ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008054
Parties:
| Complainant | Respondent |
Anonymised Parties | Healthcare Assistant | Healthcare Provider |
Representatives | Louise Farrell Matthew Farrell | Mary Quinn, HR Lisa Lavelle Diane O'Neill |
Complaint:
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-00010686-001 | 07/04/2017 |
Date of Adjudication Hearing: 30/11/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant contends that she was unfairly dismissed from her employment when the respondent retired her on grounds of ill health without affording her due process. |
Summary of Complainant’s Case:
The complainant was employed as a Healthcare Assistant from 10th January 1994 to 9th October 2016. Following a work related injury for which she did not pursue legal compensation, she suffered ongoing pain and suffering during 2011 and thereafter. Following spinal surgery, the complainant sought for some minor modifications in her duties. She attended Occupational Health assessments during 2011 and between 2012 and 2016. At no stage did she ever receive any copies of the medical reports. She was called to a meeting on 28th June 2016. The letter inviting her to the meeting stated that it was to discuss “recommendations” with her. It did not state the possible outcome of her losing her job. As a result of this failure to state the severity of the situation, the complainant proceeded with the meeting without union representation. It is submitted that this meeting was in fact an ambush. She was not given the letter from Occupational Health supposedly stating that there were only two options available to her: Redeployment or Retirement through ill-health. The Management informed her that the only option available was retirement due to ill-health. It is submitted that the meeting of 28th June 2016 was a ‘termination’ meeting and that she was never given a letter of termination or right to appeal. Following this, there was considerable confusion regarding her employment situation. Between then and October 2016, the complainant received various messages, e.g. to stay away from work on sick leave or annual leave, then following representation from her Union Official, that she should return to work. Following another meeting with Occupational Health, they informed the complainant that they were trying to find her an alternative position and for her to consider if she wanted to retire on grounds of ill health. Following her return from annual leave, the complainant was informed that there were no alternative positions and at that stage she took the only option left to take. The complainant submits that there have been numerous failings on the part of the respondent resulting in her employment being terminated as a result. It is submitted that although minor modifications had been put in place, her request to return to these restrictions led to her manager terminating her contract through ill health. It is alleged that Occupational Health had already proposed the restrictions, but line management kept this information from the complainant. It is submitted that in the circumstances where the respondent has failed in its duty of care to an employee to assist them following a work related injury and the failure to follow due process, the complainant was unfairly dismissed from her employment. |
Summary of Respondent’s Case:
The area of work in which the complainant was engaged was that of Residential Services for adults with intellectual disabilities. The service is provided in a community setting. Her role involved patient care, catering and cleaning. In the course of her duty in February 2011 she stated (in an incident form filled out the following day) that she had hurt her back. On 15th February she attended A&E and returned to work on the afternoon of 15th February with a medical certificate covering her from 15/2/2011-19/2/2011 stating “muscular spasm”. The complainant attended Occupational Health on 5/5/2011 where she was declared “fit for work”. Almost a year on, the complainant attended Occupational Health on 1/2/2012. On this occasion the Occupational Physician advised that the complainant was unfit for work and required treatment. From 1/2/2012 to 13/9/2016 the complainant attended fifteen Occupational Health appointments. Management on receipt of these Occupational Health assessment reports have accommodated the complainant in the following way: - Restricted duties - Excused from night duty - Assigned to one house in the Community A meeting was held on 28th June 2016 with the complainant and management. Unfortunately the complainant’s union representative was unable to attend the meeting due to unexpected leave. At this meeting management discussed the Occupational Health Report of 26/4/2016. At this stage the respondent indicated that they were not in a position to facilitate the complainant with redeployment into an alternative role. Due to her medical condition, the complainant was restricted in performing her duties and the respondent was not in a position to sustain this arrangement due to risk to both the resident and the employee. The complainant was recommended for retirement on ill health grounds and it is the position of the respondent that she was not unfairly dismissed from her employment. |
Findings and Conclusions:
Section 6 (1) of the Unfair Dismissals Act 1977 provides: “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.” Section 6 (4) provides that the dismissal shall be deemed not to be an unfair dismissal if it results wholly or mainly from one or more of the following: “the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do”. The respondent in this instant case, dismissed the complainant by way of retirement on the grounds of ill health on foot of Occupational Health reports which stated inter alia that “it is entirely reasonable to limit her from heavy manual handling duties..” (24/2/2016) and “the only option for her is either to be redeployed into an alternative role, or retire on ill health grounds” (26/4/2016) and “As you inform me that there are no alternative roles available to her, then regrettably she has no option but to apply for retirement on health grounds” (22/9/2016). Section 16 (3) of the Employment Equality Act 1998 confers certain obligations on employers to do all that is reasonable to accommodate the needs of an employee who has a disability. In this case, I note that the complainant’s employment was terminated on the grounds of ill health in circumstances where she was not given due process. She was not consulted on any alternatives, she was not advised of the serious consequences of the meeting on 28th June 2016 and she was not represented at the meeting. While I note the sudden unavoidable absence of the union representative, that meeting should have been postponed until such representation was available. Finally, I note that no appeal was allowed. In all the circumstances, I find that the complainant was unfairly dismissed. I recommend that compensation is the appropriate remedy. I find that the respondent should pay to the complainant the sum of €12,720 compensation. |
Decision:
I find that the complainant was unfairly dismissed. I recommend that compensation is the appropriate remedy. I find that the respondent should pay to the complainant the sum of €12,720 compensation.
Dated: 10th April 2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham