Complainant

Respondent

Parties

Aneta  Schabek

Hilton Foods Ireland Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Cathal O’Currain BL, instructed by Sean T O’Reilly Solicitors

Mr. Hugh O’Flaherty BL, instructed by  Donal M. Gahan, Ritchie & Co 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-00059529-001

20/10/2023

The Complainant commenced employment with the Respondent on 1st January 2023. The Complainant was a permanent, full-time member of staff. On 2nd June 2023, the Complainant was dismissed on the grounds of capability.

On 20th October 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent dismissed her in breach of their own internal procedures. In addition to the same, the Complainant submitted that the procedure utilised to affect her dismissal was fundamentally flawed. In denying these allegations, the Respondent submitted that the Complainant was fairly dismissed on the grounds of capability following an extended period of sick leave. They submitted that this dismissal took into account all relevant evidence and that the procedure adopted respected the Complainant’s natural and contractual rights.

A hearing in relation to this matter was convened for, and finalised on, 12th April 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing. These were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her complaint, while a representative for the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side. As the fact of dismissal is not in dispute between the parties, the Respondent accepted the consequent burden of proof imposed by the Act and presented their case first.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent on 5th August 2010. At all relevant times, the Complainant’s role was described as that of “backup line leader”. On 18th June 2021, the Complainant suffered an accident in the workplace and commenced a period of certified sick leave. Following the same, the Complainant was referred to the Respondent’s company doctor. At this point, a medical report was issued to state that the Complainant would remain on sick leave pending further investigations. On 13th December 2021, the Complainant was informed that she would no longer received sick pay, in accordance with the Respondent’s internal policy.

On 13th December 2021, the Complainant attended a welfare meeting with two members of the Respondent’s management. During this meeting, the Complainant confirmed that she remained in some pain and would not be in a position to return to work at that time. A further welfare meeting was convened for 9th February 2023. During this meeting, the Complainant again confirmed that she would not be in a position to return to work and could not give a date on which she might be expected to return. At this point the Complainant was informed that she would be sent for further review by the company doctor. The Complainant was further advised that pending receipt of this report a consideration would be taken in respect to her employment.

The Complainant duly attended the company doctor on 1st March 2023. By subsequent report, the doctor concluded that the Complainant is unfit to return to her role and stated that it was “difficult to predict if she would return to such a role in the near future.” The report concluded with a recommendation that the Respondent explore alternative, more sedentary, roles. To this end, a further welfare meeting was convened for 13th March 2023. During this meeting, a representative for the Respondent discussed the various options available to the Complainant. During this meeting, the Complainant advised that she had some experience in accounts but felt that she would not be comfortable being assigned to such a role. The Complainant further accepted that no other suitable roles existed in the Respondent organisation at the relevant time.

By correspondence dated 15th March 2023, the Complainant was advised that she was to be dismissed on the grounds of ill-health. In this regard, it was noted that the Complainant had been absent for almost two years, and that there was no prospect of her returning in the short to medium term. The Complainant was further advised that no alternative roles were available in the Respondent organisation, as outlined in the previous meeting with the Respondent. The Complainant appealed this decision in accordance with the Respondent’s internal policy in this regard, however the appeal was duly dismissed and the Complainant dismissal was deemed to stand.

By submission, the Respondent stated that while the dismissal of the Complainant was unfortunate, it was reasonable given the surrounding circumstances. In particular, they submitted that the Complainant had been absent for a period of almost two years following an injury. During this time, the Respondent had received two medical reports from two separate medical practitioners. Neither of these reports indicated any timeline for the Complainant’s return to work. Following numerous meetings in relation to the issue, during which the Complainant was advised that her ongoing employment was under consideration, the Responding formed the view that the Complainant could no longer perform the role for which she was hired. Following an examination of any alternative roles that Complainant could perform, and confirmation that no such roles were available, the Respondent dismissed the Complainant on the ground on capability. In consideration of the forgoing factual matrix, the Respondent submitted that the dismissal of the Complainant was fair for the purposes of the impleaded Act, and that her application should be deemed to be not well founded.

