ADJUDICATION OFFICER DECISION
Shutter installation service
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
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.
The complainant commenced work as a fitter/driver with the respondent in 2002. His job entailed installing roller shutters.
He worked full time until he became ill in 2015. After an occupational health assessment in 2018 it was agreed with his employer that he could now only work 20 hours per week.
He earned €550 a week.
The complainant was dismissed on 26 April 2019. His remedy is reinstatement.
He submitted his complaint to the WRC on 3/5/2019.
The respondent corrected the company name on their own submission. This was agreed. The correct name is reflected in this decision.
Summary of Complainant’s Case:
The complainant worked as a van driver and a fitter of shutters on premises.
He worked full time hours until 2015 when he was diagnosed and treated surgically for Crohns disease. He had periods of sick leave thereafter.
After an occupational health assessment in February 2018, it was agreed with his employer that he could now only work 20 hours per week.
On Friday 26th April 2019, the respondent director approached the complainant and asked could he work more hours. The complainant explained he could not due to his health condition. The respondent asked the complainant to return the keys of the van; he stated that he had no work for the complainant. The complainant returned the keys. The respondent stated that he wanted him to work full time. He claims the respondent director dismissed him on the spot.
The complainant and his father met the respondent director on the 24 May. The respondent asked him to go for a medical as his insurers had requested this course of action. The letter from the Insurance company specifying this was not shown to the complainant and wasn’t available at the time. The complainant agreed to the medical. The complainant submits that he gave permission for the Occupational Health Consultant to contact his own specialist concerning his fitness to work. The complainant’s consultant said that he had received no contact from Occupational Health Consultant.
The medical assessment was carried out on 27 July 2019. The complainant was not provided with a copy of the medical report.
The complainant has not received a letter of dismissal or a P45.
The respondent employed a replacement.
Contrary to what the respondent is now saying, there was no expression of any concern about the complainant’s health at the meeting on 26 April 2018.
The respondent continued to pay his salary.
The complainant was admitted to hospital on 7 August and discharged on 12 August 2019.
The complainant accepts that he cannot lift heavy goods, but he can do smaller/ lighter jobs. There were few complaints about his work considering the number of customers he had worked with over 14 years. Regarding the car crashes, he had offered to pay for repairs on 2 of the vehicles. He was not responsible for one incident.
Complainant confirmed that he would be happy to have his job back.
The complainant does not wish to withdraw the complaint
Complainant has not sought or acquired alternative employment.
Summary of Respondent’s Case:
The respondent denies that the complainant has been dismissed. The complaint is still employed by the respondent. The respondent continues to pay the complainant his salary. The respondent awaits a statement declaring the complainant fit to resume work. His job is there for him subject to medical evidence declaring him fit to resume work.
Since being diagnosed with a chronic condition (Crohns Disease) in November 2015 which initially requiring surgery and subsequent medical treatment and supervision, the complainant has had frequent periods of sick leave.
Since April 2018 the complainant has been on reduced hours of 20 per week. The complainant is in receipt of incapacity benefit for 2 days a week.
The respondent states that he advised the complainant on the 26 April 2019 that he was going to have to get well. Respondent disputes that he asked for the keys back or that he stated that there was no work for the complainant. He was concerned that the complainant stopped frequently to purchase medications. Other staff had stated that the complainant was unwell. The respondent advises that he did employ a person to work in the shuttering area but in an area in which the complainant was unskilled.
The complainant has been involved in four van crashes in the past year and a half. These occurred on 26 February 2017, 23 May 2018, 12 February 2019 5 March 2019. He has to take pain medication and the respondent is concerned that this could affect his driving. These crashes prompted the respondent’s insurers to telephone the respondent on 16 July 2019 and to specify that a medical report on the complainant’s fitness to work and capacity to drive was required. This medical assessment was done on 27 July 2019. The complainant was assessed as unfit to work with no likely prospect of him becoming fit to resume work and no reasonable accommodation was identified or recommended.
The respondent brought him to the Social Welfare office in 2018 so that he could work for 24 hours a week.
The respondent advised that there was to be a further medical, that he had no date for same but that he would contact the Occupational Health Service about a follow up medical.
He asked the complainant why he was making a complaint of unfair dismissal when he was still paying him.
Without prejudice to their position that the complainant had not been dismissed and in circumstances where the Adjudicator might find to the contrary, the respondent cites section 6(4)(d) of the Act of 1977 as a defence.
In the event that the Adjudicator might find that the complainant had been unfairly dismissed, the respondent cites Pacelli v Irish Distillers (UD) 57/2001 in support of their argument that they employed correct procedures.
They refer to Allied Irish Banks Plc v Brian Purcell (2012) 23 E.L.R.189 in support of their argument that the respondent acted reasonably.
They ask the Adjudicator to find that the claim for unfair dismissal is not well founded.
Findings and Conclusions:
The dismissal is contested.
While the respondent states that he awaits a statement declaring the complainant fit to resume work, he has done nothing to expedite that process nor has he informed the complainant as to the steps necessary to resume work. He failed to provide the complainant with the medical report of July 27 which could have prompted the complainant to seek his own medical advice as to his fitness. The complainant has not provided counter medical evidence attesting to his fitness. At the hearing the respondent stated that there was to be a follow up medical assessment and he undertook to pursue this. The respondent has treated the complainant poorly and with a lack of transparency as to what is required for him to resume work. This he must do.
The respondent has left the complainant in a state of suspended animation but that is different from having been dismissed. This is not a complaint of constructive dismissal. The complainant has not resigned. Indeed, the complainant ‘s preferred remedy is reinstatement and he confirmed at the hearing that this his wish is to return to work.
Where a dismissal is contested the onus is on the complainant to demonstrate that he has been dismissed. The evidence which the complainant uses to support his complaint is the conversation of the 26 April 2019 with the respondent director. The respondent director denies that he made the statements as alleged. Whatever about the sincerity of the respondent director’s evidence on this point or his stated wish to have the complainant return to work, I find there was no letter of dismissal and no p45 was issued. More importantly, the respondent continues to pay the complainant without interruption, after the 26 April and before the complainant had lodged his complaint with the WRC. In a letter dated the 16 May 2019, the respondent refers to the complainant being on sick leave for health and safety reasons.
For the reasons cited above, I do not find that the complainant was dismissed.
I do not find his complaint to be well founded
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not find this complaint to be well founded.
Dated: 26th November 2019
Workplace Relations Commission Adjudication Officer: