Complainant

Respondent

Parties

Philip Brennan

Hegarty Demolition Limited

Representatives

Carlow Citizens Information Service

Denis I Finn 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-00038841-001

21/07/2020

The complainant worked for the respondent between 2016 and 2020. The respondent dismissed the complainant on grounds of capability and health and safety. The complainant asserts that his dismissal was unfair, an assertion the respondent does not accept.

The respondent outlined that the complainant had a heart attack on a building site. The complainant was then aged 68 and the respondent’s decision to terminate his employment clearly came within the ‘capability’ ground of section 6(4)(a) of the Unfair Dismissals Act. The respondent submitted that it had acted reasonably. The complainant was paid for that week and two weeks of sick pay.

The complainant pursued a full appeal with the Managing Director. It was submitted that the complainant had broken a contractual term in not providing sick certificates and had also denied having a heart attack. It was submitted that it was appropriate to terminate the complainant’s employment because of the health and safety issues, especially as the heart attack had occurred on a building site.

Evidence of the director

The director outlined that the respondent is involved in demolition, work which takes place on building sites. The complainant did hand demolition and dug trenches. This was heavy, demanding work. Health and safety is everything on site. In respect of the incident of the 29th October 2019, the director said that he was informed that the complainant had been taken to hospital. The complainant’s brother was a foreman and emailed the following day to say about the heart attack.

The director said that the incident happened in October and there was no contact from the complainant after the first week. The respondent decided that it had to make a call and could not let this go on forever. The director said that a demolition site was no place for someone who could have another heart attack. The complainant’s job involved demanding work with a sledgehammer. They had no issues with the complainant over the four years he worked for the respondent. The director said that if the complainant had been aged 25 or 35, they might have looked differently at this situation. The respondent decided that it was too dangerous a situation and this was not a decision they took lightly. The respondent had left things rest and there was no contact from the complainant to say that he was coming back.

In cross-examination, the director said that the complainant had commenced employment just before his 65th birthday and the incident happened when he was 68. The decision to dismiss was because he had a heart attack and was working in a dangerous place. The director said that of course, the complainant’s age was a factor. It would be different if this was a desk job. The doctor’s note said that the complainant should get his chest pains checked out.

The director said that the respondent had not arranged for the complainant to be medically examined. The respondent decided that because the complainant had had a heart attack and because of his age, it was not safe for him to work. The director said that there was a chance of another heart attack because of the strenuous nature of the work. This incident had also occurred in the morning, when the complainant would not have done a lot of exertion. The director said that the work takes place on building sites so there was no alternative work available.

Evidence of the office manager

The office manager outlined that she had spoken with the complainant’s brother when the complainant was in hospital. She later spoke with the complainant and told him that he would be paid in full for that week, even though he had gone to hospital on a Tuesday. She also informed the complainant that he would be paid two full weeks of sick pay. The complainant had not asked for reinstatement as part of the appeal and had been looking for an ‘offer’. She had sent the complainant the notes of the meeting and he confirmed that they were correct. The respondent received the complainant’s medical documentation after the appeal.

In cross-examination, the office manager could not recall the complainant contacting her on three occasions. She said that she had probably wished the complainant well in the first call and could not recall the two subsequent calls. It was put to the office manager that the complainant’s ‘offer’ had been for him to return to work and to work until age 70; she replied that this was not their interpretation of ‘offer’ which they interpreted as having to do with money. She said that the minutes of the 19th February 2020 discussed whether to take the complainant back. The office manager thought that the complainant was paid for all annual leave at Christmas.

In closing, the respondent submitted that it had acted reasonably. The complainant had suffered a heart attack and was given a full appeal. The complainant was dismissed on foot of the medical advice submitted and not on medical or age grounds but because of the nature of the work, the work environment, his age and his suffering a heart attack recently. It submitted that Bolger v Showerings(Ireland) Ltd [1990] ELR 184 did not apply here as that case related to persistent absenteeism and the situation here was more nuanced. The respondent referred to O’Brien v Dunnes Stores UDD1714 and the requirement for the employee to be fully fit. The respondent submitted that it would have been negligent to allow the employee to return to work.

Following the hearing, the respondent submitted documentation regarding the payment of annual leave and notice pay. Holiday pay of €1,242.50 for 71 hours was paid on the 17th December 2019. Notice pay equivalent to 86 hours and in the amount of €1,505 was paid on the 29th January 2020.

In submissions, the complainant outlined that he regularly took home €650 per week net. He had a heart attack on the 29th October 2019 and was in hospital for two days. He spoke with the office manager at this time and was certified fit to return in February 2020.

The complainant outlined that his dismissal was unfair as he was not afforded the right to an initial investigation, any meaningful right of appeal and that the respondent did not have the medical expertise to dismiss on grounds of capability as it did. The complainant relied on Bolger v Showerings (Ireland) Ltd [1990] ELR 184 and the procedural requirements set out therein.

The complainant outlined that he incurred 14 weeks of full financial loss until May 2020. He had a reduced income from May 2020 to the end of the year when he earned €186 per week. He earned €150 per week in 2021.

The complainant was an in-patient for two days and twice spoke to the office manager at this time, but later spoke with her several times. He was due a test in January and was later deemed fit to return to work. This was sent to the respondent in late February 2020. The complainant outlined that he did not submit medical certificates as he was not entitled to Illness Benefit as he was over 66 and no longer paid PRSI. He was not paid notice pay.

