Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Grocery Distribution Company

Representatives

Stephen Brittain BL

Conor O’Gorman, 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-00029952-001

30/07/2019

The respondent is a grocery distribution business employing around 5,000 people in Ireland.  The complainant commenced working with the company as a warehouse operative in October 2016.  At the time of his dismissal, he earned just under €700.00 per week. 

Chronology Leading to the Complainant’s Dismissal

On July 29th 2018, the complainant was involved in an accident at work.  He alleged that another employee drove a pallet truck over his foot.  Between August 2018 and January 2019, he attended five appointments with the company’s occupational consultant, who, on January 23rd 2019, reported that he was fit to return to work on January 28th.  For convenience, in the remainder of this document, I will refer to the occupational consultant as “the OC.”  On that date, the complainant attended an absence review meeting.  He told the managers that he didn’t feel well enough to return to work and that he was in pain when he put pressure on his foot and that after walking for five minutes, he had to sit down.  He claimed that he was limping and that he needed to use a crutch and that he couldn’t drive long distances. 

On February 1st 2019, the complainant was advised that he was expected back at work on February 4th.  He attended work with a crutch, although the OC had advised against the use of a crutch.  He was informed that, in view of his decision to continue to use a crutch, his attendance at work would be reviewed.

On February 6th, the complainant was instructed to attend work to commence a rehabilitation programme the next day.  He reported at work again with a crutch.  He said that he was unfit to start a rehabilitation session.

The complainant was invited to a risk assessment meeting on February 20th 2019, but on February 9th, he informed his employer that his doctor advised him not to attend.

An absence review meeting was held on February 28th 2019 and the claimant advised his employer that he was suffering from mental health problems.

On March 22nd 2019, the complainant was observed by a manager in a pub, walking without a crutch.

On March 28th, he attended a risk assessment meeting, with a crutch.  He said that he was unable to carry out the tasks he was asked to demonstrate. 

On April 25th 2019, the complainant attended a disciplinary hearing to discuss his failure to engage and participate in the risk assessment on March 28th, his unauthorised absence from work and the fact that he was observed in a pub on March 22nd, walking without a crutch.  He was accompanied by his SIPTU representative.  At the meeting, the complainant confirmed that he was in the pub on March 22nd.  He said that he had a crutch with him, but that he walked to the toilets without it.  The complainant said that his absence was not unauthorised, because the medical reports of his doctor and the OC were conflicting. He said that he was taking advice from his doctor.  He said that he could not do the tasks he was asked to do at the risk assessment on March 28th and that he felt pressurised to do them.

On May 22nd 2019, the complainant was dismissed for serious misconduct.  The respondent concluded that he had unreasonably refused to engage in a risk assessment so that he could return to work, he was capable of walking without a crutch in a pub on March 22nd and he had been certified by the company’s doctor as fit to return to work and he had refused to return. 

On May 28th 2019, the complainant appealed against the termination of his employment.  He claimed that his absence was due to an accident caused by another employee and that he had followed the company’s absence management procedure while he was out sick.  Following an appeal meeting on June 7th 2019, the decision to terminate the complainant’s employment was upheld.

The Respondent’s Case that the Dismissal of the Complainant was Not Unfair

The respondent’s case is that the dismissal of the complainant was not unfair because, in accordance with Section 6(4)(b) of the Unfair Dismissals Act, it resulted from his own conduct.  Following an investigation, a disciplinary meeting and an appeal, the company concluded that the complainant was absent from work without authorisation, that he had failed to engage in a risk assessment to enable him to resume work and that he was in a pub without a crutch and that, on the same evening, he was able to walk without a crutch.

In his submission, Mr O’Gorman referred to the case of Looney & Company v Looney, UD 843/1984.  Here, the Employment Appeals Tribunal (EAT) stated that it was not the role of the Tribunal, and now, as the adjudicator, it is not my role, to establish the guilt or innocence of the complainant, but to consider what a reasonable employer might do in similar circumstances.

In respect of the importance of the bond of trust in the employment relationship, the case of Audrey Burtchaell V Premier Recruitment International t/a Premier Group [UD1290/2002] was cited by Mr O’Gorman, although he said the circumstances of that case are different to the case under consideration here.  Ms Burtchaell was dismissed for sending abusive and defamatory e mails to members of staff.  Referring to the requirement for trust between an employee and an employer, the chairman of the Employment Appeals Tribunal stated:

“Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent.”

The position of the respondent in this case is that, as they did not believe that the complainant was telling the truth when he said that he needed to use a crutch, their trust in him was “eroded” to an irretrievable extent.  In this circumstance, as the breach of trust arose from the conduct of the employee, it is their position that his dismissal was not unfair.

Concluding Remarks

The complainant was absent from work from July 29th 2018 until he was dismissed on May 22nd 2019, due to an alleged workplace injury.  It is the respondent’s case that all the occupational health reports had a common theme, that he was asserting symptoms of pain that did not conform with the physical examination of his foot.  He used a crutch when he had been advised that using it could hinder his recovery.

The complainant did not return to work when he was considered to be medically fit.  He refused to engage in a risk assessment, the purpose of which was to support his return to work.  A few days before the risk assessment, he was seen in a pub, walking without a crutch.  The respondent’s position is that it was reasonable to conclude that, at best, the complainant was hindering his return to work, or, at worst, deliberately obstructing his return to work.  The respondent considers that either of these circumstances constitute serious misconduct.

It is the respondent’s case that the complainant’s dismissal was carried out in line with their disciplinary procedure, which is consistent with the Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146/2000.  The complainant was at all times aware of the allegations against him, he was given an opportunity to respond to the allegations and the issue was fully investigated before a decision was made.  Throughout the disciplinary process, the complainant was represented by SIPTU, his representations were taken into account and he appealed against the decision to dismiss him.  Concluding his submission, Mr O’Gorman asserted that the dismissal of the complainant was substantively and procedurally fair.

No witnesses were called from the respondent’s side.

Absence from Work Due to an Accident

In his submission on behalf of the complainant, Mr Brittain set out the background to his dismissal.  He said that on July 29th 2018, the complainant was injured when a pallet truck being driven by another employee ran over his foot.  He attended the emergency department of Tallaght Hospital where he was informed that he had suffered a soft tissue injury.  He was advised to rest his foot and to apply an ice pack to the injured part.  He was prescribed pain killers.

Since the accident, the complainant has experienced swelling and chronic pain in his foot.  He has taken multiple medications, has attended physiotherapy and has tried other remedies, but he has had no relief from the pain.  He has also suffered from depression as a result of the injury.  At the hearing, Mr Brittain said that the complainant’s injuries are the subject of separate legal proceedings.

From the commencement of his absence on sick leave, the complainant sent his employer medical certificates from his doctor.

The complainant attended the company’s OC for the first time on August 13th 2018.  The OC said that the complainant would be fit to come back to work in one week.  A week later, the complainant’s doctor concluded that he was not fit to return.

The complainant attended an absence review meeting on September 14th 2018.  He was informed that he had been expected back at work on August 19th, on the basis of the recommendations of the OC.  He was instructed to attend the OC again on September 24th.  On that date, as he was scheduled to have a magnetic resonance imaging (MRI) scan of his foot, the OC said that the complainant should remain out of work pending the results of the MRI.  He had the scan on September 28th 2018.

The complainant attended the OC on November 7th.  The OC advised that the complainant would be fit to return to work in four weeks and he recommended exercises to help his recovery.  The complainant attended an absence review meeting on November 21st, accompanied by his shop steward.  The report of the OC was discussed and he attended another appointment on December 3rd 2018.  At that session, the OC advised the complainant to stop using the crutch because it was of no assistance to his recovery and he advised him that he would be able to return to work in four weeks.

The company stopped paying the complainant sick pay from November 9th 2018.

On December 18th 2018, the complainant was advised that an appointment had been made for him with the OC on January 24th 2019.  On January 11th, he sent the HR manager a letter saying that he had been referred for physiotherapy and that he was waiting for an appointment.  He attended the appointment with the OC on January 24th and he explained to the OC that he had attended 10 sessions of physiotherapy which had had no effect.  He said that he was suffering from symptoms of depression and was taking anti-depressants and pain medication.  He also said that he had been referred to an orthopaedic surgeon for a specialist opinion on his injury.  The OC however, recommended that the complainant was fit to return to work and to commence a rehabilitation programme and he noted that there were no overt signs of depression.

On January 25th 2019, the HR manager wrote to the complainant indicating that a four to six week rehabilitation programme would be implemented on his return to work.  He was required to attend an absence review meeting on January 28th.

On February 4th, as part of his rehabilitation programme, the complainant completed a food safety training module.  As he had attended work with a crutch, he was not permitted on the shop floor and was told to go home.  The HR manager wrote to the complainant by email on February 6th and told him that he was to carry out his normal duties when he attended work the following day, and that he was not to attend with a crutch.  He attended the next day with a crutch and he told the management that he was not fit for work.

On February 28th, the complainant attended an absence review meeting.  He said that he had continuous pain in his foot and that he had an appointment arranged with a foot specialist.  He also said he had mental health problems and that, as a result of his injury, he spent most of his time at home.

On March 25th, the complainant attended a risk assessment at his place of work.  He explained to the management that he didn’t feel mentally or physically well enough to take part in the assessment and that his doctor and orthopaedic specialist had advised him against doing so.  He said that he wasn’t able to wear the safety boots required for the workplace because they caused too much pain.  When the managers in attendance demonstrated certain manual handling tasks for the complainant to emulate, he said that he wasn’t capable of doing so.

A disciplinary meeting took place on April 25th 2019.  The purpose was to discuss the complainant’s failure to participate in the risk assessment, his unauthorised absence from work and the fact that he was observed in a pub on March 22nd, walking without a crutch.  On May 22nd, he was informed that his employment was terminated because of serious misconduct.  He was paid in lieu of notice, up to June 5th 2019.  As I have noted under the heading of the “Summary of the Respondent’s Position,” above, the complainant’s appeal had no effect on the respondent’s decision to dismiss him.

On behalf of the complainant, Mr Brittain said that it is noteworthy that the respondent never made any attempt to identify an alternative role for the complainant, in spite of the suggestion of his doctor that he may be able to carry out a desk-based job.  Mr Brittain referred to the letter from the complainant’s doctor on January 19th 2019, in which he said:

“(The complainant) has been out nearly 7 months now with a right foot injury.  He feels that if he goes back to work he will need a role that is less physically demanding than he had before.  Is it possible to accommodate him in an office maybe (sic).  He is keen to go back but is afraid that any physical work will make his foot worse as he still has some pain.  He is undergoing physio and is doing exercises at home.  We would be grateful if he could be accommodated with this request.”

The Complainant’s Case that his Dismissal was Unfair

In his submission, Mr Brittain referred to Section 6 of the Unfair Dismissals Act and the burden of proof which is on an employer to demonstrate that a dismissal is not unfair.  He went on to say that, if an employee is dismissed on genuine grounds related to conduct, this will be not be considered to be an unfair dismissal.  However, even if it can be established that the dismissal was genuinely on the grounds of conduct, that dismissal “may still be deemed unfair if the conduct of the employer was unreasonable.”

Considering the burden of proof which is on the employer, Mr Brittain referred to the decision of Mr Justice Noonan in Bank of Ireland v Reilly [2015] IEHC 241, and his conclusion that,

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  That is not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer.  The question … is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

Mr Brittain submitted that the issue that must be decided is, whether it was reasonable for the company to conclude that the three instances of misconduct alleged against the complainant were substantial grounds justifying his dismissal.  He argued that each of the three allegations are predicated on the respondent’s assumption that the complainant’s injuries are not genuine, or in any event, not sufficient to prevent him from undertaking physical work.

The Complainant’s Injuries

Addressing the evidence that the complainant was unable to carry out his job at the time of his dismissal, Mr Brittain said that the respondent’s conclusions are based entirely on the opinion of the OC.  He said that the true nature of the complainant’s injuries is set out in a report prepared by a consultant orthopaedic surgeon on March 4th 2019.  This consultant noted that the MRI revealed “a subcutaneous oedema overlying the dorsal aspect of the foot but no damage to the bone, ligaments or tendons.”  The remainder of the report summarises the complainant’s treatment so far, his medication, his use of a crutch and his feelings of depression.  Under the heading, “Right Foot,” the report states:

“This is slightly swollen as compared to the opposite side.  He has some discolouration approximately on the lateral aspect of his right foot.  His range of movements are restricted mainly in the last 10 degrees of plantar flexion and dorsiflexion.  He complains of pains on the outer aspect of the dorsum of the mid foot, as well as the outer aspect of his right foot.

“He was found to be tender on the mid tarsal joints as well as he has tenderness over the anterolateral aspect of his right ankle and the lateral collateral ligament as well.  There is no tenderness in the toes.”

The consultant noted that the complainant had been involved in a “crushing injury” and that the MRI had not provided much information.  He recommended a different type of bone scan and a consultation with a pain specialist.

On May 2nd 2019, the complainant attended a pain specialist who concluded that he may be developing chronic regional pain syndrome.  He recommended that the complainant may consider spinal cord stimulation as a possible alleviation of the pain.

Mr Brittain submitted details of treatment undertaken by the complainant in August 2019; however, as this was after his employment was terminated on May 22nd, I see no merit in re-producing those details here.  In summary, the complainant attended a pain management clinic, was administered a pain block which had no lasting effect and he was then recommended for spinal cord stimulation treatment, which, on the date of the hearing, November 13th 2020, had yet to be arranged.

Mr Brittain argued that the respondent’s case that the complainant’s injuries are not genuine cannot be substantiated.  The complainant’s doctor certified him as unfit for work, a physiotherapist recommended that he use a crutch to help his gait and two pain specialists concluded that he required highly specialised treatment.  He was on multiple medications for depression and he attended counselling in Pieta House and at another counselling service.  It is the complainant’s case that his employer “had overwhelming medical evidence available to it to indicate that the Complainant was unfit for physical work and yet it proceeded to treat his failure to present for work at the depot as serious misconduct.”

Considering the reasons given by the respondent for the complainant’s dismissal, Mr Brittain responded as follows:

1.  Walking in a pub without a crutch on March 22nd 2019

The complainant had his crutch with him but he walked to the toilet to avoid slipping on the wet floor.  He was encouraged by his doctors to get out of the house and there was no strenuous activity involved in watching a football match with his friends.

2.  Failure to engage in a risk assessment

In relation to the respondent’s allegation that the complainant failed to engage in a risk assessment, Mr Brittain said that the complainant could not undertake the manual handling tasks demonstrated to him by a manager on March 25th 2019.  His incapacity for these tasks has been supported by the opinion of his doctor and of the pain specialists that he attended.

3.  Unauthorised absence

The complainant was absent from work in circumstances in which his doctor had certified him as unfit during the entire period he was absent.  The two pain specialists that he attended, who diagnosed him with chronic regional pain syndrome, supported his assertions regarding his foot injury, as did his physiotherapist.  On this basis, Mr Brittain argued that it is impossible for the respondent to assert that the complainant’s absence from work was unauthorised.

Concluding Remarks

Concluding his case for the complainant, Mr Brittain referred to the UK Employment Appeals Tribunal decision in Home Stores Limited v Burchell [1980] ICR 303, where the Tribunal set out the three-pronged standard which an employer must satisfy in order to show that the factual underpinning of a decision to dismiss is sound:

1.  The employer must set out the facts of the employee’s misconduct;

2.  The employer must establish reasonable grounds for believing that the employee has engaged in misconduct;

3.  The employer must carry out as much investigation into the misconduct as is reasonable in the circumstances.

Mr Brittain submitted that,

“…the sheer weight of evidence to support the view that the complainant is incapable of the physical work which is involved in being a depot operative, from a significant number of physicians and other healthcare professionals, makes any belief on the part of (the respondent) that the complainant’s injuries are not genuine, and thus that his absence from work is unauthorised, profoundly unreasonable.”

On the basis that the complainant was availing of the support of numerous medical consultants, the respondent failed to satisfy the third of the Burchall criteria, the need to investigate as much as was reasonable in the circumstances.  Mr Brittain said that it was unreasonable of the respondent to have uncritically endorsed the views of their occupational consultant in the manner in which they did. 

Based on these premises, Mr Brittain submitted that the complainant was unfairly dismissed.

Evidence of the Complainant

In his direct evidence, the complainant outlined the sequence of events that led to his dismissal, from the date of his injury in July 2018, when he said that an employee who was rushing ran over this foot with a pallet truck.  He said that in the early stages, he thought he would be back at work, but, even on the day of the hearing in November 2020, he thinks his foot is getting worse.

Referring to his use of a crutch, the complainant said that this was recommended by a physiotherapist in October 2018.  He said that in December, the OC told him to get rid of the crutch and to do exercises, but that he went over on his ankle.  By the time he attended the fifth and final meeting with the OC in January 2019, he had developed depression.

The complainant described his engagement with the process arranged by his employer to assist him to return to work.  He attended the first part of the rehabilitation programme on February 4th, but he couldn’t do a walkaround of the site because he was using a crutch.  On February 7th, he wasn’t able to do the manual handling training.  On March 25th, he could not follow the direction of the manager at the rehabilitation meeting and push and pull a combi-lift, or lift boxes of product.  He said that he watched the manager doing the tasks and he told him that he could not carry them out safely.

The complainant referred to his engagement with his consultants since early 2019.  He said that next week, at the end of November 2020, he is getting a trial for spinal cord stimulation to help him with the pain in his foot.  He said that he continues to use a crutch because if he has to limp around without one, he gets a pain in his foot the following day.  In response to a question from Mr Brittain, the complainant said that he is still not able to undertake any physical work.

Cross-examining of the Complainant

In cross-examining, Mr O’Gorman referred to the dates on some of the medical reports submitted in evidence, which post-date the complainant’s dismissal.  He referred to the efforts of the OC to contact the complainant’s doctor, who did not respond.  The complainant said that the OC didn’t look at his doctors’ reports.  Mr O’Gorman then referred to the OC’s report of November 7th 2018, in which the OC refers to the results of the MRI which showed no significant injury of bone, ligament or tendon.

Mr O’Gorman referred to the risk assessment that the complainant attended on March 25th.  He said that he told the managers that he could not correctly carry out the tasks he was shown, because he was using a crutch.

Mr O’Gorman asked the complainant if he had applied for any jobs, and he said that he is not looking for work at the moment and that he wants to get fit.

The findings and conclusions set out here have been reached on the basis of the written submissions of the parties provided in advance of the hearing on November 13th 2020, and the presentations of both sides at the hearing itself.  I have also considered the evidence of the complainant.  Following the hearing, Ms Comey submitted further documents, a physiotherapy report dated October 30th 2020 and a report from a specialist on November 13th 2020.  She also submitted a letter from a company in November 2019 notifying the complainant that he had not been successful at an interview.  Finally, Ms Comey submitted copies of the complainant’s payslips from July and August 2018, evidence that his hourly rate of pay increased from €10.20 to €10.67 per hour in July 2018.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“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.”

Both sides at the hearing referred to the burden of proof that rests with an employer to establish the substantial grounds justifying the dismissal of an employee.  In the case of this complainant, the conduct which resulted in his dismissal is:

1.  The respondent’s belief that he was capable of returning to work at the end of January 2019 and that he did not return;

2.  His failure, in February and March 2019, to engage in a programme to prepare him for a return to work; and,

3.  The fact that, on March 22nd 2019, he was in a pub watching a football match and that he walked to the toilet without using a crutch.

Section 6(4)(a) of the Act provides that;

 “…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 performing the work of the kind he was employed by the employer to do.”

It’s clear from this section 6(4)(a) that a dismissal will not be unfair if an employee is not capable of performing the work 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.

In the circumstances of the complainant in this case however, the employer relies on Section 6(4)(b) of the Act which provides that;

“…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 …the conduct of the employee.”

The respondent’s decision arises from the opinion of the respondent’s OC that the complainant was fit to return to work in January 2019 and the sighting of him in a pub on March 22nd, walking without a crutch.  It must also be based on the respondent’s knowledge of the incident that occurred on July 29th 2018 and the diagnosis at Tallaght hospital that he had a soft tissue injury that would heal with the application of an ice pack.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

The lasting effect of an accident can be highly subjective and, for some, recovery may be long drawn-out.  We cannot assume that that the complainant was not in too much pain or that he was not too depressed to come back to work.  The only fact we can rely on is that he claimed that he was unable to come back to work and he provided medical reports to bolster this claim. 

At the hearing, Mr Brittain referred to the case of the Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241and my responsibility here, as the adjudicator, to have regard to the reasonableness of the employer’s conduct in relation to the complainant’s dismissal.  In his decision on this case, considering the issue of the response of a reasonable employer, Mr Justice Noonan referred to the case of Allied Irish Banks v Purcell [2012] 23 ELR 189, where Ms Justice Linnane quoted from the findings in British Leyland UK Ltd v Swift [1981] IRLR 91:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

Taking the circumstances confronting this employer and this employee into account, my role, as the adjudicator is to determine if, based on the evidence before me, the decision of the respondent to dismiss the complainant was the action of a reasonable employer.

