It is quite often the case, that an employee, will be absent from the work place for a significant period of time, as a result of an injury, or, illness. Quite often, the employer, at a certain point, needs some certainty, in relation to the prospect of the employee returning to work.
In the most common situation, an employee is out for a short period of time due to illness and, the issue, as to whether an employee can be dismissed by reason of incapacity, does not arise. However, what happens where an employee suffers horrific injuries in an accident, or, an employee is absent on long term stress leave, or is suffering from depression, or any other illness? This is an issue which has come up for debate on numerous occasions, and, in numerous venues.
The legal position was fairly well summarised in a recent decision of the Employment Appeals Tribunal in the case of Loretto Kearney –v- Tesco (Ireland) Limited, Case number UD86/2010.
In this particular case, Ms Kearney was out of work, on long term sick leave. The sick leave commenced in December 2007, following a traumatic family tragedy. Ms Kearney saw the company doctor more than once during 2008.
Ms Kearney attended a number of meetings with Tesco in relation to her medical condition, and the question as to whether a return to work was possible, arose at these various meetings.
Ultimately, a meeting was held on the 13th of February, 2009. Ms Kearney was not in a position to give a return date at that meeting. Tesco felt that it could not keep Ms Kearney’s position open given that she could not give a return date, and, by letter of the 27th of February, 2009, Tesco dismissed Ms Kearney.
The letter did not offer a right of appeal. However, the letter, did indicate that as soon as full fitness was restored, the company would consider an application for re-employment.
Ms Kearney challenged the decision to dismiss her by reason of incapacity.
Tesco relied on two legal principles justifying the dismissal. The first was the Doctrine of Frustration. In other words, the illness was such as to so frustrate the Contract of Employment as to in effect, terminate it.
On the facts, the Employment Appeals Tribunal said it was not satisfied that “further performance of the Appellant’s (Ms Kearney) obligations in the future would either be impossible or would be a thing radically different from that undertaken by her”, furthermore the Tribunal said that it could not accept that the “prospects for the future were so poor, that it was no longer practical to regard the Contract as still subsisting”.
The second argument raised by Tesco was a reliance on Section 6(4)(a) of the Unfair Dismissals Act, 1977, which deals with the Employees incapacity to do her work.
The Employment Appeals Tribunal referred to a previous decision of the High Court in the case of Bolger –v- Showerings (Ireland) Limited.
In that case, the High Court set out the rules under which a dismissal on the basis of incapacity to do the job, could be deemed to be fair. These include:-
That it was the incapacity itself that was the reason for the dismissal.
That the reason was a substantial one.
That the Employee received fair notice that the issue of dismissal for incapacity was being considered; and
That the Employee was afforded an opportunity of being heard.
On the facts, the Employment Appeals Tribunal held that none of the five letters, in total, sent to Ms Kearney, inviting her to meetings to discuss a possible return to work date, indicated that there was any possibility of her being dismissed, in the event of any inability on her part to return to work.
It was held that if dismissal is being contemplated, at any time during long term sick leave, then the Employer must inform the Employee of that possibility in the clearest of terms.
The Tribunal held that Ms Kearney did not receive “fair notice” or any notice that there was some consideration being given to her being let go, and, held in her favour. Ms Kearney was reinstated to her position.
There is no doubt, that there are cases where somebody’s incapacity can lead justifiably to a dismissal. It is the process, however, and the requirement that the rules of natural justice be applied, that often trips up Employers in relation to dealing with such dismissals. The lack of warning and the lack of a facility for appeal, clearly were very strong considerations taken into account by the Tribunal.
Patrick Mullins
CEDR Accredited Mediator/Solicitor
Partner at BDM Boylan Solicitors
Clarkes Bridge House
Hanover Street
Cork
Telephone no: 021 4313333
Email: pmullins@bdmboylan.ie
Website: www.bdmboylan.ie