reports which were been used to justify his dismissal was completely ignored. This is a clear breach of fair procedures. Without these records the claimant was not in a position to make a proper submission.

2. Improvement Recognised by company doctor.

Had the medical reports and records not been withheld, the claimant would have pointed to the recognition of progress in the Respondent’s Doctors reports. In his report dated December 7th, 2018, the Company Doctor states, “movement of his elbow is restricted”

In his report of February 26th, 2019, he states,

“Therefore, his elbow has not improved and his range of movement is similar to the last day”

Yet in his last report before the claimant’s dismissal, that of March 29th, 2019, the Company Doctor recognizes that,

“he now has an excellent range of movement of his elbow”

3. Respondent not genuinely trying to expedite Claimants recovery.

Once the claimant’s sick pay was terminated, the claimant found himself in very poor financial circumstances. After his surgery, he needed physiotherapy but could not afford it. The respondent’s initial medical adviser (Dr.E.G) in her letter to the respondent dated October 17th, 2018, wrote,

“I have advised him that he should access physiotherapy as soon as possible. It might expedite his recovery, and thus his return to work, if the business were to consider providing same. I can arrange referral if you wish”

The respondent did not accept this recommendation from its medical advisor.

Again, the respondent’s medical adviser t the time (Dr E.G.) in her letter to the respondent dated November 8th, 2018, reiterates the claimants need for physiotherapy and his inability to afford it,

“It should be noted that the (claimant) reported to me today that he will not be able to attend physiotherapy due to financial constraints and therefore the time interval to completion of six sessions of physiotherapy may well be beyond six weeks”

The respondent changed their medical adviser (Dr. B) and in his report dated February 26th, 2019, he notifies the respondent that:

“I recommended intensive physiotherapy of which he attended a few sessions. Unfortunately, he then had severe financial issues with the Department of Social Welfare and due to financial circumstances, he was unable to continue to access physiotherapy. Therefore, his elbow has not improved, and his range of movement is similar to the last day”.

This is to be contrasted with the Respondent’s Medical Adviser in his next report dated March 29th, 2019, by which time the claimant had secured the finance for physiotherapy.

“(claimant) has been attending physiotherapy since his last visit to me. He now has an excellent range of movement of his elbow”.

If the respondent’s priority was genuinely to facilitate the Claimants return to work, as it repeatedly claimed, it would have taken the advice of its medical expert and paid the miniscule cost of physiotherapy.            

4. No Urgency to dismiss.

In his email of the 3rd of May 2019, The Claimant states,

“I do not understand why you are in such a rush to make a decision to fire me. For 25 years I gave loyal and conscientious service to the respondent. Losing my job would be a life-changing setback, and I don’t understand why you need to make a decision so quickly.”

The claimant did not get an explanation as to why a decision had to be made when it was. He was not being paid, and there was no business decision for an immediate decision.

The Respondent meeting notes of the 24th May 2019 states,

“(supervisor) stated that a business decision had to be made based on the facts put in front of us today and that we could not hold, (Claimant’s), position open indefinitely. (Supervisor)stated that (Claimant) was an excellent contributor to (Respondent) and his length of service, 25 year’s worth was phenomenal”

Once again, no explanation was given as to why such a momentous decision for the Claimant could not be put back for a period.

5. Standard for allowing the Claimant to keep his job too high.

The Respondent meeting notes of May 24th, 2019 states,

“I said to (Claimant)that this decision is based on the information here in front of us today and until he is 100% fit to return to work, we have no other option but to release him”.

It is respectfully submitted that the standard is too high. The company was under no obligation to dismiss the Claimant just because he was not at that juncture 100% fit for work. This is especially the case since we now know that the company Doctor had acknowledged a degree of progress by the Claimant.

6. The respondent unreasonably disregarded Claimant’s GP’s report.

The most up to date medical evidence that the Respondent had to hand in advance of the Claimant’s dismissal was that of the Claimant’s GP.

In his report dated May 15th, 2019, the GP states,

“By way of an update I have re referred him to Consultant orthopaedic Surgeon in relation to further possible management or re-hab which might enable a return to work.”

