Complainant

Respondent

Parties

Anne Booth

Tesco Ireland Limited

Representatives

Represented Herself 

Dajana Sinik, IBEC

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-00070683-001

09/04/2025

The complainant commenced working with the respondent on July 23rd 2001 in its store in Newbridge, County Kildare.  She worked as a sales assistant and, until December 2022, she worked on a full-time basis.  Around that time, she requested a reduction in her hours and, from January 2023, she worked 18 hours per week, earning around €333.00.

On July 23rd 2023, exactly 22 years after she started working in the Newbridge store, the complainant went absent due to illness.  She had surgery on her back on September 20th that year.  In October, the operations manager, phoned the complainant and had a discussion with her about her health.  In December, the complainant attended a meeting with her store manager, Mr Joe Ryall, and she told him that she wasn’t well enough to return to work yet.

In January 2024, the complainant had another meeting with Mr Ryall.  The operations manager also attended and the complainant explained that she was scheduled to have surgery on her hip on February 15th.  She attended a third meeting with Mr Ryall and the operations manager on March 10th at which she said that she was using crutches to walk and was unable to stand for long periods.  She said that she didn’t know when she would be able to come back to work.  After a further meeting in May 2024, an appointment was arranged for the complainant to have a telephone meeting with the respondent’s occupational health consultant.  The call took place on July 4th 2024, following which the occupational health doctor stated that the complainant was unfit for work and would need four to six months to recover.

On July 15th 2024, the complainant attended a fourth meeting with Mr Ryall, who explained that the company was holding her job open in the expectation that she would be able to return to work after a reasonable length of time.  Mr Ryall asked the complainant about the possibility of a phased return to work, but she said that she wasn’t able to stand for long enough.  At the end of July, the complainant provided a report from her doctor that stated that she was improving and that she might return to work “in the next 2/12 depending on review of her condition.”

On August 12th, Mr Ryall wrote to the complainant to inform her that if she remained unfit for work, her employment may be terminated.  Mr Ryall said that the complainant’s job would remain open for eight weeks.

On November 1st, the complainant had a second telephone call with the occupational health consultant.  In her report, the consultant said that, apart from her difficulty walking and standing, the complainant had another medical issue to contend with and that she remained unfit for work.  The complainant attended a review meeting with Mr Ryall on November 29th.  Mr Ryall explained that the purpose of the meeting was to consider if the complainant would be able to return to work in the near future, or if her employment should be terminated on the grounds of ill health.  With no return date in sight, on January 20th 2025, Mr Ryall wrote to the complainant to confirm that her employment was terminated.

The complainant appealed against the decision to dismiss her and a meeting took place on February 17th 2025.  Ms Frances McCormack, the manager of the Golden Island store, heard the complainant’s appeal.  At the meeting, the complainant said that she couldn’t put a date on when she would be able to come back to work.  On March 5th, she sent Ms McCormack a report from her doctor in which he stated, “…the above-named patient is not ready to start working.”  On March 22nd, Ms McCormack upheld Mr Ryall’s decision to terminate the complainant’s employment.  She recommended that he consider any application from her if she was fit to return to work in the future.

It is the respondent’s case that the complainant’s employment was terminated on the ground of capability in accordance with s.6(4)(a) of the Unfair Dismissals Act 1977 (“the Act”).  On January 20th 2025, the date on which she was dismissed, the complainant had been absent for more than a year and a half.  She was not medically fit for work and her doctor couldn’t provide an indication of when she would be able to return.

On two occasions, during her absence, the complainant attended for a consultation with the respondent’s occupational health consultant.  The conclusion was the same on both occasions, that she was unable to resume her duties at work.  During the initial 12 months of her absence, the respondent held seven meetings with the complainant, and at each meeting, the complainant said that she was getting better, but that her progress was slow.

Following an evaluation of the complainant’s condition in July 2024, she attended a review meeting on July 15th.  Before the meeting, she was informed that her job could not remain open indefinitely.  At the meeting, the complainant said that her recovery was slow and that she was not yet fit to return to work.  At the conclusion of the meeting, Mr Ryall decided that, before a decision was made about her role in the company, the complainant should have the opportunity of a further eight weeks’ recuperation.  She was informed in writing that, if she remained unfit to return to work after eight weeks, the respondent would issue notice of the termination of her employment on the grounds of ill health.