The complainant outlined that he had two stents inserted after the heart attack. He was informed that he had a blockage but that the other arteries were clear. He was cleared to go back to work and was now doing heavier work. He should have been referred to the respondent’s doctor prior to being dismissed. The letter regarding his fitness to work was sent in February 2020.

The complainant now worked 2 or 3 days per week. The complainant said that he had been unfairly treated in the dismissal. He had spoken with the office manager twice before Christmas and once at the end of January. His brother was also in contact with the respondent about his situation.

In cross-examination, the complainant said that he had been in contact with the office manager three or four times. His intention at the appeal was to get his job back and his impression was that the director had made up his mind. He had not sought reinstatement as part of his complaint as the respondent had already stated that it was sacking him. In respect of whether this was a dangerous place to work, the complainant said that health and safety was paramount, and everything was cleaned up and levelled. He said that it was hard to fall off scaffolding if you have a turn. He said that he had not been asked for medical certification prior to starting with the respondent. It was put to the complainant that the nature of the building site and the nature of the incident justified his dismissal on grounds of health and safety; he replied that he had been deemed fit to return to work and was now back at work.

In closing, the complainant submitted that the respondent should have medically assessed him. The respondent had based its decision on this being a massive heart attack, which it was not. This case was about fair procedures and the contract allowed for the employee to be sent to a company doctor. The respondent had not determined the issues in this case and had not carried out a risk assessment.

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that he was unfairly dismissed, while the respondent asserts that the dismissal was reasonable and on grounds of health and safety and capability.

In respect of the date of dismissal, I take this as the 12th March 2020 as this was the date the capability process finished. In respect of the complainant’s normal weekly wage, I note the pay slips which state that the complainant was paid €17.50 per hour (the then SEO rate) and that his hours were 40 hours and three hours travel. This makes the complainant’s normal weekly wage to be €752.50.  

In respect of the fairness of the complainant’s dismissal, I find that the respondent has not discharged the statutory onus to show that the dismissal was not unfair. I reach this finding for the following reasons.

First, I note that the only ever issue between the complainant and the respondent arose when the complainant was taken unwell on the 29th October 2019. He went to hospital and after two days, was released for convalescence. The only medical letter in this case – the letter of the 11th February 2020 – confirms the complainant’s fitness to work.

Second, I note the conflict in evidence over the amount of communication between the complainant and the respondent from October 2019 to February 2020. The complainant outlined that he was in regular contact with the office manager and also in contact via the foreman (his brother). The respondent’s account was that they heard far less from the complainant. Irrespective of whichever account is more correct, I note that while the respondent initially informed the complainant of his dismissal in the letter of the 20th January 2020, this was subject to the appeal process and the appeal hearing of the 19th February 2020. I have taken account of the appeal process and the later appeal decision of the 12th March 2020. While there may or may not have been communication in late 2019 and early 2020, there certainly was a process in February and March 2020 regarding the complainant’s capability.

Third, no criticism can be made of the complainant for not submitting medical certificates. The respondent was, of course, always aware of what happened on the 29th October 2019 and was aware that the complainant had received medical treatment. For the reasons stated, the complainant did not send medical certificates to the respondent. The complainant was not asked for the certificates, nor disciplined for not sending them. He cannot now be criticised for not submitting the certificates, especially as it was accepted that the complainant could not work from late October 2019. Whether the complainant could return to work was subject to a process in February and March 2020. At the meeting of the 19th February 2020, the complainant specifically mentioned that he had been cleared to go back to work. He then sent in the medical letter of the 11th February 2020, which confirms his fitness.

Fourth, the dismissal was unfair because no procedures were followed prior to the initial dismissal communicated on the 20th January 2020, and the confirmation of the dismissal that issued on the 12th March 2020 did not address the key new information, i.e. the complainant was now deemed fit for work. Had the process rested on the letter of the 20th January 2020, the dismissal was unfair because of the lack of a process assessing capability. The process culminating on the 12th March 2020 did not mend this unfairness as there was no medical opinion contradicting the complainant’s medical certification of fitness. The respondent could not simply deem the complainant unfit to work when he had been medically certified as fit to work.

It follows from the above that the complainant’s dismissal was substantively and procedurally unfair. The complainant was fit to return to work and a fair and complete procedure would have found him so or ascertained medical certification that he was not fit.

In respect of financial loss arising from the dismissal, I have already found that the complainant’s normal weekly remuneration was €752.50. I find that the complainant is entitled to the loss of his full weekly loss from the date of dismissal (the 12th March 2020) until the end of that year. This is reduced by the weekly earnings the complainant was able to obtain from the second week of May 2020, when he worked part-time for a local firm and was paid €186 per week. The complainant mitigated his financial loss in this period.

I can certainly appreciate how an experienced and skilled labourer such as the complainant might have only been able to find part-time employment in 2020, but this is less obvious in 2021. The complainant moved to another part-time role in 2021, and it is not clear why his hours did not increase over this year, when Covid-19 lockdowns had less an impact on demolition and construction.

The complainant was unfairly dismissed and incurred significant financial loss as a result of the unfair dismissal. I measure the amount that is just and equitable to be €25,281, made up of full financial loss for the eight weeks from the 12th March 2020 to the end of the first week of May 2020 (8 x €752.50 = €6,020) and his financial loss, less €186 per week earned for the remainder of that year (34 x €566.50 = €19,261).

CA-00038841-001

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €25,281.

Unfair Dismissals Act / capability / redress