10 May Dismissal On Grounds of Incapacity

A recent Labour Court decision published on the 7th April 2017 overturned the decision of an Adjudication Officer who had awarded 19k to a retail assistant in Dunnes Stores after determining that she had been unfairly dismissed after being absent from work for three years (Ref UDD1714).

The complainant had been employed since 2004 before commencing sick leave in April 2012 which continued up until her dismissal in August 2015 (The period of absence included a period of statutory maternity leave which the Court agreed  had been wrongly included in the overall period of absence due to illness). The complainant contended that she should not have been dismissed without her employer seeking an independent medical opinion as provided for in her terms of employment and that an incident involving a customer complaint in 2012 had not been dealt with properly and was a factor that contributed to her absence which was for reasons of anxiety and stress. 

The respondent outlined that they had held several meetings with the complainant throughout her period of absence which sought to address the issue of when she might be in a position to return to work. The respondent said they informed the complainant that they could not keep her job open indefinitely if she was unable to provide them with a return to work date and provided records of notes of meetings to this effect which had taken place in July 2012, January 2013, June 2014, January 2015, March 2015, May 2015 and July 2015. The respondent said they were unaware until 2015 that there was any issue with a customer complaint going back to 2012 and that it was reasonable in all the circumstances to terminate employment on the basis of the complainant’s GP confirming on all medical certificates submitted that she was unfit to work and no return date could be given. The respondent said they did what a reasonable employer would have done in the circumstances and the decision to dismiss was a reasonable response as per the test outlined in Foley v Post Office [2001] and Anglican Home Improvements Ltd v Kelly [2005]. The respondent also reiterated that there was no dispute in relation to whether the complainant was fit to work or not.

The Court accepted that the respondent was reliably of the view that the complainant was incapable of fulfilling her duties based on the regular medical certificates and report received from her GP with no indicative return date and that it was this incapacity that gave rise to the substantive reason for the dismissal. The Court said it was not unreasonable that the complainant had not been referred for an independent assessment in circumstances where there was no conflicting medical opinions. The Court also held that the period of absence had been proactively managed and the Complainant had been given full opportunity to be heard and to present any relevant feedback about the proposed dismissal.

The Court concluded that the complainant had not been unfairly dismissed and there were substantial grounds justifying the dismissal in circumstances where there was no prospect of her returning to work in the foreseeable future due to her continuing illness.

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