Incapacity Dismissal

The Labour Court appeal case of Noonan Services Group & Elvira Kravcova (Ref UD D1637) highlights yet again the need for employers to fully review relevant occupational and medical evidence that is available in respect of whether employees are fit to carry out their duties and to consult fully with employees prior to making a decision to dismiss.

The Claimant had been employed for 15 years as a contract cleaner before she was referred for an occupational assessment on whether she was fit to carry out her duties. An initial assessment indicated that she was not necessarily unfit to carry out her duties with a second report almost two years later concluding that she was only “partially fit” for the demanding tasks of a cleaner in a pharmaceutical environment and that she would benefit from a change of work or work environment. The claimant was dismissed subsequently on foot of this second report after no agreement was reached on a potential retirement package.

In the first instance an Adjudication Officer had determined that the dismissal was not unfair on the basis that the employee was not capable of carrying out her cleaning duties. The decision was appealed to the Labour Court who disagreed with the Adjudication Officer and said the Company had taken no steps to consider what “partially fit” meant and what duties the employee might have been able to undertake. Furthermore despite the fact that the review of the claimant’s fitness to work had taken place over a period of more than two years with various meetings taking place and correspondence exchanged, the Company had not specifically notified the claimant before the last meeting she had prior to her termination, that her job was a risk. The Company was also criticised for not offering the Claimant the opportunity to make representations prior to the dismissal decision being made and therefore said she was not afforded natural justice or fair procedures.

The claimant did not produce any evidence of attempts to find alternative employment and indicated she was in receipt of disability benefit. Twenty weeks pay was awarded in compensation.

This case clearly indicates that even when medical evidence indicates that an employee is unfit to do their job, there is still a requirement for a high level of consultation with the employee and a review of all relevant medical evidence and potential alternative opportunities prior to making a decision to dismiss.