He goes on to state,

“I have suggested to (Claimant)that you might consider a phased re-introduction to work over a period of time to properly asses the likelihood of a return to his job”

Clearly, the Claimants own GP felt that the Claimant would return to work after further treatment and that even an immediate phased return was possible. This was the last medical evidence available to the respondent prior to the Claimants dismissal, yet it chose to ignore it.

7. Claimant not considered for other roles.

In his email dated May 3rd, 2019, the Claimant states:

“I would like you to consider me for other positions that may be available. What alternative roles have I been considered for?”

The Claimant received no reply to that question. He believes the decision to dismiss him had been made for some time and that he was not considered for any other roles.

8. No notification of Right of Appeal in Letter of Dismissal.

The letter to the Claimant dated May 28th, 2019 is definitive. It contains no reference to an appeal.

Neither was there reference to an appeal at the hearing at the meeting on the 24th May 2019.

As far as the Claimant was concerned, he was dismissed and that was the end of it. Had he been aware of the right to appeal he would have availed of it.

In this regard, it is neither reasonable nor in accordance with natural justice and fair procedures that the Respondent be permitted to rely on the contents of a letter sent to the Claimant many weeks prior to his dismissal.

If the Claimant had a right of appeal, it should have been sated clearly in the letter dismissing him.

In any event, the Claimant was not able to submit a proper appeal because the Respondent withheld medical records and reports upon which they based their decision to dismiss him.

Findings:

Both parties made written and verbal submissions at the hearing.

Having examined the evidence and submissions I have made the following observations and findings.

When dealing with claims of unfair dismissal, one of the aspects that will be examined closely is the process and procedures used, as these must, at all times subscribe to the principles of natural justice and fairness.

1. It is noted that the Claimant had an otherwise excellent employment record with the Respondent. Which was noted by the supervisor in attendance at the meeting of 24th May 2019, excellent contributor to the respondent and 25 year’s worth was phenomenal.
2. It is noted that the claimant worked for a period of approximately 4 months with his illness prior to going on long term certified sick leave. August 2017 to January 2018. It is quite apparent that the claimant could not have been 100% fit to carry out his duties.
3. In a letter dated October 17th, 2018, the respondent’s medical adviser at the time (Dr.E. G) wrote,” I have advised him that he should access physiotherapy as soon as possible. It might expedite his recovery, and thus his return to work, if the business were to consider providing same. I can arrange for referral”.

In a letter dated November 8th, 2018, (Dr. E. G) medical adviser wrote. “It should be noted that (Claimant) reported to me today that he will not be able to attend for weekly physiotherapy due to financial restraints and therefore the time interval to completion of six sessions of physio may well be beyond six weeks”

The Company responded to the above letters from their medical adviser (Dr. E.G), by issuing a letter to the Claimant dated November 26th, 2018. The respondent wrote, “You recently attended a medical review with our medical adviser (Dr E.G.) of CHI, Cork. She recommended that a course of 6 physiotherapy sessions would be necessary in order to facilitate your return to work. As you are a member of the (respondents) Healthcare plan you are able to claim back 50% from each physiotherapy session you attend.” The letter further stated that, “As you are aware the respondent’s priority is to facilitate your return to work, but you will appreciate that (Respondent) cannot continue to hold your position open indefinitely. It is your responsibility to ensure these 6 sessions are undertaken. We are proposing that you complete these 6 sessions between now and 18th December 2018. On the 19th December @9.00 a.m. (Dr. E.G) of CHI will review your progress and suggest a return to work plan to facilitate your return to work”

I find the company’s response to this was unhelpful and contained a proposal that they were not qualified to make and was without question contrary to medical advice.

If the respondent’s priority was to facilitate the claimants return to work, why was their medical Adviser (Dr.E.G) suggestion not given proper consideration?, there were a number of possibilities the respondent could have considered that would not have incurred any financial loss, and in fact could have expedited the Claimant’s return to work, an employee stated by a supervisor to be an excellent contributor to the respondent,

I find the issue in relation to the claimant’s financial circumstances was once again notified to the respondent by the respondent’s new medical adviser (Dr. B) in a letter dated February 2nd, 2019.

The respondent was aware that the Claimant had financial difficulties and instead placed demands upon him. It was also submitted in evidence that once the Claimant secured finance for physiotherapy a marked improvement was noted in his range of movement in (Dr. B.) report of March 29th, 2019 some 5 to 6 months after the respondent was asked “to consider providing same”, in (Dr.E.G.) report of October 17th, 2018.

