FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00019402 CA-00025336-001 The Adjudication Officer decided that the Complainant had been unfairly dismissed and awarded him the sum of €10,000 in compensation. Summary position of the Appellant The termination of the Complainant’s employment was on grounds of capability as he was unfit for work and there was no reasonable prospect of return to work in the foreseeable future and was fair and reasonable in those circumstances. The Complainant began his employment in 2010 and was certified unfit for work on 24thAugust 2017. He indicated that he was suffering from leg and foot pain and that this was due to an accident he suffered over 25 years ago and that his work with the Appellant was aggravating a pre-existing condition. A series of medical assessments were arranged by the Appellant beginning with an assessment scheduled for 4thDecember 2017 which was cancelled. Several further appointments were cancelled as a result of the receipt of medical certificates from the Appellant who had moved abroad. In a letter dated 23rdJanuary 2018 the Complainant was advised that an appointment had been arranged for him in a medical centre on the 8thFebruary. He was advised that the purpose of the appointment was to obtain a detailed assessment of the Complainant’s medical condition, to consider the effect of his medical condition on his ability to carry out his work duties, to consult with him regarding any adjustments or rehabilitation measures which may be required to support and assist him in a return to the workplace and to enable the Appellant to take steps to discharge its duty of care to him. Ultimately this medical assessment was cancelled because the Complainant provided a medical certificate advising that he was unable to travel to Ireland because of his medical condition. A further to appointment was arranged for 3rdApril 2018 and this was also cancelled on foot of the receipt of a further medical certificate stating that the Complainant was not able to travel. Correspondence ensued to the Complainant over succeeding months wherein the Appellant sought information as regards the nature of his illness and details of the expected duration of his absence. The detail required was not supplied by the Complainant and ultimately the Appellant wrote to him on 1stOctober 2018 seeking a medical report and details of the expected duration of his absence. That letter advised the Complainant that the Appellant was considering the termination of his employment on the grounds of his indefinite unavailability for work. A short note was then received from the Complainant’s doctor dated 15thOctober 2018 advising that he would be unavailable for work for a period of ten to fourteen months. The Appellant then wrote to the Complainant in letter dated 13thNovember asking him to provide any future information in relation to his availability to return to work and any additional information which he would consider to be relevant to his case. The letter advised the Complainant that “after” the 23rdNovember the Appellant would be considering his ‘ongoing employment with the Company’. No further communication was engaged in with the Complainant following the letter of 13thNovember and no communication was received from the Complainant thereafter in response to the invitation contained within that letter. On 29thNovember 2018 the Appellant wrote to the Complainant to advise him that, on the basis of the medical advice given by his doctor and the fact that there was no reasonable prospect of a return for a minimum period of 10 to 14 months, a decision had been taken to terminate his employment. The Appellant submitted that the termination of the employment was in line with best practice when the employee no longer has the capacity to carry out the work for which he was employed. Section 4 of the Act provides that a dismissal will not be an unfair dismissal if it results wholly or mainly from the capability, competence or qualification of the employee to perform work of the kind which the employee was employed to do. The Appellant drew the Court’s attention to O’Brien V Dunnes Stores Limited [UDD1714] where it was held that there is an implied terms in any contract of employment that the employee will remain fully fit to perform the duties for which he or she is employed, and the loss of that capability can give rise to a dismissal. The Court’s attention was also drawn by the Appellant toBolger v Showerings (Ireland) Ltd [1990] [IEHC] E.L.R. 184wherein it was held that the Act“obliges an employer to show good cause and by imposing an overall test of reasonableness”. In that case it was stated that “For the employer to show the dismissal was fair, he must show that (1) It was the ill-health which was the reason for his dismissal; (2) That this was substantial reason; (3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and (4) That the employee was afforded an opportunity of being heard.” The Appellant submitted that the sole reason for the dismissal of the Complainant was his ill health and that, in this case, his ill health was a substantial reason for the dismissal in line with the Act. At all times the Complainant’s continued employment was questioned, he received notice on a number of occasions and finally he was given the opportunity to be heard. At no time did the Complainant furnish the Appellant with a return to work date and his dismissal was reasonable in circumstances where he was not capable of carrying out the tasks for which he was employed. Summary position of the Complainant The Complainant submitted that he had become unfit for work in August 2017 and that since that time he had remained in contact with the Appellant and sent sick leave explanations on time. The Appellant’s constant requests to establish his prognosis left him feeling stressed and harassed. He submitted that he always responded to correspondence from the Appellant. The Complainant submitted that his dismissal by the Appellant deepened his stress and fear and his lack of trust in the Appellant company and its employees. The Appellant provided the Court with a range of documentation which demonstrated the quality of his work for the Appellant including testimonials from clients of the Appellant. The documentation also detailed correspondence between the Appellant and the Complainant as regards planned medical assessments in the period between August 2017 and his dismissal in November 2018. He submitted that he should be compensated for his dismissal by the Appellant. The Law Section 6 of the Act in relevant part provides as follows: 6(1) 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. (4) 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 performing work of the kind which he