Complainant

Respondent

Parties

Katarzyna  Czwojdzinska

Select Service Partner UK Limited

Representatives

Lydia Dodd of IBEC

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-00038929-001

28/07/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonymised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing, as they did not think there would be a conflict of evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken on oath but I would consider what to do if a serious and direct conflict arose.

The respondent submits the complainant commenced employment with them on 15 November 2007. Following a car accident she went on long term sick leave from 3 December 2018, up until she was dismissed on 5 February 2020. She worked approximately 39 hours per week and was paid €11.61 per hour.

The complainant went on sick leave on 3 December 2018. The HR Advisory team were made aware of her ongoing absence on 28 January 2019, in order to manage the long term absence in accordance with their policies and procedures. The complainant attended a welfare meeting on 4 March 2019 to discuss her ongoing absence and gave her consent for a referral to the Company Occupational Health (OH) Provider. She had an appointment with the OH provider on 9 May 2019. The assessment report stated the complainant “is currently unfit for work as she can only stand for a maximum of one hour…. It is likely she will return in the foreseeable future, but it can take a while depending on when she can start with the physiotherapy sessions and how successful they are….. I recommend a review consultation in 8 weeks.” The complainant attended a welfare meeting on 5 June 2019 when the assessment report was discussed and possible transfer options to an admin role were explored. On 10 June 2019 the respondent confirmed no suitable roles had been identified.

The complainant attended an assessment with OH on 6 August 2019. The assessment report stated the complainant “may be fit for work, however this would have to be for a short period of time everyday as she is experiencing some difficulty standing for longer than 3 hours... It is likely that she will return in the foreseeable future, but it can take a while depending on when she can start physiotherapy sessions and how successful they are….” A review in 8 weeks was recommended. The complainant attended a sickness absence review with her General Manager on 18 September 2019. The assessment was discussed. The complainant confirmed she was not in a position to return to work in any capacity.

The complainant attended a further OH assessment on 7 October 2019. The assessment report stated the complainant “is unfit for work as she still has several limitations in her life.” A further review was recommended in 8 weeks. There was a further welfare meeting on 5 November 2019. The complainant advised she had had a first physiotherapy session. She said there been some improvement but was not fit to return to work.

A further OH assessment took place on 9 December 2019. The report said the complainant had only shown slight improvement and they were unable to advise how long the recovery would take. The OH provider closed their case at this point.

On 16 January 2020 a further sickness absence review took place. The complainant again confirmed she was not in a position to return to work but believed she would be likely to return in the future. At the meeting the complainant was advised the respondent may consider termination on the grounds of ill health.

The complainant was invited to a further sickness absence review meeting with the General Manager which took place on 5 February 2020. The invitation to the meeting advised that the respondent was considering termination of her employment on the grounds of long-term incapacity for work, and that she could bring a representative. At the meeting the complainant’s absence record was reviewed in full and the medical assessment reports and medical opinions were discussed. The complainant was asked if she could give an estimate timeframe of when she would be fit to return and she responded “It depends on how it will go. I can’t predict what and how I will feel then.” The General Manager adjourned the meeting to consider the complainant’s responses to all the matters discussed. Then he resumed the meeting and advised the complainant of his decision to terminate her employment due the ill health and of her right to appeal the decision. This was confirmed in a letter dated 11 February 2020.

The respondent submits the dismissal was not unfair and relies on section 6 (4) (a) which states: “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 of the following: the capability, competence or qualifications of the employee for performing work of the kind for which he was employed by the employer to do”

On the final referral to OH the assessment was that the complainant remained unfit for work and could not determine if she would be fit to return in the foreseeable future. She was therefore incapable of conducting the job which was employed to do. The respondent submits the termination of her employment was justified on capability grounds.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

The complainant submits she started working for the respondent in November 2007. She had a car accident in December 2018 and from that date she was on sick leave from work until she was dismissed on 5 February 2020. She says the OH assessments were on the phone and she does not understand how an assessment that she would not be coming back to work in the near future could be made on the basis of a phone call.

She had to wait for over a year for a physiotherapy referral through the HSE. She had 3 sessions which were helping her. Unfortunately, she missed the appointment for the fourth session and there was a delay in resuming the physiotherapy sessions.

At the final meeting on 5 February 2020 she repeated her request for assistance with physiotherapy and was again told this was not provided by the respondent. She was also told there were no suitable positions. She says she was making progress and feels she would have been able to return to work in April 2020. She submits the dismissal was unfair as the respondent should have waited until she had undertaken more physiotherapy and an assessment made then. 

The respondent submits the complainant’s prolonged absence, considered in addition to the OH advice that the complainant would likely not achieve a return-to-work capability at any time in the foreseeable future, rendered her incapable of conducting the job for which she was employed to do. They rely on Section 6(4)(a) of the Unfair Dismissal Act which states;

 “…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”

It is clear from this section 6(4)(a) that a dismissal will not be unfair if an employee is not capable of performing the work s/he was employed to do.  This “incapacity provision” means that, subject to the principles of fairness set out in the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000), it may not be unfair to terminate the employment of an employee who cannot attend work due to illness.

The complainant accepts the stages she went through with the respondent following her accident. However, she says the decision to terminate her employment was made prematurely as she had recently started physiotherapy.

At the meeting on 7 February 2020 the complainant informed the respondent she had had three physiotherapy sessions but gave no indication there was an improvement in her condition. She says she was fit to return to work in April 2020. However, she was able to say that following further physiotherapy sessions and based on her assessment at that time (April 2020). The respondent made a decision in February 2020, at which point the complainant had been absent from work for 14 months without showing an appreciable improvement.

I conclude the respondent made a reasonable decision in February 2020, based on the information available to them at that time, to dismiss the complainant because she was not capable “performing the work of the kind s/he was employed by the employer to do”.

For the reasons stated above I find the complainant was not dismissed unfairly and the complaint is not well founded.

Unfair dismissal - capability