On November 1st 2024, the complainant returned for a review by the occupational health consultant who stated that, because she had limited mobility and needed to use a crutch, was unable to stand for more than 15 minutes and she was managing hypertension, she remained unfit for work.

In her submission, Ms Sinik relied on the precedent established at the former Employment Appeals Tribunal (EAT) in Reardon v St Vincent’s Hospital[1], that persistent absence from work, whether medically certified or not, may render an employee incapable of doing their job, and that, in these circumstances, a dismissal will not be considered to be unfair.

At her final review meeting with Mr Ryall on November 29th 2024, the complainant was concerned about the risk of a relapse in her condition if she returned to work.  She acknowledged that there were no immediate measures that the respondent could take to facilitate her return.  Ms Sinik said that the complainant’s prolonged absence, combined with the advice of the company’s doctor, her admission that her recovery was slow and her GP’s opinion, all pointed to a situation where she was incapable of performing the work for which she was employed.  

Ms Sinik referred to the High Court case of Bolger v Showerings (Ireland) Ltd[2], which, she submitted, provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for ill health.  Mr Bolger’s claim of unfair dismissal was dismissed by the EAT, but this decision was overturned by the Circuit Court.  In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

1.       It was the ill health that was the reason for the dismissal;

2.       That this was the substantial reason;

3.       That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

4.       That the employee was afforded an opportunity of being heard.”

Ms Sinik argued that, from the facts of this case, the respondent can demonstrate all of the above.

1.       It was clear that the complainant’s employment was terminated on the grounds of incapability, based on the current medical advice available from her doctor and from the respondent’s occupational health consultant.

2.       There was no other reason for dismissing the complainant.

3.       At several meetings, and in correspondence from the store manager, the complainant was informed that the company couldn’t hold her job open indefinitely and that she was at risk of dismissal due to incapability.

4.       At every meeting, she was given the opportunity to be represented and to state her case.

From a procedural perspective, Ms Sinik said that the complainant was provided with an opportunity to appeal against her dismissal, an opportunity that she exercised.  She was represented at the appeal meeting by her union representative.  At the conclusion of the appeal meeting, the complainant provided a medical certificate from her doctor which stated that she was “not ready to start working.”

Ms Sinik concluded her submission by referring to the mutuality of the employment relationship; the employer provides work and the employee agrees to undertake the work.  Regular attendance is an essential part of being able to fulfil that obligation.  Prolonged or indefinite absence means that the employee is not meeting their contractual duties.  Ms Sinik submitted that the dismissal of an employee in these circumstances is not unfair.

In her evidence at the hearing, the complainant said that she has been absent since July 23rd 2023.  Her entitlement to sick pay ceased on September 21st 2023.  She had back surgery that same month, and, in February 2024, she had hip surgery.  She said that she feels that she hasn’t been given a fair chance.  She sent in medical certificates for the duration of her absence and she was working hard to come back to her job.  She claims that she was dismissed because she couldn’t give a date on which she would be fit to return.  After working for 23 years for the respondent, and after two major operations, she said that she feels very hurt.

During her absence, which was for less than two years, the complainant said that she kept getting calls and letters from her employer about her absence.  She said that she would have been ready to go back and she had no intention of retiring.

In response to questions from Ms Sinik, the complainant agreed that the company kept in touch with her.  She said that she told them that she was doing her best to get better.  She feels that her name came up on a computer as “Anne Booth – absent” and that that resulted in her getting the letters.  She agreed with Ms Sinik that she was asked what support she needed to get back to work.  She couldn’t say what would have helped, she just wanted to get back.

The complainant agreed with Ms Sinik that she had an option to attend the meetings with her union representative. 

Ms Sinik read the report of the occupational health consultant dated November 1st 2024 which stated that the complainant could stand only for 15 minutes.  The complainant said that she agreed with the contents of the two reports of the occupational consultant of July and November 2024.

The complainant disagreed with Ms Sinik when she was asked if she was informed that she would be dismissed if she couldn’t say when she would be able to come back to work.  She said she was trying her best to come back.  Ms Sinik read from a letter to the complainant from Mr Ryall dated July 10th 2024 in which Mr Ryall said that the company may have no option but to put her on notice of the termination of her employment on the grounds of inability due to ill health.  The complainant said that she remembered the letter, and she agreed that she was given notice in advance of her termination.  She agreed also, that, at the final meeting she had with Mr Ryall, on November 29th 2024, she was informed about her dismissal and also, that she was entitled to appeal.  She said that the appeal was heard by a person from another store who didn’t know her.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the complainant’s case, the conduct that resulted in her dismissal is her failure to demonstrate to her employer that she would be able to return to work in a reasonable timeframe.

Section 6(4)(a) of the Act provides that;

 “…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

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

There was no issue about the complainant’s conduct or competence and her dismissal falls under the heading of capability; was she capable of coming to work?  As Ms Sinik pointed out at the hearing, the essence of the contract between an employer and an employee is that, for an agreed rate of pay, an employee will come to work regularly on the days they are contracted to do so.  It is accepted that when an employee is ill, they should not attend for work; however, when an illness interferes with an employee’s ability to attend work regularly, a dismissal for reasons of incapacity may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

It was apparent from the respondent’s submission that the company has no ill will towards the complainant and they considered her to be a good employee.  There was no indication that her dismissal was for any reason other than her ongoing absence.  At the hearing, on December 4th 2025, nine months after her dismissal, the complainant confirmed to me that she remains not fit for work.  It is apparent therefore, that, even if she had not been dismissed, she would still not be working for the respondent. 

In complaints of this kind, the established approach to a consideration of the fairness or otherwise of a dismissal is that provided by the High Court in the decision referred to by Ms Sinik, of Bolger v Showerings (footnote 2).  The employer must show that the employee was dismissed because they have been absent due to illness and this must be the substantial or only reason.  I am satisfied that the respondent communicated clearly to the complainant that her employment was terminated solely because she was unable to come to work and she was unable to say when she would be capable of returning.  I’m satisfied also that the respondent complied with the third part of the Bolger v Showerings test, when the complainant was given notice in July 2024, one year after her absence commenced, that her employment would be terminated if there was no indication of when she would be fit to return.  Finally, I am satisfied that the complainant was given a fair opportunity to respond to her employer’s concerns about her absence and about their intention to terminate her employment. 

Having considered the evidence, it is my view that the respondent dealt reasonably with the complainant, who, for the past two and a half years, has been suffering from poor health to the extent that she is unable to attend work.  The employment relationship is based on an agreement that the employer provides work for wages.  If, after a reasonable timeframe, and a proper investigation, the employee cannot do the work, then, sadly, the relationship is broken. 

Before concluding, I wish to acknowledge the complainant’s sense of hurt and rejection at being dismissed.  It seems that, after 23 years in her job, she felt insignificant to her employer.  She described her husband making a phone call to a deputy manager who hadn’t heard of her.  She felt like a name on a list on a computer, and that letters were issued by the computer.  She complained that the person who heard her appeal didn’t know her. 

Dealing with the last matter first, I explained to the complainant at the hearing that the purpose of the appeal was for a person who had no knowledge of her case to take a fresh approach and to consider the facts without any history or previous relationship.  Unfortunately, having reviewed the facts, I am entirely satisfied that Ms McCormack could reach no other conclusion than that the complainant was incapable of returning to work.  This outcome doesn’t reflect any fault on the part of the complainant, or any disrespect on the part of her employer.  The fact that Ms McCormack left the option open to the complainant to contact the company if she was able to come back to work is evidence of this positive disposition.

In conclusion, I have considered all the facts, and, while I acknowledge the complainant’s sense of injustice, it is my view that most employers in these circumstances would have reached the same conclusion as the respondent in this case.  I am satisfied therefore, that it was reasonable for the respondent to terminate the complainant’s employment on the capability ground.

I have concluded that the decision of the respondent to dismiss the complainant was reasonable and I also find that the process was fair.  On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

Dismissal due to ill health