Mr Brittain also referred to the UK EAT Home Stores v Burchall case, to support his contention that the dismissal of the complainant was unreasonable.  Taking the three principles referred to in that case to underpin the standard of reasonableness, I find as follows:

1.  At the disciplinary meeting on April 24th 2019, the managers clearly set out the details of the misconduct that they were concerned with: the complainant’s failure to co-operate with a rehabilitation exercise to support his return to work, his ongoing absence and the fact that he was observed on March 22nd 2019 in a pub walking without a crutch.

2.  The grounds for believing that the complainant was not incapacitated was based on the professional opinion of the OC that he was not suffering from a serious injury.

3.  The employer’s investigations included five examinations of the complainant by their OC, a review by him of an MRI and his efforts to contact the complainant’s doctor.  The managers also had medical certs and a report from the complainant’s consultant orthopaedic surgeon dated March 4th 2019.  Finally, between January 28th and March 25th 2019, the complainant attended six meetings under various headings to prepare for his return to work.  At one such meeting, on March 25th, he claimed that he could not wear the safety shoes required to be worn by warehouse employees, effectively ruling him out of the possibility of any job in the warehouse.  At the meeting on June 7th 2019 at which he appealed against his dismissal, he said that he was mentally and physically unable to work, and by this statement, it seems to me that he ruled himself out of any job with the respondent, despite his doctor’s suggestion that he might be able for a job in an office.   

All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage.  When an employee fails to attend work, the employer must give some consideration to the cause and provide adequate time and, in certain instances, some form of support for them to return to work.  Following his injury in July 2019, the respondent kept in close touch with the complainant, they referred him for medical checks and they made reasonable efforts to support his resumption of duties.  Despite the assessment of the OC that he was fit to return to work in January 2019, at the disciplinary meeting on April 25th 2019, the complainant said that he “physically could not do anything” and that he was attending counselling and taking medication to help him to sleep.

In 2017, in its determination in the case of Dunnes Stores Limited and Elaine O’Brien, UDD1714, the Labour Court considered the contractual obligations of an absent employee.  Ms O’Brien was absent due to stress and panic attacks arising from an incident at work and she was unable to say when she would be well enough to return.  The Court determined as follows:    

“Having regard to all the circumstances in the instant case, the Court accepts that the Respondent was of the view that there were substantial grounds justifying the dismissal of the Complainant in circumstances where there was no prospect of her returning to work in the foreseeable future due to her continuing illness.  Therefore, the Court finds that the Complainant was not unfairly dismissed.” 

While this is a sad predicament for any individual, it is my view that, as he was unequivocal that he could not come back to work, the complainant was unable to fulfil the terms of his contract and, in that circumstance, it was not unreasonable for the respondent to dismiss him. 

The respondent did not follow the precedent established in the Dunne Stores case, and they dismissed the complainant for misconduct.  This would indicate, as Mr Brittain asserted, that they did not accept that he was unable to work because of the pain in his foot.  In the same manner as the complainant did not accept the findings of the company’s OC, it was open to the respondent to reach a conclusion that was not based on the medical opinion of the complainant’s doctors.

Conclusion

As I have stated, it is my view that it was not unreasonable for the respondent to dismiss the complainant because he was unable to return to work.  The conclusion that he engaged in misconduct is perhaps not one that would have been reached by every employer. 

That said, the test of reasonableness is not a test of what every employer would do, but a test of what another reasonable employer would do.  The respondent had a reasonable basis for concluding that the complainant was not as incapacitated as he made out:

1.  Although eight months had passed since he suffered from a soft tissue injury, he was unable to return to work and he insisted on using a crutch;

2.  He was observed in a pub walking without a crutch;

3.  He resisted the respondent’s efforts to support him to return to work.

As in the case of Bank of Ireland v Reilly, referred to by Mr Brittain, in the Dunne Stores case above, the Labour Court cited the views of Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR91:

“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 though some other employers may not have dismissed him."

It is my view that the respondent’s decision to dismiss the complainant was within the band of reasonable responses and I find therefore, that his dismissal was not unfair.

I have concluded that the decision to dismiss the complainant for was not unfair and I decide therefore, that his complaint under section 8 of the Unfair Dismissals Act is not well founded.

Dismissal, absence, injury, incapacity