Complainant

Respondent

Anonymised Parties

Complainant

Respondent

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-00027805-001

16/04/2019

The complainant was employed as a general operative in the respondent’s employment from 5.03.2012 until his employment was terminated by way of a letter on November 26th 2018. In 2013,the complainant was involved in a workplace accident which resulted in his absence from work until he was declared fit to return to work by his own GP in June 2018. He had previously settled an injury claim against the respondent related to his workplace accident. The respondent referred the complainant to a medical centre. Following a medical assessment in July, the medical centre gave an assessment which stated that the complainant should avoid lifting any weight above 10kg,bending,twisting,stooping or working at awkward postures. The complainants GP subsequently confirmed his agreement with the assessment. The respondent then asked the complainant if he had any experience of office work and the complainant submitted his CV advising that while he had no experience of such work he was willing to learn. On November 26th the respondent wrote to the complainant informing him that there was no suitable vacancy n the office and stating that as the general operative position held by the complainant must be replaced on a full-time basis, his employment was being terminated with notice.

The rate of pay was €420 per week

The complainant stated that while he accepted there were duties in the employment which he could no longer perform, there were duties in the yard which he had done previously at the end of his daily routine which he could have performed despite the advice that his movements were to be restricted. He could have worked part time and he could have performed cash duties or driven a forklift which he had done previously. He questioned why the employer had taken so long to make the decision to end his employment. A statement was presented from the Department of Social Protection showed that he had no income from that Department from 1 July 2019 when he medically fit to return to work and 19 February 2020 when he obtained alternative employment. The complainant believed that the respondent intended to let him go because he had taken a claim against the company following the workplace accident.

Compensation was sought by way of redress. Loss was claimed for the period from July 1 to November while the respondent made a decision and from the termination of employment to February and an ongoing loss of €30 per week in his replacement employment. The complainant did obtain work the following February but had no income from the date of termination until that date.

The Respondent denied any connection between the claim for a workplace accident and the decision to terminate the complainant’s employment. There was a lot of work in the employment but it all involved heavy work. Following receipt of the medical assessment, he had an obligation to protect the complainant to whom he had a duty of care. Consideration was given to engaging the complainant in office work. The respondent stated that he was present to deal with a claim of unfair dismissal and not any losses incurred between July and November.

The complainant was unfairly dismissed. This conclusion is derived mainly from the text of the letter of 26 July 2018 from the medical centre where the complainant was referred for an assessment by the respondent. That letter, subsequently endorsed by the complainant’s own doctor, refers to the clinical assessment being ‘reassuringly normal’ and, of significance, states ‘ I would consider( the complainant) fit for modified duty with the following suggested restrictions’. Clearly the medical opinion was suggesting that the complainant could be considered for and was fit for modified or light duties-the term used by his own medical adviser. The respondent dismissed any modification of duties for the complainant out of hand, stating that all work in the yard and in the employment generally involved heavy work or working in positions of bending, twisting, stooping or working at awkward postures, which the medical assessment said he ‘should avoid’. The respondent failed to consider part time working for example stating in the letter of termination ‘it is a requirement of our business that your position as a General Operative be replaced with a full-time position’. Thus, the complainant was deprived of any opportunity to work on modified duties as recommended by the medical adviser to the respondent. Instead, the complainant was left without income for a period of over five months from July to the end of November 2018. It is not certain that a suitable role could have been provided to the complainant to meet his needs , but there was an onus on the respondent to give such an option every reasonable consideration, which he manifestly failed to do. Given that the complainant had no experience whatsoever of administrative work and presented to the hearing with a genuine need for an interpreter, no credit can be given to the respondent that there was any serious possibility of the complainant being genuinely considered for an administrative role in the Company.

In relation to the claim for non-payment of wages between July and November, that period falls outside of the scope of a claim under the Unfair Dismissals Act and is not considered in the compensation formula below.

The complainant was unfairly dismissed. In consideration of all of the circumstances, compensation is the appropriate remedy given the fact that the complainant has moved on to new employment and the unlikely prospect of he and the respondent now agreeing on a role with the respondent. In terms of compensation, payment of eleven weeks at €420 pay plus one year of the weekly loss is deemed appropriate taking into account his actual loss from the end of November and his ongoing loss of €30 per week.

The complainant is to receive the sum of €6180 compensation for his unfair dismissal.

Disability related dismissal