was employed by the employer to do, Section 7 of the Act in relevant part provides: 7. (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances Discussion and Conclusions The Appellant has submitted that the sole reason for the dismissal of the Complainant was his incapacity to perform the work he was employed to do in circumstances where he was absent from work due to ill health from 24thAugust 2017 and where, in October 2018, his medical doctor advised the Appellant that he would continue to be unavailable for work for between a further ten to fourteen months. The provisions of Section 6 of the Act in relation to a dismissal based on capability arising from ill health were considered byLardner J. in Bolger v Showerings (Ireland) Ltd [1990] [IEHC] E.L.R.184 where he stated: “Statute weight the scales in favour of the employee by providing that a dismissal shall be deemed unfair unless an employer can show substantial grounds justifying the dismissal. The onus is therefore upon the employer to show that the dismissal was not unfair. One of the grounds set out in section 6(4) is the capacity of the employee to carry out the work for which he was employed. In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that: (1) It was the ill-health which was the reason for his dismissal; (2) That this was substantial reason; (3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and (4) That the employee was afforded an opportunity of being heard.” It is appropriate to apply the decision of Lardner J to the facts of the within appeal. It is not in contest that the Complainant’s ill-health was the sole reason for his dismissal. The fact that (a) the Complainant had been absent through illness for a period of nineteen months at the date of his dismissal and (b) was certified at that time to continue to be absent for between a further ten and fourteen months and (c) that he was and would be unable to perform the work for which he was employed for that entire period, can reasonably be considered to amount to substantial reason. The Appellant did advise the Complainant by letter dated 13thNovember 2018 that “after” the 23rdNovember the Appellant would be considering his ‘ongoing employment with the Company’. The nature of the notice thus provided to the Complainant amounts, in the view of this Court, to fair notice that the question of his dismissal would be considered after 23rdNovember 2018. The Appellant confirmed to the Court that no further communication was engaged in with the Complainant following the letter of 13thNovember and that no communication was received from the Complainant thereafter in response to the invitation contained within that letter. On plain reading, the letter of 13thNovember advised the Complainant that the Appellant would “be considering your ongoing employment with the company” after 23rdNovember. No evidence has been proffered or submission made by the Appellant that in the course of the Appellant’s consideration of the dismissal of the Complainant after 23rdNovember he was afforded an opportunity to be heard. It is the view of the Court that a failure to provide such an opportunity to the Complainant after 23rdNovember deprived him of his fundamental right to be heard in his own defence when the matter under consideration was his potential dismissal. This principle is clearly enunciated inBolger v Showerings (Ireland) Ltdas set out above. This principle of audi alteram partem is also reflected inS.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000wherein it is stated that The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include: That employee grievances are fairly examined and processed; That details of any allegations or complaints are put to the employee concerned; That the employee concerned is given the opportunity to respond fully to any such allegations or complaints; That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances. The Code, while setting down applicable principles in grievance and disciplinary procedures is, in the view of the Court, authority for the proposition that an employee whose employment is at risk of termination as a result of his alleged incapability to carry out the work for which he is employed, is entitled to be heard in his own defence. The Court concludes that the Appellant’s decision to dismiss the Complainant was tainted by unfairness as a result of a failure to provide an opportunity to him to defend himself during the process of consideration of his dismissal which was entered into after 23rdNovember 2018. The Court concludes that this unfairness was of such significance as to mean that the decision to dismiss the Complainant, which was communicated to him by letter dated 29thNovember 2018, was rendered unfair within the meaning of the Act. In all the circumstances of the within matter, the Court concludes that compensation is the appropriate form of redress. Redress The act at Section 7 requires the Court to assess the financial loss attributable to his dismissal suffered by the Complainant and, where no such loss has occurred, confines the jurisdiction of the Court to a maximum award of four weeks remuneration. The Complainant in the within appeal confirmed to the Court at its hearing that, having been dismissed in November 2018, he remained unfit for work. He also confirmed to the Court that, as a result of his ill health, he had made no attempt to secure employment since his dismissal or otherwise to mitigate any loss he might have suffered. Against the background of that submission from the Complainant, the Court concludes that any loss suffered by the Complainant since his dismissal was attributable to his incapacity to engage in employment as a result of ill health and, consequently, not attributable to his dismissal. Having reached that conclusion, the maximum award payable to the Complainant arising from his unfair dismissal is, in accordance with the Act at section 7, a sum equivalent to four weeks remuneration. It is the view of the Court that the redress which is just and equitable having regard to all of the circumstances of the within appeal is the maximum permitted by the Act. It is common case that the remuneration of the Complainant at the time of his dismissal was €450 per week. The Court therefore concludes that the amount of compensation which should be paid to the Complainant is €1,800, being a sum equivalent to four weeks remuneration at the material time. Decision For the reasons set out above, the Court decides that the Complainant was unfairly dismissed within the meaning of the Act and that the Appellant should pay to him the sum of €1,800 in compensation. The decision of the Adjudication Officer is varied. The Court so decides.
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