Complainant

Respondent

Parties

Jane  Stewart-Bird

Petrogas Group Ltd

Representatives

  Self represented

David  O'Riordan Solicitor

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-00049933-001

27/04/2022

The Complainant contends that she was unfairly dismissed during a period of sick leave.

Written and aural submissions were made summarised as follows:

The Complainant was engaged as a Sales Assistant from 9th April 2019.  She was on maternity leave in September 2020.  She submitted medical certificates from the time she was due to return to work which certified her unfit for work.  The Respondent arranged for the Complainant to be assessed by the Medical Company Medmark and the prognosis was that she would not be fit to return to work for the foreseeable future.  The Respondent argues that as the Complainant was unfit to carry out the role for which she was employed and as there was no prospect of her returning to work for the foreseeable future, there was no alternative to terminating her employment.

The Respondent’s Site Director gave evidence on affirmation.  He stated that the Service Station in which the Complainant was employed was a busy station.  He had advised the Complainant that her role could not be kept open indefinitely.  The Medical Report seemed conclusive that the Complainant was unfit for work and was not going to be fit anytime in the near future.  It was necessary to fill the Complainant’s position with short term workers.  However this could not go on indefinitely. 

The Complainant gave evidence on affirmation.  She stated that she submitted her complaint due to the fact that the termination of her employment was sudden, she received no notice or warning that she would lose her job.  She was not afforded due process to put her position to the Respondent.  She submits that she had administrative skills which could have been put to use by the Respondent.   The Complainant also submitted that she was not undergoing surgery, and that the medical prognosis was that she could make a full recovery with appropriate treatment.

The Respondent dismissed the Complainant for incapacity to fulfil the role for which she was employed.   I note that in correspondence from the Respondent to the Complainant on 10th January 2022 and in the letter of dismissal of 22nd March 2022 the Respondent refers to possible discussions to “help facilitate a smooth return to work and consider any adjustments that may be required to help make the transition as smooth as possible”.   I note the Complainant’s evidence that she had administrative skills which may have been used by the Respondent and that no discussions or notice of the imminent loss of her employment were afforded her.  On that basis I find that the Respondent acted unreasonably by dismissing the Complainant without notice.

I uphold her complaint that she was unfairly dismissed.  In relation to remedy, I note the Complainant was unavailable for work, thus incurring no loss.  As Section 7 (1) (c) (ii) of the Act provides :

If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but no exceeding in amount four weeks remuneration in respect of the employment from which he was dismissed calculated as foresaid) as is just and equitable having regard to all the circumstances.

Unfair dismissal, incapacity, complaint upheld.