By submission, the Complainant stated that she suffered a workplace related accident on 18th June 2021, and remained on certified sick leave thereafter, until her termination by the Respondent on 15th March 2023.

Regarding the process adopted by the Respondent, the Complainant, via her representative, submitted that an improper procedure was followed in relation to the same. In this regard, the Complainant referred to the Respondent’s internal disciplinary procedure. This procedure provides  that a dismissal will only occur following a full, and through investigation undertaken by a member of management. In this regard, the Complainant submitted that she was not afforded an opportunity to state her case in accordance with this internal policy. The Complainant further opened the Respondent sickness and absenteeism policy. This policy provides that various periods of absence within a calendar year may result in the dismissal of an employee, but only following the imposition of a numerous warning in advance of the same. Given that the Complainant did not receive any such warning, she submitted that her dismissal was in breach of this policy also.

Finally, the Complainant opened the section of the internal procedures marked “long term absence for medical reasons”. They submitted that this section states that following a period of such absence, the Respondent will examine other more suitable roles for the employee or reduced hours. This section goes on to provide that where medical advice indicates a poor long-term outlook, the option of dismissal on the grounds of ill health will be considered. Regarding the occupational health report opened by the Respondent, the Complainant noted that the same stated that it was difficult to predict if the Complainant was return in the near future. The report further recommended that the matter be revisited in two months, and in contemplation of further medical evidence. The Complainant submitted that this report contained no assessment of her long-term outlook, and that the Respondent dismissed her without any consideration of the same. In addition to the foregoing, the Complainant further submitted that no material consideration of an alternative role was considered by the Respondent.

Regarding the letter of dismissal itself, the Complainant noted that the same referred to the disciplinary policy as grounds for a summary dismissal. In this regard, it was noted that the Respondent’s internal policy only permits summary dismissal on the grounds of gross misconduct. In circumstances whereby no allegation of misconduct of any description was raised as part of the proceedings, the Complainant submitted that the dismissal predicated on alleged misconduct that had not been established by way of fair procedures.  The Complainant further alleged that her dismissal actually occurred as a consequence of her issuing civil proceedings against the Respondent.

In summary, the Complainant submitted that her dismissal was both procedurally and substantively unfair. In this regard, they submitted that the Respondent was unambiguously in breach of their own procedures and had no lawful grounds to dismiss the Complainant. In addition to the foregoing, the Complainant submitted that the ostensible reason for her dismissal, incapacity on the grounds of ill-health, was not factually demonstrated by the Respondent and was not supported by the relevant documentary evidence. In this regard, the Complainant submitted that her dismissal was grossly unfair in circumstances whereby she had suffered an accident in the workplace and had provided in excess of ten years loyal service to the Respondent. Having regard to the foregoing, the Complainant submitted that her dismissal was unfair for the purposes of the impleaded Act, and that as a consequence of the same, her application should be deemed to be well-founded.   

In the present case, the Respondent has submitted that the dismissal of the Complainant was fair on the grounds of capacity. In this respect, they submitted that the Complainant had been absent for work for a period almost two years, and that in consideration of the relevant medical reports, there was no practical reality to her returning to the role. In the alternative, the Respondent submitted that the dismissal of the Complainant occurred in direct breach of the Respondent’s own internal procedures, that alternatives to dismissal were not properly explored, that the dismissal of the complaint on the grounds of capability were not supported by relevant evidence and that the dismissal was unfair given the Complainant’s length of service.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“…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.”

Section 6(4)a of the Acts expressly lists “capability” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that the substantial reason for the Complainant’s dismissal was a lack of capability to perform their duties, they may rely on the defence afforded by Section 6(4)a of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

In the leading case High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, Lardiner J. held that,

“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.”

Regarding the instant case, it is apparent that the Complainant suffered an accident in the workplace on 18th June 2021. Thereafter she remained on certified sick leave until her dismissal on 15th March 2023. During this period, the Respondent invited the Complainant to three welfare meetings, dated 13th December 2021, 6th February 2023 & 13th March 2023. During these meetings the Complainant’s state of health was discussed, and on all occasions it is common case that the Complainant confirmed that she could not return to work.

Regarding the third point of the test outlined above it is noted that the invite to meeting of 9th February 2023, the Complainant was informed that,

“Please note the company needs to consider the operational needs of the organisation and consider what decisions need to be made. I therefore look forward to meeting with you to discuss options.”

It is the position of the Respondent that the above statement placed the Complainant on notice that her dismissal on the grounds of capacity was being considered. In the alternative, the Respondent has submitted that the Complainant remained unaware of her potential dismissal until receipt of the correspondence of March 2023. Having considered the evidence of the parties, it is certainly the case that the Complainant was never expressly informed that her position was at risk of termination on the grounds of capability. Taking the Respondent’s submission at its height, it is apparent that the Complainant would have to infer from the statement that the Respondent needed to “consider what decisions need to be made” as notice of her potential dismissal. Nonetheless, it is common case that at this point the Complainant was absent from work for a period 21 months. The Complainant was aware that the Respondent was seeking medical evidence regarding her ongoing ability to fulfil the role and the prospects of returning to work. In such circumstances, I find that the Complainant must have been aware that her dismissal was in contemplation by the Respondent at the relevant time and the third criterion listed above has been satisfied.

Thereafter, it is common case that the Complainant attended two welfare meetings regarding medical reports and, the Respondent submits, any alternative roles available for the Complainant. In this regard the evidence of the witness for the Respondent was that during the second such meeting the parties discussed alternative roles available for the Complainant, with both sides concluding that none were available. The position of the Complainant was that no such roles were discussed, and that she remained unaware of her prospective dismissal. Having reviewed the contemporaneous notes of the meetings as produced by the Respondent, it is apparent that a number of meetings were arranged to discuss the Complainant’s health and the possibility of her returning to work. While the Complainant has formed that view that these meeting were insufficient in light of her potential dismissal, it cannot be said that the Complainant did not have an opportunity to be heard and to present a case regarding her ongoing employment in accordance with the fourth criterion outlined in Bolger.

By submission, the Complainant stated that the Respondent was in breach of their own internal procedures regarding the Complainant’s termination. In particular, they submitted that the relevant internal procedure states that dismissal may only occur in circumstances whereby an employee is unfit for work and has poor long-term prospects regarding their return to work. In this respect, the Complainant submitted that the most recent medical report issued to the parties was silent as to the Complainant’s long term outlook, but stated that the matter should be reviewed in the short term, and in contemplation of further medical evidence. While this may be the case, the fact remains that at the time of the commissioning of the report, the Complainant had been absent from work for period of almost two years. While the report did state that the position should be reviewed in the short term, it also stated that it would be difficult to predict if the Complainant could ever return to the role. At this point, the Complainant had already been on long-term sick leave, and following a consideration of the report, there was no material prospect of the Complainant’s return to her role. Having regard to the foregoing, I find that the Respondent did not act in breach of their internal procedure in dismissing the Complainant on the grounds of incapacity.

Finally, the Complainant submitted that the outcome letter referred to disciplinary procedures as part of a rationale for dismissing in the Complainant. As the Complainant had not committed any wrong-doing, and no procedure had been followed in relation to the same, she submitted that this constituted a further breach of fair procedures. Having reviewed the letter of dismissal, it is apparent that a reference is made to the Respondent’s policy in respect of ongoing absence, as contained within the disciplinary policy. While this is clearly a mistake on the part of the Respondent, I note that the matter was raised and clarified on appeal. In addition to the same, the Respondents submissions and the sworn evidence of the relevant witness, confirmed that the Complainant was not dismissed on foot of any misconduct on her part, but as a consequence of her unfortunate inability to complete the role for which she was hired. It is also noted that this witness directly denied that the dismissal of the Complainant had anything to do with any civil proceedings she was engaged with, but arose solely as a consequence of the Complainant’s lack of capacity.

In consideration of the accumulation of the foregoing points, I find that the Complainant was not unfairly dismissed and her application fails.

I find that the Complainant was not unfairly dismissed and her complaint is not well-founded.

Capacity, Dismissal, Procedure