UDD2115

1. Appeal of Adjudication Officer Decision No(s) ADJ-00013806 CA-00018256-001

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 6 April 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a virtual setting took place on 11 February 2021. The following is the Determination of the Court:-


DETERMINATION :

This is an appeal by David Mc Cormack (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00013806 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Ashford Castle Hotel (hereafter the Respondent). The Adjudication Officer held that the complaint of unfair dismissal was not well founded.

Background

The Complainant commenced employment with the Respondent on the 23^rd September 2003 as a Doorman. The Complainant became a concierge in 2011. Ownership of the hotel changed to the current owner’s in 2014. It is the Complainant’s submission that due to work issues he went out sick in November 2014.

He had a number of concerns that he raised with the Respondent, but they did not address his concerns . The Complainant’s employment was terminated on the 4^th October 2017 on the grounds of incapacity to perform the work for which he was employed. Dismissal is not in dispute. The Complainant lodged his complaint with the WRC on the 2^nd April 2018.

Respondent’s Submission

The Complainant went out sick on the 5^th November 2014 and remained absent from work on sick leave until his dismissal on the 4^th October 2017. In the intervening period the Complainant was submitting medical certificate from his GP and the Respondent referred him on five occasions for occupational health assessments the last such health assessment being on the 3rd August 2017.

The doctor following that last assessment advised “Given the profound sense of grievance reported and his protracted absence and ongoing symptoms. I do not believe a return to work would be successful at this time and this is not likely to change in the medium term i.e. 3-6 months at least”

During this timeframe the Complainant had raised a number of grievances. In February and May 2015, the Complainant’s solicitor advised that he would like to invoke the grievance procedure, the Complainant was invited to a meeting but did not attend.

On the 16th September 2015 the Complainant requested a formal meeting in respect of what he perceived to be his prolonged mistreatment and harassment. A meeting was arranged for the 7^th October 2015 a further meeting this time by phone at the Complainant’s request was held on the 12^th October 2015. The outcome of the investigation was issued on the 22^nd October 2015.

Following a request from the Complainant and his solicitor the time frame for appealing the decision was. extended to the 6^th November but no appeal was lodged. In early 2016 there was an exchange of correspondence in respect of the Complainant’s staff accommodation. On the 2^nd September 2016 the Complainant made an accusation of bullying against a member of staff.

On 21^st November 2016 the Complainant wrote to Mr Niall Rochford looking for a meeting to discuss his grievances. Mr Rochford met with him on the 7^th December 2016 to hear his grievances. By letter of the 10^th January 2017 Mr Rochford set out his findings in respect of the 48 grievances that the Complainant had articulated. The letter advised of the timeline for making an appeal and who the appeal should be made to.

The Complainant submitted an appeal but did not attend the meeting scheduled to hear his appeal. It is the Respondent’s submission that following on from the medical report of 3^rd August 2017 the Respondent wrote to the Complainant on the 18^th and 27th of August and met with him on the 13th September 2017 in respect of his position within the organisation and possible return to work.

This was followed by a letter of the 14^th September 2017 giving the Complainant an opportunity to provide suggestions or recommendations in respect of how he could best be facilitated to return to work. The Complainant did not put forward any suggestions.

The Complainant was dismissed by letter of the 4^th October 2017 which set out the basis for his dismissal and advised him that the decision could be appealed , the time limit for making an appeal and who the appeal should be made to. The Complainant was invited to attend an appeal hearing on the 25^th October 2017, but he did not attend same.

It is the Respondent’s submission that dismissal in respect of incapability to perform the work which the party is employed to do is not, in accordance with the Act, an unfair dismissal. The Respondent citied a number of cases but sought in particular to rely on the four issues identified by Lardner J in the case of Bolger v Showerings (Ireland) Limited 1990 E.L. R184 which provides that the ill health must be the reason for the dismissal and the employee must be on fair notice that the question of his dismissal arising from his incapacity to carry out his work was being considered. It is the Respondent’s submission that they have met the test set out in that case.

Complainant’s Submission

It is the Complainant’s submission that when he went out sick in 2014 it was as a result of his work environment. It is his submission that his continued absence was related to issues he had in respect of his work environment which he had tried to have resolved. It was his submission that his grievances had not been processed in a fair and impartial manner.

It is his submission that the manner in which the Respondent engaged with him in respect of his grievances impacted on his ability to return to work. The Complainant submitted that in respect of the Occupational Health assessment on more than one occasion he had to bring to their attention the fact that they should liaise with his GP who had an understanding of his ill health.

It was the Complainant’s submission that meetings were arranged with only 53 hours advance notice, which did not allow him, meet the requirement in the Respondent’s policy of giving 48 notice of who his representative and or witnesses would be.

It was the Complainant’s submission that the Respondent had failed to comply with its own procedures and that the medical process had failed. It is the Complainants submission that he did respond following the meeting on the 13^th September 2017 and the letter of the 14^th September 2017. On the 21^st of September 2017 he sent an email advising that he had submitted a complaint to the WRC and was asking that they would be patient and allow him the opportunity to have his complaints heard by the WRC.

The Respondent did not reply to that email. It was the Complainant’s submission that he could not proceed with the appeal of the decision to dismiss him because of his health issues. It is the Complainant’s submission that his dismissal was unfair. The Complainant confirmed to the Court that he was seeking compensation and that he had not worked since his dismissal.

The Law

Section 6 Unfair dismissal:

(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.
(2)…….

(3)…….

(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,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Discussion

The question that this Court needs to consider is whether the Complainant’s dismissal resulted wholly or mainly from his capability to perform the work he was employed to do in circumstances where he was absent from work due to ill health from November 2014. The requirements in respect of capability arising from ill health were succinctly stated by Lardner J. in Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184 as follows:

“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.”

In the case to hand the Respondent over a period of nearly three year had the Complainant assessed five times by Occupational Health . On each occasion he was found unfit to return to work. No reason other than his absence from work due to ill health was put forward by either party as being the reason for dismissal. Having received the final Occupational Health assessment in August 2017 the Respondent met with the Complainant and afforded him an opportunity to put forward proposals that would assist him to return to work.

At that point he was on notice that the question of his dismissal for incapacity was being considered. The only proposal put forward by the Complainant was that the Respondent have patience while he processed a claim through the WRC. The Court notes that the Complainants complaint to the WRC was not actually lodged until the 2^nd April 2018.

Determination

The Court having considered the submissions before it, the law and the applicable case law finds that the Respondent honestly believed that the Complainant was incapable of carrying out the work he was employed to do as a result of his ill health. The Court therefore determines that his dismissal was fair. The Complainant’s appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
17 February 2021	Deputy Chairman