Consideration of “alternative duties” before dismissal

By Deirdre Malone
28 February, 2017

The Labour Court has recently ruled in the case of Noonan Services Group Ltd –v- Elvira Kravcova concerning an unfair dismissal claim brought by an employee engaged as a cleaner (“the Claimant”) against her employer, Noonan Services Group Limited (“the Company”) and its failure to adopt any procedure or to afford the employee her rights to procedural fairness or natural justice.

Background to the case

The Claimant worked as a contract cleaner for 15 years with the Company. In 2013 the Company became concerned about her ability to perform her duties and referred her for an occupational assessment.

The report from the Occupational Assessor stated:

“While this condition does not categorically render Elvira medically unfit for any of her current work duties, she is convinced that her ongoing work is aggravating her symptoms. I feel it is reasonable for Elvira to consider a number of options including either to retire from her current position and source alternative work or to take a period of time off work to attend for treatment … with a view to considering less physically demanding work and/or part time working hours in the future”. (emphasis added)

Following the assessment, the Company wrote to the Claimant in October 2013 directing the Claimant to complete her full list of duties. The Claimant struggled to carry out those tasks and had a number of meetings in October, November and December 2013. In July 2014 the Claimant was advised that her role would change. The Claimant resisted the change but the Company relied on the 2013 medical report and stated that the employee was fit to carry out all of her duties and that it was not appropriate for her to refuse to carry out duties.

By April 2015 the Claimant filed a certificate from her own GP stating that she “should not do heavy physical work …”. At the same time, the Company referred the Claimant back to its own medical advisors for a second assessment. The report issued in May 2015 and concluded as follows:

“I think it is clear that she is (at best) partially fit for the demanding tasks of a cleaner in a pharmaceutical facility and she would benefit from a change of work and/or work environment”.

In July 2015, the Claimant wrote to her employers asking what the retirement terms were. A meeting took place to discuss the medical report following which the Claimant wrote again asking the Company to set out its retirement terms.

Ultimately the Company invited the Claimant to a meeting to discuss how they were going to “move forward”, given the difficulty that the Claimant had in carrying out some of the duties associated with her role.

On 28^th September 2015 a meeting took place during which the Claimant was dismissed from her job. There was an appeal within the Company to that decision and it was unsuccessful.

The Labour Court decision

Section 6 of the Unfair Dismissal Act, 1977 as amended (“the Act”) permits dismissal in certain circumstances including “the capability…of the employee for performing work of the kind which [s]he was employed to do.”

At first instance, the Adjudication Officer held that the dismissal was not unfair within the meaning of the Act.

The Labour Court, on appeal, considered the evidence of the Company Executive who took the decision to dismiss the Claimant from her position with the Company.

The evidence was as follows:

1. The Claimant was increasingly unable to carry out her duties.
2. The Claimant had been assigned to lighter duties following her assessment with the occupational advisor in 2013.
3. During the meeting in September 2015, the Claimant outlined that she wished to retire on ill health grounds, but wanted a monetary settlement to do so.

In light of all of the above, the Company Executive indicated that he dismissed the Claimant giving her 8 weeks’ pay in accordance with her statutory notice entitlement.

The following factors are relevant:

1. The Company did not notify the Claimant before the meeting that her job was at risk.
2. The Company did not offer the Claimant any opportunity to reflect on the discussion, or to take advice, or to make representations before a decision was made.
3. The Company failed to make contact with its Occupational Health Physician to discuss the Claimant’s condition.

The Court held that the medical advice clearly stated that the Claimant was “partially fit” to undertake the duties associated with her role, however, the Company took no steps whatsoever to consider the extent of that capacity, the duties that she could undertake, nor was the Claimant advised to speak to her own medical advisors to consider those points.

The Court held that the Company had no basis for finding that the Claimant was unfit to fulfil her duties.

It stated that the Company’s procedures were “fatally flawed” and the Claimant was not afforded her right to natural justice or fair procedures.

In determining the extent of the award, the Court noted that the Claimant had been unemployed for 40 weeks. The Claimant produced no evidence of any applications for jobs or interviews to the Court. The Claimant advised the Court that she had been looking for work and that she had undertaken courses to improve her skillset. As of July 2016 she was in receipt of disability benefit and it appeared that she would be unable to undertake paid employment in the near future.

In the circumstances the Claimant was awarded €8,160 (20 weeks’ pay).

What can be learned from this case?

There have been a number of cases in recent times through the Labour Court and the High Court underlining the critical importance for employers to engage with Occupational Health Physicians and employees in circumstances where it is identified that an employee cannot carry out the extent of their normal duties.

The Company in this case gave no consideration to any alternative duties to which the Claimant may have been suited. It sought no input from the Claimant and sought no guidance from its medical advisors as to the type of duties that would suit the Claimant’s physical state.

Furthermore, in the event that such consideration takes place, it is critical that the employer notifies an employee that their position is at risk, particularly in the event that they cannot identify any suitable alternative roles. While the Claimant in this case wanted to retire her role with some sort of severance package, the employer took the fatally flawed step of terminating without any consideration to fair procedures or natural justice.

In the event that an employer is presented with such a situation, it is a fundamental step in the process to explore what alternative options are available to the employee. This is not a task limited to the employer’s opinion of an employee’s capabilities. An employer must engage and seek the views of the employee, the employer’s physician and potentially the employee’s physician before any step to terminate is taken.

A full copy of the decision can be reviewed here

If you have any queries in relation to the content of this update, please contact -
Deirdre Malone, Partner, deirdre.malone@rdj.ie