I find that as an excellent employee the respondent made no reasonable effort to help the claimant get the necessary finance for him to get his physiotherapy.

4. I find having examined the process and procedures used to dismiss the claimant, that they were grossly unfair and not in line with the respondent’s own procedures and did not subscribe to the principles of natural justice and fairness for the following reasons.

The notice of the Claimants right of appeal contained in the letter of April 18th, 2019 should have been repeated at the meeting of the 24th May 2019 and the letter of dismissal dated May 28th, 2019, it was not, and therefore the claimant was denied the right of appeal.

As correctly pointed out in the respondent’s submission, the case of Bolger v Showerings (Ireland)Limited, ELR 184, outlines four key requirements needed for a dismissal on the grounds of incapability to be fair.

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

(ii)           This must be a substantial reason;

(iii)          The employee must have received fair notice that the question of dismissal for reason of incapacity was being considered

(iv)         The employee must be given the opportunity of being heard;

The claimant requested, by email dated May 3rd, 2019, copies of medical reports and any other documentation referred to in the letter of April 18th, 2019. This request was not complied with. The claimant is entitled to be furnished with all reports and documentation that any decision which could impact his employment status, is being based upon. Any HR person familiar with the principles of natural justice and fairness would have been more than aware of this fact. In denying the claimant these documents and reports, the claimant could not submit proper representation and as such was not aware of the full facts being considered. The Claimant therefore was denied the right to be heard.

5              I find the wording contained within the medical report which took place on February 21st, 2019, and the subsequent actions of the respondent raise concerns about whether the Claimants employment status had already been determined.

Dr’s report states: “I told him we would have one final assessment of his situation in two to three month’s time to see if there is a possibility of him regaining sufficient physical fitness to return to employment at (Respondent)”.

At a subsequent meeting between the respondent and claimant which took place on February 28th, 2019, discussed, among other items on the agenda, according to a letter dated March 6th, 2019, were the following:

(i)            Doctors report of February 21st 2019

(ii)           That a follow up medical would be arranged for March 28th 2019....and that we would be happy to accommodate any suggestions made by (company doctor) for accommodations that would assist in your return to work e.g. Phased return to work.

(iii)          The letter also states, “We also discussed that should there be no prospect of a return to work on the 01 April 2019, it is likely that the medical opinion will be that this is for the foreseeable future. At this point the company may have to consider termination of employment.”

I find it remarkable that the doctor had the foresight to know that there would only be “one final assessment” and that his recommendation that the final assessment take place in “two to three month’s time” was subsequently ignored by the respondent who arranged for that one final assessment 1 to 2 months earlier than recommended by the company doctor.

6              The claimant’s GP had recommended in his report dated May 15th 2019 that: “I have suggested to (Claimant) that you might consider a phased re introduction to work over a period of time to properly assess the likelihood of his return to his job”, this was discarded by the respondent in the meeting of May 24th 2019 as no clear indication was given as to when the respondent could expect the claimant back to work.

I find that given the seriousness of the implications of the outcome to the Claimant, why was clarity not sought about a return to work date from the claimants GP. Secondly, if you have medical evidence from two doctors that could be considered contradictory, it would be prudent to get a third independent medical opinion.

I find at the meeting of May 24th, 2019, the claimant was informed that, “this decision is based on the information here in front of us today and until he is 100% fit to return to work, we have no other option but to release him”, this would appear to have precluded the possibility of a phased re introduction. It had been previously noted that the claimant work for a period of @ 4 months when he could not have been 100% fit for work. It is also not possible that all employees would be 100% fit for work every day they attend work.

The claimant had sought by email dated May 3rd, 2019 information in relation to what alternative roles was he considered for. No reply was received to that question. Although a reply was received to that email by the claimant it failed to address critical requests and questions raised.

I find it does not appear from the evidence presented that the respondent gave proper consideration to all the facts, but instead focused on the negative aspects of the medical reports.

I find the claimant was not afforded the right of appeal and was not afforded the right to be heard, this is somewhat disappointing given the “excellent contribution to the (respondent)” the claimant had given for a period of 25 years at barely above the minimum wage rate.

Decision:  

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act:

I find that the claimant was Unfairly Dismissed, and I award him €8000.

Dated:   15th April 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: