UFD Competence
Cases
O’Donoghue v Emerson Electric (Ireland) Ltd
[UD 177/1986]:
EAT
“We are satisfied that the respondent, far from giving the claimant any clear warning or proper opportunity to improve the performance of the Irish plant to the satisfaction of the American management, did not express its dissatisfaction to him in clear terms. Isolated, passing comments on some details cannot be construed as warnings, or indeed expressions of dissatisfaction especially against a background of sometimes fulsome praise.”
Employer v Employee
UD964/2011
EAT
The claimant was employed as a butcher with the respondent company from 13th May 2002. In 2004 the claimant began to feel pain in his back but continued to work 2006 when he had to attend a physiotherapist. In September 2007 he ceased work due to his on-going pain.
In March 2008 he returned to work but again had to cease in June 2008 because of his pain. In 2009 he tried to return to work but after one day he could not continue and again was on sick leave.
In October 2010 he was certified to return to work and did so on 26th October 2010. During the day he complained of back pain. His pain was so intense he collapsed. An ambulance was called for him.
On 1st November 2010 the Site Manger wrote to the claimant in his native Portuguese. It stated that due to his large period of absence and his unavailability to work they found he had
frustrated his contract and dismissed him.
….
Determination:
..
In the circumstances the Tribunal fully accepts that he claimant knew or ought to have known that the respondent was looking at frustration of contract as an inevitable consequence of the unavailability of the claimant for employment by reason of physical ill-health.
In considering the evidence the Tribunal has to be mindful of the fact that the claimant was unavailable for work in excess of two full years prior to the 26th October 2010. The Tribunal must also have regard for the fact that this workplace does not have much requirement for non-physical jobs. Meat processing is physically very demanding and even the lightest of jobs was proving beyond the claimants physical capabilities.
On 1st November 2010 the claimant was formally notified of the respondent’s intention to terminate his employment with immediate effect, on the grounds of frustration of contract. The Tribunal accepts that the letter of termination may have been blunt but could not have been completely unexpected for the claimant in light of the previous communications and the meeting held on the 1st November.
The Tribunal notes that the letter of termination included a right of appeal which was not availed of. The claimant’s evidence as to why this was not availed of was not satisfactory or coherent. The claimant is claiming that termination of his employment in the manner outlined amounts to an unfair dismissal as the decision made was made prematurely and without consideration being given to alterative arrangements.
The respondent urges the Tribunal to accept that the contract was terminated by the operation of law as the contract had become inoperable. The respondent had behaved prudently and reasonable in all the circumstances. In the alternative the Tribunal has been invited to determine that the claimant can no longer perform the function he has been engaged to perform as per Section 6 (4) a of the Unfair Dismissals Act 1977.
In considering all the evidence the Tribunal is perfectly satisfied that the contract of employment was frustrated and had become inoperable. In such circumstances the Unfair Dismissals legislation has no application. Notice was not given in the letter of the 1st November and the claimant was entitled to be given statutory notice. However the Tribunal cannot direct payment should be paid in lieu when the claimant was out on certified sick leave at the time”.
Employer v Employer
UD919/11
EAT
“The claimant was the principal and also taught in the school. While the claimant was out on administrative leave in late 2010 the vice principal took over her class. The Board asked the vice principal to write a report on each child. The claimant was unhappy with the report. It was the claimant’s view that the content and tone of the report displayed a complete lack of respect towards the claimant. The claimant felt that the vice principal was trying to undermine her position as principal and the claimant had lost all faith in her. The report put into question the claimant’s competence, professionalism and commitment to the school’s method of education and she utterly rejected what she believed to be the vice principal’s defamatory and offensive comments. The claimant felt duty bound to inform the Board of her position in this regard. She wrote to the Board on 26th January 2011 with her views. She also gave a copy of this letter to the vice principal on 28th January 2011 and advised her to reflect on her position over the weekend. She emailed TC, Chairperson of the Board and informed him of her discussion with the vice principal. The vice principal met with TC following her receipt of the claimant’s letter.
The claimant was invited to attend a disciplinary hearing and this took place on 22nd February 2011. RD together with Board member, KH and the respondent’s solicitor attended the disciplinary hearing with the claimant and her solicitor. The purpose of the meeting was todiscuss the claimant’s actions/ behaviour towards the vice principal. The claimant had writtento the Board insisting that the vice principal be removed from the school and also copied theletter to the vice principal.
…….RD chaired the disciplinary hearing. The claimant stated that she did not actually insist on the vice principal’s removal from the school but that she be removed from her post as vice principal, not actually from her teaching post just as a matter of clarification. Consequently,this was accepted. The claimant had made a recommendation to the Board in light of the vice principal’s action in writing a report on the claimant’s class while she was on administrative leave in December 2010. It was the claimant’s view that the content and tone of the report displayed a complete lack of respect towards the claimant. The claimant felt that the vice principal was trying to undermine her position as principal and the claimant had lost all faith in her. The claimant felt duty bound to inform the Board of her position in this regard.
The claimant proposed that the Board ask LO to become acting vice principal in the interim.
RD thought it was awful and disgraceful behaviour of the claimant that she had handed the vice principal a copy of the letter the claimant had previously given to the Board. She contended that the claimant had behaved against the school ethos. The claimant contended that she was willing to enter a process of reconciliation.
A performance improvement weekly plan was initiated for the claimant. RD and TC met with the claimant at the first meeting.
By letter dated 1st March 2011 the Board considered the claimant’s actions in requesting the Board to remove the vice principal from her position as an extremely serious matter. The Board found the behaviour in handing a copy of the letter of 26th January 2011 to the vice principal and asking her to consider doing the honourable thing and step down as serious misconduct and for which termination of the claimant’s employment was warranted. Previous disciplinarymatters and warnings on the claimant’s file did not play any part on the decision to dismiss theclaimant from her employment.
The claimant was afforded a right to appeal the decision to dismiss her within seven days of this letter. She did not appeal that decision.
Claimant’s Case:
….The claimant was handed a performance review plan and she attended one meeting regarding this plan. The claimant sought to have an independent facilitator to help resolve matters and suggested M. She furnished M with background information. M in turn contacted the Board.
The claimant was again suspended for alleged breach of data protection. Subsequently, as she had lost all trust in the Vice Principal she asked her to step down from her post. She handed her letter to her to this effect. She also wrote to the Board. The claimant was happy that the Vice Principal remain on as a teacher in the school.
The claimant attended a disciplinary meeting on 22nd February 2011 together with her solicitor. RD chaired that meeting. Also in attendance were KH and the respondent’s solicitor. A stenographer was present and recorded the minutes of that meeting. The claimant said that she did not insist on the Vice Principal’s removal from the school but clearly requested she beremoved from her post as vice principal and not from her teaching post. This was accepted. She believed that the Vice Principal had lost all credibility by writing such a report while theclaimant was absent on administrative leave and she felt duty bound to inform the Board of herposition in this regard. She felt the Vice Principal had completely undermined her position asPrincipal. The claimant saw no point in questioning the Vice Principal at the disciplinarymeeting. Her relationship with the Vice Principal had broken
down because of the Board’sprocedures. The claimant really wanted to reconcile with the Vice Principal but this was notpossible.
The claimant was dismissed from her employment on 3rd March 2011.
Following legal advice the claimant chose not appeal the decision to dismiss her. She had no faith in the appeals process.
Following the claimant’s termination of employment, he claimant secured a fixed term contract in November 2011. She has since been working on fixed term contracts but at a lower salary.
Determination:
The Tribunal carefully considered the evidence adduced and submissions furnished and in particular the matters that led to the claimant’s dismissal.
The Tribunal finds that the procedures used by the respondent were unsatisfactory. While the claimant was not compelled to invoke the appeal process the Tribunal finds that it would have been helpful.”
Employer v Employer
UD2413/2009
EAT
“Determination:
This was a lengthy and difficult case which was dealt with by the legal representatives with the highest level of professionalism. The Tribunal heard the oral evidence of a number of witnesses and both sides submitted documentary evidence. After having carefully considered all of the evidence before it, the Tribunal has unanimously determined that the claimant was unfairly dismissed.
It is common case that the claimant, in her role as secretary, was responsible for the receipt and lodgement of monies received by the school. It is accepted by the Tribunal that while the claimant was away in Australia, the respondent discovered discrepancies in the way in which school monies were being accounted for. It is also accepted that, as a result of these discrepancies, an investigation, including an audit, was carried out. The result of this audit was that there was a shortfall of approximately €12,000.00 of school monies. As a result of this investigation, the auditor raised a number of queries. The Tribunal accepts that the respondent had legitimate questions to ask of the claimant. However, the Tribunal does not accept that the respondent was entitled to single out the claimant in the course of its investigations as there were other parties who also had access to the monies. It also difficult to get a true impression of the extent of the shortfall and/or the reason for the shortfall of monies as the accounting procedures adopted by all members of staff were routinely very slack.
As a matter of law, the Tribunal when considering whether, or not, the particular action or inaction of an employee justifies a dismissal will have regard to the reasonableness of
The employer’s decision to dismiss. In deciding whether, or not, the dismissal was unfair we apply a test of reasonableness to 1. The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and 2. The conclusion arrived at by the respondent that, on the basis of the information, resulting from such enquiry, the claimant should be dismissed.
In this particular case, the quality and extent of the respondent’s investigation was highly questionable in circumstances, where the accounting practices in place were very relaxed, certain other persons had access to the monies and one individual, namely, the principal was given too much responsibility for the conduct of the enquiry and the instigation of the disciplinary procedure. However, that is not the end of the matter as the claimant herself as some responsibility to bear. The claimant received advice that she should not attend a disciplinary meeting unless she was first reinstated. Her refusal to engage with the process effectively backed the respondent into a corner. If the facts of this case were different, this failure to engage would have entitled the respondent to dismiss her as it would have had little alternative. However, it is a unique feature of this case that the initial contact between the respondent and the claimant’s family was handled poorly and it is also a feature of this case that the enquiry itself was flawed to such an extent that it would be unjust to hold that her failure to engage remedies the deficiencies on the respondent’s part. In those circumstances, thedecision to dismiss, based as it was on a flawed enquiry could not be said to be within therange of reasonable responses open to the employer.
The Tribunal determines that compensation, and not reinstatement, be the most appropriate remedy in this case. Accordingly, having regard to all the circumstances, the Tribunal awards the claimant the sum of €9,850.00.
NOONAN SERVICES GROUP LIMITED v EK
LSDeputy Chairman
A Sales Representative v A Books Wholesaler
RB v Google Ireland Limited
Horan -v- CWS BOCO Ireland Ltd
Bus atha Cliath – Dublin Bus -v- McKevitt
[2018] IEHC 78
JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 29th day of January, 2018
Nature of the case
1. This matter came before the Court by way of appeal from the Circuit Court, which in turn was an appeal against the determination of the Employment Appeals Tribunal determination that Ms. McKevitt was unfairly dismissed by Dublin Bus. Ms. McKevitt was dismissed on the ground that she did not have the capability to perform the work she was employed to perform, namely driving a bus. This was against the background of a multiplicity of health problems that she had suffered over a number of years, between 2009 and 2014. Her dismissal took effect in April 2014. The case raises questions about the necessary procedures in a dismissal case where the issue is not one of misconduct but rather medical capability to perform one’s job.
The evidence in the case
2. The court heard evidence from Mr. O’Donohue, the head of human resources for Dublin Bus, Dr. Loftus, an occupational physician for the CIE Medical Department, Dr. Whelan, the Chief Medical Officer of Dublin Bus (hereinafter referred to as the CMO) and Ms. McKevitt. Dr. Loftus’ notes of his interactions with Ms. McKevitt were available, although Ms. McKevitt maintained that they should not have been admitted at any of the hearings without a court order, and also, in correspondence, had refused to allow her GP records to be made available. In broad terms, the evidence of each of the witnesses was as follows.
3. Mr. O’Donohue, head of Human Resources and Development in Dublin Bus, gave evidence of the importance of safety to the organisation, saying that it was their “number one priority” and was at the top of their agenda at all times. He said that they had a duty to protect employees, the general public and the travelling public using the buses. He explained the role of the CMO in interacting with sick employees, and clarified that his department would not be given the details of an employee’s illness, and that the opinion that an employee was unfit for duties was that of the CMO, and that the HR department would not second-guess it. He said that there was no formal appeal in relation to such decisions such as there would be with a disciplinary matter. He was taken through the chronology relating to Ms. McKevitt, which is discussed below.
4. Dr. Loftus was the doctor in the office of the CMO who had interacted with Ms. McKevitt. His speciality was occupational medicine, and he was a fellow, member, and licentiate of the faculty of occupational medicine at the Royal College of Physicians of Ireland and held a higher diploma in occupational health from UCD. He indicated that a doctor in his field is also required to do 50 extra hours per year to stay abreast of professional developments in the area. He said that he was an examiner and a specialist trainer in the area of occupational medicine. He has been working with Dublin Bus since 2003. He also emphasised the importance of safety in Dublin Bus and said that they, the medical department, would be watching out for someone who might be prone to a sudden incapacity, such as heart attacks or faints. He said that he and Dr. Whelan collaborated closely and had offices only a few feet apart from each other. He said that among the various things they consider as to someone’s suitability as a bus driver include not only matters such as co-ordination and cognition, but also “tolerance” for the job on a long-term basis. He said that if someone has multiple psychosomatic signals and multiple absences this could be an indication that their tolerance is less than might be required. He was taken through the chronology relating to Ms. McKevitt, discussed below. His repeatedly expressed view was that his conclusion regarding Ms. McDevitt’s fitness to drive buses was a multi-factorial conclusion, based on the overall profile that she had presented, rather than in relation to one particular issue (that of blackout or “syncope”) alone.
5. Dr. Whelan, the Chief Medical Officer of the CIE Group, also gave evidence. His speciality was also occupational medicine and he had previously been Dean of occupational medicine of the Royal College of Physicians of Ireland from 2014-2016, and was chair of the working group which had devised the Road Safety Authority’s guidelines on medical fitness. He explained the role of the CMO with regard to the assessment of medical fitness of CIE employees, particularly those involved in the front-line duties of bus or training driving. Safety was, understandably, the paramount concern and in that regard, the issue of an individual’s “tolerance” was carefully monitored. This was the capacity of the individual to deal with the various aspects of the role; in bus driving, this would encompass not merely the physical function but the stressors involved in aspects such as dealing with the public, shift work, scheduling, coping with traffic and driving hazards such as cyclists and pedestrians. He indicated that the passing of Ms. McKevitt’s file to him (which will be seen from the chronology below) was more by way of the procurement of a second opinion, rather than a formal appeal. They did not have a formal appeal process. He did not think it was necessary to meet Ms. McKevitt in person because there was such a volume of contemporaneous medical information on her file.
6. Ms. McKevitt gave evidence as to her age and personal circumstances, and the reasons for her having applied for the Dublin Bus job. She had been working at home, raising her three children up to that point, but one of the children was a teenager daughter with cerebral palsy, and it was becoming difficult for her to manage her physically, so she and her husband decided that he would stay at home and she would go out to work. She was taken through the chronology, discussed below. Overall, her views were:
• that she had not been given sufficient notice that her retirement on grounds of ill-health was imminent when that point was reached;
• that the main reason for her retirement was the “syncope” issue, and that this was unfair because her own expert doctors had cleared her in relation to that particular problem;
• that the CMO had taken into account various medical conditions she had previously had which were not problematic any more;
• that they wrongly attributed the stress of the job to her problems whereas her main stressor, for a limited period only, was being separated from her daughter at home, having cared for her full-time up to that point
• that she had not been properly heard during the process, particularly in the course of the appeal process in which Dr. Whelan was involved.
Chronology
Probationary Period
7. Ms. McKevitt began working for CIE as a bus driver on the 23rd September, 2007. According to a log shown to the Court provided by the appellants, she took 3 days of sick leave during her initial probationary period, which lasted for some 14-15 months until she was employed permanently in January 2009.
2009-2012
8. Soon after she was made permanent, a pattern started of her being absent from work on sick leave. In 2009, she took 33 days sick leave/occupational injury; in 2010, she took 74 days; and in 2011, 33 days. Her medical complaints over this period included stress and anxiety, depression, pain in her right hand/thumb, irritable bowel syndrome and gastritis, and breathing difficulties and tightness in her chest. In January 2012, she had 12 sick days. In February 2012, she had 8 sick days. From February 2012 onwards, she was on permanent sick leave until her retirement in April 2014, a period of two years and two months.
9. In addition to seeing her own doctors and various specialists in relation to the above complaints, she also attended with Dr. Loftus in the CMO of CIE on numerous occasions, perhaps in the region of 15-20 times. The regime within CIE was that an employee was entitled to paid sick leave for 6 months; for 4 weeks at 100% pay, for 8 weeks at 70% pay, and for the remaining 14 weeks at 60% pay. While an employee is out sick, there is a line of communication between the employee, the CMO and the HR department, and the employee may be required to attend appointments with the CMO, as happened with Ms. McKevitt.
10. Dr. Loftus’ recollection was that a problem with Ms. McKevitt’s wrist was why she originally went out on sick leave in 2009. Her reports to him in that regard were that holding the steering wheel had caused pain in her wrist.
November 2011: Ms. McKevitt reports a blackout
11. In November, 2011 Ms. McKevitt suffered a blackout in her home and was referred to the Falls and Blackout Unit (hereinafter “the FABU”) in St. James’ Hospital. The first FABU report dated the 5th June, 2012 states that the appellant presented at her first appointment with symptoms of what was almost certainly a condition known as “vasovagal syncope”. It noted that she had reported to them at that time that “she had been getting syncope events once a year for the last 10 years” and that “it started in pregnancy 19 years ago”. Ms. McKevitt in her evidence denied that she had a syncope episode once a year in every 10 years but that she had “dizzy spells”.
12. The second report dated 23rd July confirmed a diagnosis of “vasovagal syncope type 1 with asystole and depression”. This diagnosis came after a test for syncope (or blackout), known as a “head up tilt test”, was performed upon her in July 2012, which positively confirmed syncope upon Ms. McKevitt losing consciousness for 10 seconds. The report went on to say that she had been advised that she should not drive and that she should inform the HR department in her workplace about her condition. She was advised to drink at least 2 litres of fluid in order to manage her condition. The appellant was also told that she would need a “reveal device” to be inserted. This device was required so as to correlate her syncope symptoms as they arose day to day in real time. It appears this device was physically inserted into her body in the weeks following this second appointment at the FABU.
13. In 2012, the plaintiff did not work at all, by reason of the advice given by the FABU. As matters turned out, she was in fact on permanent sick leave from February 2012 until her retirement in April 2014. She continued to see doctors about a variety of matters such as pain in her right hand, back pain, depression, irritable bowel syndrome, breathing difficulties/palpitations.
14. On the 1st of November, 2012, Dr. Loftus’ notes indicate that he received a phone call from Ms. McKevitt’s GP Dr. McKeogh, who explained that her depression had improved and that he believed that a return to work would be beneficial. Dr. Loftus notes indicate that he said he would request non-driving alternative duties and also that he was awaiting the reports from the FABU at this stage.
15. Ms. McKevitt then saw Dr. Loftus on the 7th November, 2012. The following day Dr. Loftus wrote a memo to the Head of the HR Department for Dublin Bus, Mr. Philip Donohue, asking him if there were any “non-driving, non-physical” duties available to assign Ms. McKevitt, and requesting that her sick leave be extended until the 7th February, 2013.
16. Ms. Kevitt did not work at all during the year 2013. A report from the FABU dated 21st January 2013 refers to her third appointment at the FABU. The reveal device, which had been inserted in November 2012 (two months before), was examined and it indicated that she had suffered no blackouts since its installation and that her surgical wound had healed. She was advised to drink more fluids. An appointment was set for one year’s time at FABU and she was told not to drive.
17. She continued to attend Dr. Loftus periodically to update him as to her medical situation and her various complaints. As of August 2013, his notes indicate that she was continuing to complain of back pain which was not relieved by steroid injection.
August 2013-December 2013
18. On the 22nd August, Dr. Loftus wrote to the FABU (specifically to Professor Rose Anne Kenny, director of the unit) and stated he had been sent the previous reports from the FABU, and understood that she was due back in the unit on 16th December next. He said: “If there is no foreseeable date for her return to work as a bus driver and in the absence of alternative duties she may be subject to ill health retirement recommendation to management”. Ms. McKevitt gave evidence that this was not discussed with her.
19. In a memo to Mr. Donohue dated the 23rd August, 2013 Dr. Loftus similarly stated that this may be a permanent restriction, though she was due to have another appointment on the 2nd October, 2013. He asked once again whether there were any non-physical non-driving type duties available and requested that her sick leave be extended until the date of her next appointment. Apparently, there were no non-physical non-driving duties available at any time during the relevant period.
20. On the 2nd October, 2013, Dr. Loftus informed Mr. Donohue that he had seen the Ms. McKevitt that day and that she remained unfit for duty as a driver, though he had not seen the relevant medical reports yet. His notes from the appointment indicate that her depression and anxiety had resolved though she still had “some hypochondria” but was not “clinically anxious or depressed” and was unfit to drive. He recommended an extension of sick leave until the appellant’s next appointment on the 23rd December, 2017. This was granted and the appellant was informed of this by Mr. Donohue by letter dated the 8th October, 2013.
21. On the 17th December, 2013, there was a report from the FABU which referred to Ms. McDevitt’s fourth appointment at the Unit. It was sent to both Dr. McKeogh and Dr. Loftus. In it, Dr. Helen O’Brien (Specialist Registrar to Professor Kenny) stated that “she reports that her last episode of syncope was 2 years ago after she had gotten out of bed quickly and usually occur on an annual basis”. It reported that she had two pre-syncopal episodes and was able to overcome them easily by lying or sitting down. She was advised of physical manoeuvres which could counter her condition, the importance of fluids and that she should not return to driving until the ongoing investigations into her condition were complete and her symptoms were well managed.
Appointment with Dr. Loftus on 23rd December 2013
22. On the 23rd December 2013, Dr. Loftus again saw Ms. McKevitt. His notes mention her syncope symptoms, a slight dizziness when she stood up, back pain, and an upset stomach. The notes also indicate that Dr. Loftus had formed an impression at this stage that her unfitness to drive was likely to be a permanent restriction and the term “so advised” is added beneath these words, indicating that he told Ms. McKevitt on this date. In her evidence in chief, Ms. McKevitt gave evidence that there was no discussion of retirement or permanent restrictions and she thought the next appointment would be just another 4-week review appointment. In cross-examination, she said she did not remember, that he probably mentioned it, but that she did not remember. I am satisfied that she was so advised (orally) by Dr. Loftus on that date.
23. According to Dr. Loftus’ notes she also complained of hip and back pain if she sat for 15-20 minutes and that she was unable to drive. Ms. McKevitt denied that she reported this to Dr. Loftus on that date.
24. Dr. Loftus sent a memo to Mr. Donohue on the same date, the 23rd December, 2013. Again, he was of the opinion that the appellant remained unfit for duty and asked for alternative duties and an extension of sick leave until the 30th January, 2014 (her next appointment). He also added that, at this stage, her restriction from driving may well be permanent.
25. Ms. McKevitt was sent a letter informing her of the extension of sick leave until her next appointment. Nothing was stated in this latter about the possibility of her being considered permanently unfit to drive.
26. By letter dated the 30th December, 2013, Mr. Donohue responded to Dr. Loftus and informed him that there were no “non-driving, non-physical type” duties available. Ms. McKevitt was again informed by Mr. Donohue of the extension of her sick leave the same day.
27. By letter dated the 3rd January, 2014, Dr. Loftus wrote to GP Sarah Beth Hooper, saying that she had recently attended him for occupational medical review. He noted that her depression had resolved and she was no longer on anti-depressants, but he said that “she continues to complain of light-headedness, dizziness and increased heart rate, orthostatic symptoms, GI upset, hip and back pain radiating to left leg”. He also said that “It is our practice to extend sick leave for a reasonable period to see if there is a reasonable prospect of her becoming fit again to return to work. As there is no foreseeable date for her safely to return to work, she is likely to be subject to an ill health retirement recommendation to management in the near future”.
Appointment with Dr. Loftus on the 30th January 2014
28. On the 30th January 2014, Dr. Loftus again saw Ms. McKevitt. His notes refer to the position that no alternative duties were available for the appellant, and noted that the patient was “disappointed at prospect” of ill health retirement. Dr. Loftus recorded his impression that she was permanently unfit and recommended an ill-health retirement for the 10th April, 2014. Ms. McKevitt in her evidence that she was told by him of his recommendation at this appointment, and that he mentioned not only the syncope, but also the history of depression and irritable bowel syndrome. The notes also record that she reported hip pain or spasm was ongoing. She denied in her evidence that she mentioned this.
29. A memo to Mr. Donohue was also sent on the same day in relation to Ms. McKevitt. It indicated that she had attended the medical department on that date, and that she was unfit to drive and that this was a permanent restriction. It was stated that since no alternative duties existed, the recommendation was to retire Ms. McKevitt on grounds of ill health from the 10th April, 2014. It was also recommended that there be an interview between Ms. McKevitt and management informing her of her entitlements under the welfare scheme and that her sick leave be extended until the April date.
30. By letter dated the 7th February, 2014, Ms. McKevitt was informed by Mr. Donohue of the CMO’s recommendation for retirement and her pension entitlements..
The final FABU report
31. By letter dated the 13th February, 2014, Dr. Helen O’Brien wrote to Dr. Loftus. She stated that she had discussed the case with Professor Kenny, who agreed with her diagnosis of vasovagal syncope. She said that since attending the clinic, Ms. McKevitt had not experienced any further episodes of syncope and had today reported that her last syncopal event was three years ago. She said that: “she has had episodes of presyncope” and that the reveal device had detected no abnormalities since insertion in November 2012. She said that she had discussed the case with Professor Kenny and they agreed that Ms. McKevitt was considered to fall into “category 3 of the DVLA guidelines” and so was of “low risk of recurrence therefore allowing her to drive”. The letter said that the FABU was “happy for Ms. McKevitt to return to driving both for personal use and commercial use”. The Court was told by Dr. Whelan in oral evidence that the DVLA guidelines are the UK guidelines for assessing fitness to drive. The letter concluded with the somewhat standard formula: “If you have any further concerns please feel free to contact us”.
32. It appears from an email dated 21st February, 2014 that Ms. McKevitt met with her Dublin Bus area manager, Ms. Rosemary Darker. The email outlines a request by Ms. McKevitt to have another appointment at the medical department, in light of the FABU telling her that she was fit to drive again.
Appointment with Dr. Loftus on 4th March, 2014
33. On the 4th March, Dr. Loftus saw Ms. McKevitt again. The plaintiff gave evidence that she was hopeful of being allowed back to work because of the FABU report, but he said that he remained of the opinion that the appellant was unfit to drive. She gave evidence that he told her that it was not simply because of the syncope, but because of her history of depression, irritable bowel syndrome and other matters. She was very upset at his decision.
34. Dr. Loftus’ notes of this meeting indicate that Ms. McKevitt was still experiencing symptoms of dizziness and had to lie down from time to time; and that she was suffering from hip pain, but said that this had never interfered with her duties as a driver. The notes finally record that Dr. Loftus had a long discussion with Mrs. McKevitt about the retirement recommendation and explained how the recommendation was made not only due to her syncope symptoms, but also because of “multi-system complaints” such as her depression also. Mrs. McKevitt accepted that but appears to have stated that the stress and depression came not from her work but from the challenges presented by her wheelchair-bound daughter. Dr. Loftus recorded his impression that Ms. McKevitt was “well now but not likely to be in a position to give regular + satisfactory service in future as RPDr – tolerance of symptoms likely to be an issue if were to return to work. No alt duties available”.
35. During the hearing before me, when asked about his view of Ms. McKevitt around this time, Dr. Loftus said that it was a complex case; that she did not suffer from one medical condition but rather from multiple conditions and had attended many specialists. He thought the whole pattern was of someone who, under pressure or stress, was not able to tolerate the demands of her situation. Even though the FABU said “low risk”, this was not “no risk”. He thought that she was showing a stressed personality which was coming through in the physical complaints. For example, her distress in relation to her thumb complaint seemed to be out of proportion to the actual problem, as compared with other people with severe arthritis who might be waiting for operations; but if a person is stressed, they tolerate things less well.
36. By Memo dated 5th March 2014, Dr. Loftus communicated to the Area Manager, North West, Phibsboro and Head of Human Resources at Dublin Bus stating that Ms. McKevitt had attended the medical department on the previous day, that the issues raised in the email had been noted, and that medical reports had been received. It then said: “Following assessment, Ms. McKevitt remains unfit for duty as a road passenger driver and this is a permanent restriction” and “As per my memo of the 30th January 2014, it is recommended that she be retired on grounds of ill health, with effect from Thursday, 10th April 2014”. A handwritten note dated 11th March, 2014 indicates that a telephone call was received from Helen Byrne inquiring if the CMO had received her letter dated 13 Feb 2014, to which the answer was yes.
Dr. Hooper’s report of 28tH March 2014
37. On the 2nd April 2014, Ms. McKevitt then sent a letter to the CMO on the 2nd April, 2014 stating that she was attaching “further medical documentation which was not available prior to this point”. She requested that the CMO reconsider the retirement decision as she wished to return to work. The attached documentation was a letter dated 28th March, 2014, from Ms. McKevitt’s GP, Dr. Sarah Beth Hooper of the Errigal Surgery. This arose out of a visit that Ms. McKevitt had made to Dr. Hooper after her discussion with Dr. Loftus on the 4th March. Dr. Hooper’s letter/report stated that “there have been several issues preventing her from work including syncope, depression and irritable bowel syndrome but she has recovered well and she is keen to return to work”. She said that she (the doctor herself) felt she was now fit to return to work. With regard to depression, she said that she initially complained of this in March 2012, and that she had been off all antidepressant medication since April 2013 and that she (the doctor) did not feel that she was currently depressed and therefore considered her fit to drive. She was still under active follow up for irritable bowel syndrome in St. James’s hospital but her symptoms were stable and under control and should not pose a difficult to driving. The letter continued that “she reports intermittent back pain and non-cardiac chest pain and attends occasionally with complaints of same but is not currently complaining of pain”. The letter concluded by saying that Ms. McKevitt was “keen to return to work” and that Dr. Hooper believed that she would benefit both physically and psychologically from returning to work.
38. On the 9th April 2014, Ms. McKevitt wrote to Mr. Donohue stating that she was appealing the decision of the CMO regarding her retirement.
39. On the 10th April 2014, Mr. Donohue wrote to Ms. McKevitt indicating that the CMO had recommended her retirement on health grounds effective from the 10th April 2014, and advising her of her financial entitlements.
40. On the 17th April, 2014, Mr. Donohue wrote to Ms. McKevitt stating that within Dublin Bus, under the CIE Welfare Scheme for Regular Staff, the decision to retire an employee on the grounds of ill health rested solely with the CMO and that Dublin Bus was obliged to accept that an employee should be retired on health grounds.
Dr. Whelan’s letter of 22nd May 2014
41. By letter dated the 22nd May, 2014 (apparently dictated on the 9th April, 2014, as appears on the face of the letter), Dr. Whelan wrote to Ms. McKevitt, acknowledging her letter and medical report. He said that he had reviewed her medical file and formed the opinion that the decision to find her permanently unfit for public service bus driving and a consequent recommendation of ill health retirement was correct.
42. By letter of the same date, 22nd May 2014 (also apparently dictated on 9 April 2014), Dr. Whelan wrote to the GP Dr. Hooper, referring to her own letter and the fact that Ms. McKevitt file had been passed onto him by way of an appeals process. He continued as follows:
“I have reviewed the file and note that she has an extensive range of both somatic and psychological symptoms across many domains including vasovagal syncope type 1, history of depression, chronic low back pain requiring attendance at the Pain clinic, symptomatic early osteoarthritis of her first right metacarpal phalangeal joint, Irritable Bowel Syndrome symptoms, positive helicobacter pylori symptoms, chest pain and weight loss.
The impact of these symptoms on her ability to attend work varies with the level of distress caused by such symptoms. As a consequence, Ms. McKevitt tolerance for onerous physical and psychological demands of Public Service Vehicle driving is markedly impaired and this was why she was permanently unfit and thus the reason for her retirement.”
43. Ms. McKevitt gave evidence that her doctor never said anything to her about the above letter.
44. Dr. Whelan in his evidence said that he did not think it was necessary to meet Ms. McKevitt in order to form an opinion as to the case, because there was so much contemporaneous medical evidence on her file. He said that their relationship to reports from treating doctors was that they needed those reports to receive those doctors’ diagnosis, investigations and proposed treatment; but that, armed with that information, it was their own role as occupational specialists to make a decision as to whether the individual was fit to return to driving duties. He said he had considered the final FABU report carefully, but it was his view that they had not sufficiently weighted her reported history of transient loss of consciousness, together with her history of various complaints, many of which could act as triggers for syncope. Also, while they were satisfied she had not had any episodes for a number of years, she had not been working during that period and so the major stressor of driving had been taken out of the picture, whether she appreciated that or not. Among the matters he took into account in reaching his conclusion was the risk of her becoming impaired while performing her duties, and the fact that even a very short period of loss of concentration can lead to serious consequences when driving around the streets of Dublin. This view was based upon what bus drivers tell them from their own experience; the challenges of driving made them “hypervigilant”. It was a unique job. He looked at the total range of her complaints and the 23 certificates submitted by her. The pattern was of a recurrent short-term sickness absence. This phenomenon was well documented in the literature; there is usually something behind it, and in this case, it was apparent that it was stress and distress.
45. In cross-examination, he was pressed on why he had, in effect, “disregarded” the view of the FABU and why he had not contacted them to discuss. He replied that the FABU had an investigative and treatment function, and none in relation to certification of professional drivers. It was his job to critically assess any report that came into him, and driving a bus was the most safety-critical position there was in Dublin Bus. He had no reason to contact the FABU; they had expressed their opinion and his job was to evaluate the opinion. It was put to him that the decision of the CMO would not have changed, no matter what they said, but he answered that this was not the case; for example, if they had identified a cardiac origin to the problem and decided to put in a pacemaker, there would then be a definite cause and an intervention which would reduce or remove the risk entirely. It would all depend on what they said.
46. After her retirement from Dublin Bus, Ms. McKevitt applied for sick benefit from social welfare, but was refused on the ground she was fit. She worked in various jobs, primarily shops or delicatessens, and these were part-time. She did not envisage that she would ever be able to secure a secure, full-time job like the one she had in Dublin Bus in the future. It was put to her in cross-examination that in one of her subsequent jobs, which she had for a year, she had an excellent attendance record, which was consistent with her being able to do a job which was less stressful, and she said she did not accept that bus driving was stressful at all, or more stressful than working in a delicatessen.
Legal aspects
47. Under s.6(4)(a) of the Unfair Dismissals Act, 1977, a dismissal is deemed not to be unfair if it results wholly or mainly from an employee’s capability to perform work of the kind which he was employed by the employer to do.
48. It appears from the written decisions that the EAT found in favour of Ms. McKevitt on the basis that there had been several breaches of fair procedures: (1) that a third independent medical opinion should have been obtained in circumstances where there was a conflict of evidence as between the FABU and the opinion of Dr. Loftus and Dr. Whelan; (2) that the appeal process was flawed because it was merely a review, and because Dr. Whelan was involved in it when he had been involved in the original recommendation; and (3) that the HR department had merely rubber-stamped the recommendation of the CMO, in ignorance of the facts relied upon to support the recommendations. The EAT awarded Ms. McKevitt €17,500.00
49. On appeal to the Circuit Court pursuant to s. 11 of the Unfair Dismissals (Amendment) Act, 1993, the court also found in favour of McKevitt. From Counsel’s note of the judgment, this appears to have been on one ground only, namely that Dr. Whelan did not re-examine, meet or hear from Ms. McKevitt. The judge reduced the award in favour of Ms. McKevitt to €10,000.00.
50. Under Ms. McKevitt’s signed contract of employment, the Chief Medical Officer must determine whether an employee is permitted to return to work following an illness, regardless of whether they have been certified fit by another medical practitioner.
51. Ms McKevitt’s legal team sought to rely on SI 146/2000-Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. I am not satisfied that this has any application to the matters which arose in this case. Section 3(3) says as follows:
“In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms.”
Section 4(1) provides as follows:
“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”
Section 10 sets out the penalties which may be imposed, ranging from oral warning to dismissal.
52. It seems to me entirely clear from these provisions that they are concerned with matters of an entirely different nature to the sickness of an employee, which in no sense could be described as a disciplinary matter. I think it would also be a strained and artificial interpretation of the term “grievance” as it used throughout the statutory instrument to interpret it as applying to an employee’s “grievance” at being retired on grounds of capability due to sickness. It seems to me that what the statutory instrument has in mind is a grievance by an employee about the conduct of another person at work, such as a fellow employee. Hence the need for clear procedures of the type set out, as there may be a need to investigate contested allegations of fact. Therefore, it seems to me that Ms. McKevitt is not entitled to rely on the procedures set out in s. 6 of the statutory instrument.
53. However, what is clearly relevant to the present case is the decision of the High Court (Lardner J.) in Bolger v. Showerings [1990] ELR 184, where it was held that in a case involving dismissal for incapacity, the onus is on the employer to show:
i. That it was the incapacity that was the reason for the dismissal
ii. The reason was substantial
iii. The employee received fair notice that the question of his dismissal for incapacity was being considered; and
iv. The employee was afforded an opportunity of being heard.
54. I note that in the Bolger case, the employee was unsuccessful in the High Court even though his medical condition was ultimately in fact corrected by surgery which took place after the dismissal decision, because he had been given notice and an opportunity to be heard (by sending in a letter from his GP) prior to that decision, and it was held that the decision not to await the outcome of the surgery before taking the decision on dismissal was not unreasonable, taking into account the history of absenteeism and the view expressed in the GP’s letter.
55. There can be no doubt in the present case but that the perceived incapacity of Ms. McKevitt was the only reason for her dismissal, and that the reason was a substantial one. Accordingly, the key issues in the case are whether she received adequate notice and whether she had a fair opportunity to be heard on whether or not she should be retired on grounds of incapacity. These were the two issues upon which counsel for Ms. McKevitt put forward the case on her behalf.
Decision
Notice
56. I have found, on the evidence before me, that Ms. McKevitt was personally informed on the 23rd December, 2013 by Dr. Loftus that he intended to recommend her retirement on ill-health grounds. She was again advised of this by him at her appointment of 30th January, 2014. There was letter from the HR department to this effect on the 7th February, 2014, and again on 10th April, 2014. While there was no document from HR in December or January stating in a formal manner what Dr. Loftus was telling her at her appointments, the reality of the situation is that she had been told face-to-face by Dr. Loftus from as early as December 2013 that her retirement was under consideration. It seems to me that what is important is whether notice was given in substance, not whether the form of it was written or formal.
57. I cannot see how it can be said, having regard to the facts outlined above as to all the events between December and April 2014, that she did not have fair notice of her intended dismissal for incapacity. This is particularly so where, given the lengthy absences on the part of Ms. McKevitt, it can hardly have come as a surprise in any event that the issue of retirement would come up after a certain point. I did not find her evidence credible when she continued to maintain that she was shocked and surprised when the issue came up.
Opportunity of being heard
58. Ms. McKevitt had numerous consultations with Dr. Loftus. Further, there were 23 specialist reports on her medical files. Dr. Loftus communicated with the FABU, sending a letter to the Unit on the 22nd August, 2013 outlining the lack of alternative duties and the possibility of a retirement on grounds of ill-health and with her GP, and sending Dr. Hooper a latter on the 3rd January, 2014 outlining her ongoing condition and the likelihood of her retirement at this stage. Ms. McKevitt’s manager in Phibsboro also contacted the HR department on her behalf which led to a further appointment with Dr. Loftus on the 4th March, 2014. In terms of medical reports, Dr. Loftus considered all of the FABU reports, including the final report dated 13th February, after which he had a further discussion with Ms. McKevitt at her appointment of the 4th March, 2014. Dr. Whelan then also examined the whole file, including those FABU reports, with the addition at that stage of the last of the medical reports that had come in, namely that of Dr. Hooper dated the 28th March, 2014. Both the FABU and Dr. Hooper had been advised that retirement was under consideration and they were under no illusions as to the context in which their opinions were being sought. In those circumstances, I cannot see how it could be said that Ms. McKevitt did not have an opportunity to put her case forward. Dr. Loftus obviously considered each of the reports as they came in; the mere fact that he reached the same conclusion on subsequent occasions does not mean that he had a closed mind in relation to the matter. Dr. Whelan reviewed the entirety of the reports. Again, considering the matter from the point of view of substance over form, it seems to me that there was an adequate opportunity for Ms. McKevitt to put forward all the medical reports she wished and for an alternative viewpoint to be heard.
59. Complaint was made that Dr. Whelan’s review was not a properly conducted appeal. This is premised on a view that Ms. McKevitt had some right of appeal from the decision of Dr. Loftus. If there is such a right, then I would agree that the appeal may well have been deficient. However, I do not see where any such right of appeal arises. None is conferred under the legislation, and no authority has been cited to me in respect of which such an appeal is considered to be necessary as a matter of constitutional right, whether under the rubric of a right to fair procedures or otherwise, in the circumstances. None is mentioned by Lardner J. in the Bolger case, although he sets out what he considers to be the necessary procedural requirements. I think it is more appropriate to consider the two-stage process (Dr. Loftus’ involvement, and Dr. Whelan’s subsequent review of the file) as a process involving a decision followed by a second opinion in relation to the decision, rather than a hearing and an appeal. The latter model is that which applies in a case of alleged misconduct where witnesses may be called and findings of fact made. This does not appear to me to be the appropriate model when the situation calls for expert medical assessment of an employee’s fitness.
60. Complaint was made on behalf of Ms. McKevitt that Dr. Loftus should have contacted the FABU again, or sought a third opinion, because there was “conflicting” medical evidence. I do not think that this was really a case of conflicting medical evidence. The evidence of Dr. Loftus was that the decision was taken on the basis of the multi-factorial nature of Ms. McDevitt’s health problems. The range of her problems has been seen above, ranging from back pain, to hand pain, to irritable bowel syndrome, anxiety and depression, and respiratory/chest complaints, over a 5-year period. The issue of syncope was only one matter, albeit, of course, one which would raise serious alarm bells with regard to the job of bus driving, where public safety is paramount and the risk of blackout, even if very low, must be carefully considered and factored into the equation. However, it seems to me that the CMO’s office was not so much disagreeing with the final FABU view, but rather weighing it differently in light of all the reports they had over the entire period and the reports made by Ms. McKevitt herself to Dr. Loftus.
61. Insofar as there was a suggestion that the decision was in effect made by the CMO and not the HR department, I cannot see that there was any flaw in the system used by Dublin Bus in that regard. The duty rests on the employer, Dublin Bus, to ensure that the dismissal was not unfair. In a case where a judgment call has to be made as to whether someone medical history renders them unfit for work, it seems to me sensible that the judgment call would be made by suitably qualified and experienced medical personnel. Again, it seems to me that this submission is based upon an attempted transplantation of the procedures that would be appropriate in investigating factual allegations of misconduct into a wholly different context.
62. In view of the foregoing, I will allow the appeal and vacate the order of the Circuit Court.
A Hospital v An Employee:
UDD 1745
Labour Court
26 October 2017
[2018] 29 E.L.R. 87
October 26, 2017
Subject
Appeal of Adjudication Officer Decision No(s) ADJ-00000739.
Background
2. The respondent and the complainant appealed the Decision of the Adjudication Officer to the Labour Court on 6 and 9 January 2017 respectively in accordance with s.8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 14 September 2017. The following is the court’s Determination.
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Determination
This is a joint appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977–2015 (the Acts) in a claim made by an employee against her former employer, a hospital, where she alleged that she was unfairly dismissed. By decision dated 29 November 2016, the Adjudication Officer held that the complaint was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence the employee will be referred to as “the complainant” and the hospital will be referred to as “the respondent”.
The complainant referred her case to the Workplace Relations Commission on 26 November 2015.
Background
The complainant was employed by the respondent as a social care worker from 17 April 2001. By letter dated 26 February 2015 the complainant was informed that she was dismissed from her employment following an investigation and disciplinary hearing under Stage 4 of the respondent’s disciplinary procedure. The complainant alleged that she was unfairly dismissed contrary to the terms of s.7 of the Acts. The respondent denied the complainant’s allegation and submitted that her employment was terminated following a comprehensive process and investigation into allegations made against the complainant.
The complainant was a qualified teacher prior to undertaking studies in social work between 1992-1994 in Wales. Her first post as a social worker was with Oxfordshire County Council, later she worked with Sperrin Lakeland Trust in Northern Ireland before taking up her post with the respondent. In 2006 she completed an MA, with her dissertation on “Cultural Competence within Social Work Assessments”.
Following complaints made by her line manager and two others on the 1 December 2006, an investigation was carried out, she was suspended with pay in July 2007 and remained suspended until she was dismissed in May 2015.
Outlined below is a brief chronology of events leading to the complainant’s dismissal.
Review of social work cases-2007
In 2007 Mr A, group general manager of the hospital asked Mr Waters, Principal Social Worker, St Joseph’s Hospital, Trim to conduct a review of the complainant’s social work cases. The complainant declined to participate in the review and instructed her solicitor to communicate with the respondent. This review concluded on 29 June 2007 that the complainant was not competent to undertake the duties to which she was assigned. However, in the absence of her involvement in the review process Mr Waters recommended that a further independent panel review process should take place and should include the *90 complainant’s participation. He also recommended that the complainant should be removed from any involvement in social work duties.
Practice review February 2007–July 2010
The above recommended independent panel review took place. The review was carried out by Colm Lehane, Director of Clara Learning Limited (Chairperson); Anne Marie Jones, Head Medical Social Worker, Mater Hospital/Children’s University Hospital, Temple Street, Dublin and Erna O’Connor, Lecturer in Social Work and Fieldwork Co-ordinator, School of Social Work and Social Policy, Trinity College, Dublin.
The panel reviewed approximately 60 of the complainant’s case records of her work carried out in the period from 2001 to 2007, ten of which were selected by the complainant. The aim was to review the professional social work practice competence of the complainant against specified competencies.
The panel gathered information from meeting the Acting Principal Social Workers, from documentation provided, supervision records supplied, a management report from the general group manager and meetings with the complainant. By report dated 9 July 2010 the panel concluded that the complainant’s practice did not demonstrate competence as reviewed against the competencies set out in the terms of reference. Her practice approach was not of the required standard for a professionally qualified social worker within a hospital setting. Her records demonstrate that she did not recognise clear and present danger and/or risk to vulnerable patients, which could have compromised the safety and well-being of patients. Her lack of core social work skills were such that they could not be addressed and resolved by short-term training and development.
Stage 4 Disciplinary Investigation – August 2010–September 2010
On 17 August 2010 the Group General Manager, Ms B, wrote to the complainant and informed her that having considered the Practice Review Report and having noted the conclusion that there were significant concerns regarding her professional social work practice competence she decided to commission a Stage 4 disciplinary investigation into her competence.
This investigation into the complainant’s professional practice was conducted by two investigators. The work commenced on 2 September 2013 and the report was finalised on 11 September 2014. The terms of reference included:
“To investigate the following allegations of serious misconduct in accordance with Stage 4 of the HSE’s disciplinary procedure …
[The complainant’s] practice competence is not of the required professional standard to deliver an effective and safe work service in a hospital setting”.
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This was conducted by Ms Maeve Drummey, professionally qualified social worker, guardian ad litem and independent social work consultant and by Ms Elizabeth Oakes, professionally qualified social worker, guardian ad litem and independent social work consultant. The investigation began in 2013. The investigators did not have access to the practice review report. The complainant participated in part of the process and then on the advice of her solicitor, she declined to attend for further interview on 23 May 2014.
The investigation team issued its report (Drummey/Oakes Report) on 11 September 2014 and concluded that the complainant was unable to demonstrate the required competencies as a social worker working in a medical setting; she was unwilling to accept that she had any responsibilities in these matters; she was unable to relate to her colleagues and managers in a positive and productive manner; and the complainant’s practice competence was not of the required professional standard to deliver an effective and safe social work service in a hospital setting.
The complainant responded to the Report.
Stage 4 disciplinary hearing – January 2015
A disciplinary hearing was held on 30 January 2015. The complainant was accompanied by her sister. It was chaired by Ms B, who at this point was the chief operations officer of another hospital group. Ms B was the decision-maker in this process. By letter dated 26 February 2015 Ms B informed the complainant that she was being summarily dismissed. The dismissal took effect from 30 January 2015. She was given the right to appeal the decision.
Appeal of decision to dismiss – April 2015
The complainant decided to appeal the respondent’s decision to dismiss her. The appeal was heard by the HSE Dismissals Appeals Committee on 13 and 27 April 2015. The result of that appeal was made known to the complainant on 28 May 2015 when she was told that her appeal was unsuccessful and that she would be removed from the payroll on that date.
Ad misericordium appeal – July 2015
The complainant then submitted an ad misericordium appeal as provided for under the respondent’s disciplinary procedure. The appeal was heard by Mr Tony O’Brien, director general, HSE. On 15 July 2015 she received notice that her ad misericordium appeal was unsuccessful.
Preliminary issue
Ms Máiréad McKenna, BL, instructed Byrne Wallace Solicitors, on behalf of the respondent raised a preliminary issue. Without prejudice to its position on the substantive case, Ms McKenna raised an objection to the court’s jurisdiction to *92 hear and determine this appeal on the basis that the complainant had not lodged her complaint within the time-limit prescribed by s.8 of the Acts.
A court hearing was held on 23 May 2017 to hear from both parties on the preliminary issue.
By Determination UUD1731 issued on 16 June 2017, the court found that the complainant had lodged her complaint within the time-limit prescribed by s.8 of the Acts. Therefore the court dismissed the respondent’s preliminary objection and proceeded to hear the substantive case on 14 September 2017.
Summary of the respondent’s case
On the substantive case, Ms McKenna also provided an extensive written submission to the court and referred to various authorities in support of the respondent’s position. She submitted that there were substantial grounds justifying the termination of the complainant’s employment. She said that the complainant’s employment was terminated following a protracted investigation/ disciplinary and appeal process which afforded her all of her rights and entitlements.
Ms McKenna stated that the disciplinary process which led to the complainant’s dismissal commenced on the 17 August 2010, when the complainant was informed by letter of that date that as a result of serious concerns in relation to her competency, an investigation would be carried out under Stage 4 of the HSE disciplinary procedure into her social work practice competency. The letter was written by Ms B, the then group general manager of the respondent’s hospital group. This decision was made in light of serious conclusions contained in a written report that had been produced by an independent expert practice review group, chaired by Mr Lehane, who had been appointed to carry out a review of the complainant’s social work competence on foot of concerns about her work performance. The conclusions were as follows:
“We conclude that [the complainant’s] practice does not demonstrate competence when reviewed against the competencies set out in the Terms of Reference.
The practice approach of [the complainant], as evidenced through the case records reviewed, is not of the required standard for a professionally qualified social worker within a hospital setting.
In some case situations the evidence of practice in the case records did not recognise clear and present danger and/or risk to vulnerable patients (children, young people and adults).
We are concerned that the practice approach, as evidenced within the case recordings, failed to respond to opportunities to address risk and in some situations danger. This failure could have compromised the safety and wellbeing of patients.
In our judgement, the extent of the concerns highlighted in this review, particularly the lack of evidence of core social work skill (in assessment, risk analysis and management, counselling and provision of psychosocial interventions), *93 are such that they cannot be addressed and resolved by short-term training and development input.”
The complainant, through her solicitors, raised a number of objections in relation to the Stage 4 investigation which resulted in a significant delay in commencing the investigation. A period of almost two years was taken up seeking to address various issues raised, these included:
(a) the terms of reference for the investigation;
(b) the identity of the investigators;
(c) the nature of the material that the investigators should have sight of;
(d) the nature of the materials the complainant should have sight of; and
(e) the nature and detail of the charges being levied against her.
Ultimately the respondent made a number of significant concessions in an attempt to start the investigation. It agreed to stand down one of the investigators and to replace him with someone acceptable to the complainant. At the complainant’s insistence, it was agreed that the investigators would not be provided with the Practice Review Report and accordingly there could be no issue of any specific allegation being levied against her.
Given that the Practice Review Report was not being provided, it was proposed that the investigation would be into the following allegation:
“that [the complainant’s] practice competence is not of the required standard to deliver an effective and safe social work service in a hospital setting”.
The respondent agreed that the complainant could nominate a number of case records to be reviewed by the investigators with a further number to be randomly selected by the investigation team. The investigators appointed were external and independent with extensive experience practicing social work and had experience carrying out reviews and investigations. The two investigators appointed were Ms Maeve Drummey and Ms Elizabeth Oakes.
Ms Mc Kenna said that when it was clear that the investigation was going to commence, the complainant made a complaint to the Rights Commissioner Service (as it was then known) pursuant to the Industrial Relations Acts and asked the respondent to stay the investigation in the interim. Before the Rights Commissioner, the complainant raised issues regarding the previous processes/ reviews/delay/her suspension/lack of particulars of the allegation/relevant standard/process was not a staged process, etc.). The Rights Commissioner did not find in the complainant’s favour. The complainant appealed to the Labour Court. The Labour Court did not find in the complainant’s favour. Ms Mc Kenna stated that both concluded that the complainant should continue with the investigation and let the process conclude.
*94
In June 2014 the complainant then instituted proceedings before the High Court seeking to restrain the investigation. This application was heard by Gilligan J. on 22 July 2014. Again the complainant raised the same issues. The court refused to restrain the investigation or to grant the relief sought. Ultimately the complainant participated in the Stage 4 process and in doing so she had the benefit of extensive legal advice from her solicitors.
In July 2014, a draft report was furnished by the investigators to the complainant and, having had the benefit of extensive submissions furnished by her, the investigators produced a final report on the 11 September 2014. The investigators concluded that the complainant’s practice competence was not of the required professional standard to deliver an effective and safe social work service in a hospital setting. In so doing they took into account the complainant’s submissions.
Ms McKenna gave details of the disciplinary hearing which followed the completion of the Stage 4 investigation. She said that on foot of the report, a disciplinary hearing was convened by Ms B to consider whether a sanction was appropriate and if so, what that sanction should be. The complainant was afforded the right to legal representation and chose to bring her sister, a doctor, to this hearing. The hearing took place on 30 January 2015. Ms B communicated her decision to dismiss the complainant by letter dated 26 February 2015.
The complainant appealed that decision and an appeal hearing was held over two days by an independent external appeal panel comprising Mr John Doherty who has extensive experience in employment matters, acting as Chair; Mr Brian Kirwan, HR Director HSE and Mr Stephen O’Neill, Assistant General Secretary IMPACT. The complainant furnished extensive written submissions and made extensive oral submissions to the appeal panel. The appeal panel upheld the decision to dismiss. The complainant followed this with an ad misericordium appeal to Mr Tony O’Brien, Director General, HSE. He upheld the decision to dismiss.
Relevancy of matters before Stage 4 process
Counsel for the respondent referred to the complainant’s reliance on the events which arose in December 2006 when she says she became aware, through the group manager of the hospital, that three complaints were made against her, one of which related to her social work practice. Ms McKenna stated that this position advanced by the complainant must be contrasted with the position she adopted (with the benefit of legal advice) in the years following these events where the complainant spent two years engaging in legal correspondence to ensure that the general background to the concerns regarding her were not communicated to Ms Drummey and Ms Oakes who were appointed to conduct the investigation into her competency levels.
Therefore, Ms McKenna submitted that these matters articulated by the *95 complainant (some of which date back to the commencement of her employment and the earlier processes embarked on by the respondent into her practice) are not relevant in respect of the decision to terminate her employment. They were not matters which were before either the investigators or the decision-maker in the Stage 4 process that resulted in the complainant’s dismissal.
Witness testimony – Ms B
Ms B gave evidence on behalf of the respondent. She is currently Chief Executive Officer of another hospital. Prior to that appointment she was the respondent’s group general manager with the respondent’s hospital group. Ms B told the court that she was the decision-maker who made the decision to terminate the complainant’s employment.
Ms B said that when she took over the role as group general manager in May 2010 she proceeded to examine all ongoing staff issues. By letter dated 17 August 2010 she wrote to the complainant referring to the review of her work which had been commissioned in 2007, and stated that the findings of that report were of serious concern to her in that they appeared to indicate that she may not be competent to practice as a professional social worker. Ms B told the court that on that basis she made the decision to commission a Stage 4 disciplinary investigation into her competence.
Ms B said that following this decision, there was a long process of correspondence over a three-year period between the complainant’s solicitors and the respondent’s solicitors concerning the complainant’s objections to the investigating team and its investigative process. She said that as a result the respondent made a number of concessions to the complainant, including agreeing not to supply the investigation team with a copy of the Practice Review Report; asking one of the investigators to step down from the team; details of the allegations against the complainant were set out on 31 May 2011, yet they were constantly being sought by the complainant’s solicitors; and agreement on the social work cases to be included in the investigation. Further delays were caused by High Court proceedings which were initiated by the complainant seeking, inter alia, a stay on the investigation.
Ms B said that by the time these issues were concluded it was March 2014. At that point the two investigators, Ms Drummey and Ms Oakes commenced their investigation.
Ms B said that the first time she met the complainant was at the disciplinary hearing which she called to discuss the outcome of the Drummey/Oakes report. She said that as the report found that there were serious concerns around the complainant’s professional practice and her ability to work as a social worker in a hospital setting, she made the decision to hold a Stage 4 Disciplinary Hearing. She said that as general manager she had a duty to the hospital, patients and staff to hear what the complainant had to say to these findings. In particular, Ms B said *96 that she was anxious to hear the complainant’s responses, to see was she aware of the problems identified by the investigators and whether she was willing to undertake training, etc., to rectify the problems discovered. However, she found that the complainant had no insight into the problems with her work, there was no willingness to see any fault in her work, and she simply blamed the system.
Ms B said that following the hearing she took some time to consider her options, however, as the complainant was unwilling to accept that there were any problems with her work, she was of the opinion that there was no safe way back to work for the complainant and therefore made the decision to dismiss her.
The witness was asked about the requirement on the complainant to keep notes/records of her work. Ms B replied that it was an absolute requirement for all staff in the hospital to keep records of their work, including the complainant.
She said that in response to the complainant saying that there were no incidents or adverse outcomes for any patient arising from her practice, Ms B said that she tried to explore what the complainant meant by this comment and the complainant’s response was that risk can be an emotive thing. Ms B stated that the complainant was not being investigated for causing harm to patients but to asses her competence as a social worker. She said that to ensure it was a balanced report, the complainant had, with the assistance of her legal advisor, an input into setting the terms of reference.
Under cross-examination, the witness was asked why the complainant was not made aware of the allegation made against her until 22 March 2013. Ms B responded that the allegations against the complainant related to her practice competence not being of the required professional standard to deliver an effective and safe social work service in a hospital setting and that she had been informed of this allegation on 17 August 2010. Ms B was asked why the decision to dismiss was not vested in an external person, as provided for in the disciplinary procedures. The witness said that in accordance with the procedures, the National Director had delegated those powers to her and that the complainant was written to by letter dated 22 January 2015 confirming this position.
The witness was questioned as to the reasons why the complainant’s input was not included in the Drummey/Oakes report. Ms B disputed this assertion and stated that comments on the report made by the complainant had been taken into account by the investigators and included as an appendix to the report. She was asked a question on what aspect of the complainant’s work practice did the complainant not have insights to. Ms B responded that every time the complainant was asked whether she accepted blame for the problems discovered in her work practice, she was unwilling to accept that she had any responsibility. Ms B said that the complainant had refused to engage in a mentoring process. On the basis of the foregoing, Ms B said that she came to the conclusion that there were serious concerns around the complainant’s professional practice, as found in the Drummey/Oakes report.
*97
When questioned by the court on the possible options Ms B considered before deciding to dismiss the complainant, the witness said that she did consider issuing a final written warning, a supervised return to work and/or dismissal. She said that having considered the options she decided against a return to work as the complainant had not accepted any responsibility for her shortcomings; difficulties with her working with colleagues; her unwillingness to undertake any form of retraining/mentoring and due to consequential safety concerns if she returned to work.
Witness testimony – Mr John Doherty
Mr John Doherty was nominated by the respondent to chair the disciplinary appeals committee under the disciplinary policy. He chaired the complainant’s appeal of her dismissal hearing. It was put to the witness that the complainant accused him of not approaching the appeal with an open mind. Mr Doherty disputed this and said such a comment was unjustified. He explained that he had chaired the hearing along with the respondent’s HR Director and an assistant general secretary of IMPACT. The hearing was held over two days and a decision was made by the Appeals Committee at a meeting which was held subsequently where the case was fully considered.
Mr Doherty was asked whether the complainant had at any point accepted any responsibility, or with appropriate training, that she could be brought up to an acceptable competency level. He said that she had not.
Summary of the complainant’s case
The complainant provided an extensive written submission to the court and referred to various authorities in support of her position. She was unrepresented at the hearing, and told the court that she had an unblemished career as both a teacher and a social worker until a complaint was made against her by her line manager to the group manager in the hospital on 1 December 2006. She was suspended with pay from July 2007 and remained suspended until her dismissal in May 2015.
The complainant said that there had been no incident or adverse outcome for any patient arising from her practice. She submitted that problems with her work were inferred on the bases of her social work records alone. Furthermore, there was no evidence that any of the four different supervisors she had during her time in the hospital had a concern about her competence or record-keeping.
In very extensive detail, the complainant outlined her complaint before the court. In essence she claimed that her dismissal was unfair because the disciplinary procedures were unfair from the start. She alleged that no allegations were established against her; no evidence was provided to her to support any allegation; her voice/input was absent from all the reports that were written which led to her suspension and eventual dismissal.
*98
First review
On 1 December 2006 the complainant said that she was advised that the hospital’s General Manager was in receipt of three complaints against her two by her line manager and one by a colleague. A review of the complaints commenced on that date and was completed by the middle of January 2007. She said that she was not informed of the outcome of that review.
One of the complaints made on 1 December 2006 related to her social work practice and was based on three of her cases. All of these cases had been supervised at the time by her line manager. She said that she had received no direction to do anything differently in her practice arising from these cases. The other two complaints related to her conduct, viz. (i) she had been uncooperative during a period when there had been a shortage of staff; and (ii) leaving the department without notifying the secretary, both of which she denied.
Second review
In February 2007 the complainant said that she was informed by way of an anonymous letter that there was to be a second review of her social work practice. The complainant contended that throughout all the correspondence from her employer since the 1 December 2006, the respondent had failed to state what the allegations against her were and had failed to provide her with supporting evidence.
She said that her input was missing from the subsequent report. The investigator inferred problems on the basis of her social work records alone, yet there was no requirement to keep records in her department at the time. He failed to look at secondary sources to confirm problems, i.e. her supervision records.
Third review
A third review commenced in July 2007. It took three years to complete. The complainant contended that there were no allegations against her contained in the terms of reference. This report recommended her suspension from work and recommended a further review as she had not participated in the review.
Fourth process/Stage 4 of the disciplinary procedure
This was invoked in August 2010 and took five years to bring it to conclusion.
The complainant stated that by letter dated 22 March 2013 the respondent formulated an allegation against her for the first time. This was almost six years after her suspension from work and almost three years since invoking Stage 4 of the disciplinary process. The complainant contended that the respondent provided no evidence to support the allegations made against her.
By a further letter dated 22 April 2013 the complainant stated that the respondent could not provide her with the particulars of the allegations made *99 against her because she had requested that the 2010 report be withheld from the Stage 4 investigators.
The complainant referred to the respondent’s disciplinary procedure which allows it to suspend an employee from work, without invoking Stages 1, 2, and 3, in the context of “serious misconduct” for the purpose of carrying out an investigation. However, she contended that such action is reserved for only the most exceptional circumstances. Therefore she questioned what exceptional circumstances arose in her practice to warrant suspending her in July 2007 if an allegation against her was not formulated by the respondent until March 2013.
In summary the complainant claimed that the respondent failed to comply with its disciplinary procedures. She said that the terms of reference for the reviews/ investigations contained no allegation against her. In respect of the second and third reviews no information was provided in relation to the procedure being followed or the possible outcome of the reviews. None of the investigators of the second, third or fourth reviews/investigations considered her supervision records. They failed to enquire as to what the policy was on record-keeping. Nor did they consider the standard of record-keeping in the department, generally, as a benchmark against which to assess her work.
The First Review produced no report. She said that she responded to all the reports but that none of her input was included in the final reports, and in the case of the Stage 4 investigation, her input was misrepresented.
She contended that the respondent had failed to act reasonably throughout, had denied her the benefit of its disciplinary procedures and had suspended her in a procedural vacuum.
Witness testimony – the complainant
As the complainant was unrepresented at the hearing before the court, the court explained to her that her oral and written submissions to the court could be regarded as her examination in chief upon which she would be cross-examined.
In cross-examination, she was asked if Ms Drummey and/or Ms Oakes were colleagues of hers. She said they were not and while she accepted that they were fully qualified social workers she questioned their professionalism as she was not satisfied with their report. She acknowledged that she had agreed the terms of reference for the investigation and that the report had investigated 10 of her chosen case files and 30 case files chosen by the investigators.
She stated that her supervision notes were not reviewed as part of the process. However, it was pointed out to her that the Drummey/Oakes investigation report noted that her supervisor’s records made specific comments in relation to the complainant’s shortcomings. In response the complainant questioned the alleged shortcomings and said that no issues had been raised with her and she referred to missing records in the hospital.
The complainant was asked about references she made to the investigators *100 that she had asserted that her work was of a higher standard than that of her colleagues in the social work department. She replied that it would need to be looked at in comparison to others in the social work department. When questioned about the report’s findings that she blamed others for her shortcomings, that there was considerable difficulty in her relationships with her social work colleagues, line managers, administration staff and medical staff. She suggested that the investigators were making this up. She was critical of the investigators for failing to incorporate her views in the report, for misrepresenting what she said and for failing to investigate all other social workers in the department also.
In 2013 the complainant referred a case to the Workplace Relations Commission and on appeal to the Labour Court under the Industrial Relations Acts to prevent the third investigation from proceeding. The Labour Court recommended that the investigation should proceed. In 2014 she sought an injunction from the High Court to restrain the Drummey/Oakes investigation; however, as her legal team came off record before the hearing she did not proceed with the matter. The complainant said that she was pleased with the outcome of the Labour Court hearing.
When questioned about the first review of her work which was carried out by Mr Waters, she said that he had misrepresented her work. Similarly when questioned about the second review carried out by Mr Lehane, she said that he had misrepresented her. She said that she has an unblemished career, there was no record of any problems with her work, her work was supervised, and her good work was not acknowledged in the reviews/reports.
It was put to the witness that the delays encountered regarding the commencement of the Stage 4 process were caused by obstacles being put in the way by her solicitor and that in order to appease her the respondent had made a number of concession to her through her solicitor however, no concessions were made on her part. She did not agree.
The witness was asked about the disciplinary hearing and whether it occurred to her to say that she wanted to hold on to her job and that she would do whatever it took to retain it. She accepted that she had not done so on the basis that there was no problem with her work, her communication skills, her team working relations, etc. She said that she was highly regarded as a social worker both inside and outside the hospital. If there was a problem with her work then she needed to be told the specifics, she said that she had had four managers and it was their responsibility to direct her before a complaint was brought to management.
It was pointed out to her that the Drummey/Oakes report included a number of pages reviewing her supervisor’s records on her work practice which highlighted shortcomings in her work and that she was aware of the issues raised. The complainant disputed the evidence.
In answer to questions from the court the complainant said that she did not accept any of the findings of the reviews/reports which found that she was unable *101 to demonstrate the required competencies necessary for a social worker working in a medical setting. When faced with the prospect of dismissal she said that she did not accept that she did anything wrong and/or needed any assistance/direction in her work. She said during this long process she could not understand what was happening. When put to her that there were numerous allegations being put to her she replied that it was just a broad brush approach and that there are 80 skills in social work and none had been specifically mentioned to her as being a problem.
The complainant stated that all findings made in the reviews/reports conducted into her work were fabricated, untrue and misrepresented her. She said that this was down to collegiality.
Legal argument
Ms McKenna submitted that the role of the court is to assess whether, objectively viewed, the respondent’s decision to dismiss was within the band of reasonable responses. This test, the “band of reasonable responses” test can only be fulfilled if the court confines itself to an assessment of the information the respondent had in its possession at the time the decision was taken. This test was relied upon by the Court of Appeal for England and Wales in Foley v Post Office[2000] I.C.R.1283. As stated by Mummery L.J. (at p.1295):
“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer’s decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”
Ms McKenna also relied upon the decision of the Court of Appeal for England and Wales in Anglian Home Improvements Limited v Kelly[2005] I.C.R. 242 where again Mummery L.J. held:
“The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift[1981] I.R.L.R. 91, 93, para.11 cited by Mr Laddie. The test laid down there was:
‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there *102 is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.’
Years later, the same test was confirmed by this court in Foley v Post Office[2000] I.C.R. 1283.”
The law
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
“6.—(1) 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.
(4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”
Findings of the Court
The court had the benefit of substantial written and oral submissions in this case.
The respondent submitted to the court that the complainant’s work practice was below the standard required of the hospital and consequently was regarded as of such a very serious nature as to be deemed gross misconduct under Stage 4 of its disciplinary procedures, as outlined in its letter to the complainant’s solicitor dated 26 January 2011. It consequently proceeded to carry out an investigation under Stage 4 of its disciplinary procedure into social work practice competency to determine if her work met the required standard.
The Drummey/Oakes investigation into the complainant’s professional practice’s terms of reference included:
“To investigate the following allegations of serious misconduct in accordance with Stage 4 of the HSE’s Disciplinary Procedure …
[The complainant’s] practice competence is not of the required professional standard to deliver an effective and safe work service in a hospital setting”.
*103
The court must decide not whether the complainant was competent to carry out her role as social worker but to establish whether or not the respondent was reasonable in that belief and were the grounds for this belief reasonable. Therefore the court must examine the information the respondent had in its possession at the time the decision was taken to dismiss the complainant.
It is clear to the court that since 2006 there were significant concerns raised by the complainant’s colleagues and superiors regarding the complainant’s professional social work practice competency. These were investigated however as the complainant refused to participate in the process, no disciplinary action could be taken against the complainant. Had the complainant participated in the review and engaged in remedial action at this early stage less serious action may have been averted and an improvement in her work may have been forthcoming.
However, as the complainant did not engage with the respondent’s review process prior to the Stage 4 disciplinary process, the court is of the view that it is reasonable to examine the events which occurred since that time. Accordingly, in coming to a conclusion in this case, the court has examined events that occurred since 17 August 2010 when the disciplinary process which led to the complainant’s dismissal commenced.
The court accepts that due to the seriousness of the allegations made concerning the complainant’s work practice competency and her refusal to engage with the process, it was reasonable of the respondent to initiate a Stage 4 disciplinary procedure investigation into her fitness to practice. It is clear that the complainant was aware since 2006 that there were concerns regarding her work practice and that her competency as a social worker was being called into question. It is equally clear to the court that at no stage, even before the court, has the complainant accepted responsibility for the serious allegations made against her work practice competency and its implications for the respondent. When questioned about the allegations which were put to her under the various investigations carried out, the complainant told the court that these findings were all fabricated, that she was misrepresented in the findings and that her work was of a very high standard.
The court is of the view that to be suspended for a period of seven years is most unsatisfactory and from that perspective, the respondent did not handle the situation in an efficient manner. The court understands that a substantial element of the delay was due to the complainant’s refusal to participate in earlier reviews of her work. This coupled with actions been taken by the complainant to the High Court, to the WRC and to the Labour Court operated to accentuate those delays. Secondly, excessive delays arose due to the complainant’s constant objections to aspects of the investigation which resulted in substantial correspondence between solicitors for both sides. These related to the investigators’ terms of reference/ the chosen investigators/the methodology used in the investigation. While it is clear that the respondent made strenuous efforts to accommodate the complainant *104 and made a number of concessions to her in that regard, the court is of the view that when difficulties with her work practice were observed at the outset, they should have dealt with in a more expeditious manner.
The respondent submitted that the complainant’s dismissal arose out of the findings of the independent investigation which found that she was unable to demonstrate the required competencies as a social worker to deliver an effective and safe social work service in a hospital setting. Further, it found that the complainant was clearly unwilling to accept that she had any responsibility in these matters, which impacted on her ability to practice safely and any supportive remedial intervention by her managers to address the identified problems was likely to have limited success. It found that she was unable to relate to her colleagues and managers in a positive and productive manner. It also found that there were serious concerns around her professional practice, lack of insight and ability to work in a multi-disciplinary team. It concluded that by her lack of record-keeping and understanding around the need to use supervision to inform and improve her professional practice, there was a potential serious risk to vulnerable patients in an acute medical setting. In that regard the court heard evidence from Ms B, who took the decision to dismiss the complainant based on the findings in the report and her assessment of the complainant at the disciplinary hearing.
Based on the submissions made, the evidence given and the documents furnished, including the investigators findings and report, the court is satisfied that an in-depth investigation into the complainant’s work performance was conducted without pre-judgment or bias which yielded serious concerns for the respondent, which it was compelled to act upon. The court is satisfied that having considered less forms of disciplinary action, due to the complainant’s refusal to accept any shortcomings in her work and her refusal to engage in any form of retraining or mentoring, the respondent had no alternative but to dismiss her. Having assessed the respondent’s disciplinary actions and the complainant’s reactions to the investigators findings, the court is satisfied that the decision to dismiss was reasonable in all the circumstances.
The court is therefore satisfied that there were substantial grounds justifying the dismissal of the complainant from her employment and that, accordingly, the dismissal was not unfair. The complainant’s complaint of unfair dismissal therefore fails.
Determination
The complainant was not unfairly dismissed and the complaint fails. Therefore, the decision of the Adjudication Officer is upheld.
The court so determines.
David McCormack v Ashford Castle Hotel Limited
[2021 No. 76 MCA]
High Court [Approved]
24 February 2022
unreported
[2022] IEHC 188
Mr. Justice Max Barrett
February 24, 2022
JUDGMENT
SUMMARY
This is an unsuccessful appeal against a decision of the Labour Court which upheld a decision of the Workplace Relations Commission that Mr McCormack was fairly dismissed from employment on the basis that he was incapable of carrying out the work that he was employed to do because of ill-health.
1. Mr McCormack commenced employment with Ashford Castle in 2003, becoming a concierge in 2011. Unfortunately, on 4th October 2017, Mr McCormack had to be dismissed from his employment on the grounds that he was incapable of carrying out his work because of continuing ill-health. By the date of his dismissal, Mr McCormack had been absent from work since 5th November, 2014, a period of almost three years. A summary chronology follows:
5th Nov. 2014.
Mr McCormack absents himself from work on grounds of ill-health. (By the date of his dismissal of 4th October 2017, he continued to remain absent from work).
Feb-May 2015.
Mr McCormack’s solicitor indicates that Mr McCormack wishes to raise the Ashford Castle grievance procedure.
16th Sept. 2015.
Mr McCormack requests formal meeting over alleged mistreatment and harassment.
12th Oct. 2015.
Meeting between parties to consider Mr McCormack’s complaints.
22nd Oct. 2015.
Outcome of meeting issues. Mr McCormack indicates intention to appeal but does not do so.
Early-2016.
Exchange of correspondence regarding Mr McCormack’s accommodation arrangements.
2nd Sept. 2016.
Mr McCormack alleges bullying against Ashford Castle staff member.
21st Nov. 2016.
Mr McCormack writes to Ashford Castle seeking meeting re. his grievances.
7th Dec.2016.
Meeting between parties to consider grievances.
10th Jan. 2017.
Ashford Castle issues letter re. the 48 grievances raised and indicates timeline for appeal. Thereafter, Mr McCormack commences appeal but does not attend appeal hearing.
Early-August 2017.
Ashford Castle writes to Mr McCormack re. his position as a staff member and his possible return to work.
14th Sept. 2017.
Ashford Castle again writes seeking suggestions re. Mr McCormack’s return to work. Thereafter, Mr McCormack makes no suggestions.
4th Oct. 2017.
Mr McCormack dismissed but told of right to appeal decision to dismiss. Thereafter, he is invited to attend an appeal hearing but does not. Instead he later makes a complaint of unfair dismissal to the Workplace Relations Commission.
27th February 2020.
Adjudication Officer holds complaint of unfair dismissal not well-founded. That decision was appealed to the Labour Court.
17th February 2021,
Labour Court dismissed the appeal. Thereafter an appeal is lodged with this Court.
2. At the hearings before the High Court, Mr McCormack was self-represented. Ashford Castle was represented and provided notably helpful affidavit evidence from Mr Ronnie Lawless, a retired IBEC employee relations executive who represented Ashford Castle in the proceedings before the Labour Court.
3. The role of this Court in the within form of appeal is perhaps most clearly identified in ESB v. Minister for Social Community and Family Affairs[2006] IEHC 59 and the court has proceeded in accordance with same.
4. Mr McCormack was consistently polite and respectful towards both the court and counsel for Ashford Castle in advancing his case and the court is grateful to him for that; not everybody comports themselves so. However, the court respectfully does not see that Mr McCormack has ever identified a point of law on which his appeal could succeed. In truth, it was with some difficulty that some of the points treated with hereafter could be gleaned from Mr McCormack’s documentation and/or fully understood. At the hearing before this Court, Mr McCormack’s sole contribution, after repeatedly questioning me as to whether I have ever stayed at Ashford Castle Hotel – I have not – suggested that he had some material that Ashford Castle would find challenging were it produced before the court. He also claimed that Ashford Castle would not welcome any adverse publicity that might follow on the issuance of the within judgment. The material referred to by Mr McCormack was not produced, nor was its substance described, and counsel for Ashford Castle indicated that her client, far from being embarrassed as to how it has proceeded, is satisfied that it has proceeded correctly and properly vis-à-vis Mr McCormack (and the court sees nothing to suggest that it has not). In a bid to be as fair as possible, the court has gone through the pleadings/evidence and seeks hereafter to deal with the points that Mr McCormack appears/sought to have raised in as comprehensive a manner as possible, but this has not been an easy task.
The Medical Evidence Point
5. As the court understands Mr McCormack’s contentions in this regard, he appears to object to how Ashford Castle, in its presentation of evidence to the Labour Court, referred to “ stress related work ”, rather than “ work related stress ”. Even if these words were wrongly juxtaposed by Ashford Castle, it was entirely clear what was meant by it and the Labour Court, in any event, had all the relevant medical evidence before it and was entitled to reach such conclusions as it did. Even if there was some substance to the objection made (and, respectfully, there is not), courts as a whole tend in any event to focus on the overall justice of matters, rather than ‘hanging’ a party over some technicality, but again, as mentioned, there is, in any event, no substance to the perceived technical wrong raised by Mr McCormack.
The Donoghue v. Stevenson Point
6. Mr McCormack appears to claim that the Labour Court operated in breach of Donoghue v. Stevenson[1932] A.C. 562. However, that is, with respect, to misunderstand the nature of the legal architecture that supports and informs the operation of the Labour Court. The Court was established by the Industrial Relations Act 1946, primarily as an industrial relations body charged with preventing and resolving disputes. Since 1974 it has adjudicated on employment rights legislation and, following on the enactment of the Workplace Relations Act 2015, it has been the sole appellate body for employment rights disputes. Thus, as a body, its obligations and duties derive from statute, subject to its obligation to apply fair procedures and to observe the principles of natural justice. The evidence before this Court establishes that the Labour Court has discharged all of the foregoing obligations appropriately and properly in this case.
The Workplace Health and Safety Point
7. Mr McCormack appears to invoke s.8(2) of the Safety, Health and Welfare Work Act 2005 in support of his appeal. With every respect, the court does not see that that provision has any relevance to the proceedings at hand. As to the related point that Ashford Castle entrusted Mr McCormack’s dismissal process to a senior manager who was then in a probationary stage of his employment, respectfully, the court does not see that this choice of senior manager was anything other than appropriate; indeed his seniority suggests that Ashford Castle treated with the decision as to how to proceed with Mr McCormack as a staffing matter of importance (as indeed it was).
The Louth VEC Point
8. Mr McCormack appears to seek to rely on Louth VEC v. Bernadette MartinPTD051. Respectfully, that case is of no relevance to the case at hand.
The Accommodation Point
9. The issue of Mr McCormack’s accommodation arrangements with Ashford Castle is not relevant to this appeal and Mr McCormack has not made out any basis on which it could be relevant.
The Capability Point
10. As the court understands matters, Mr McCormack contends that the Labour Court both misdirected itself and erred in determining that Ashford Castle honestly believed that the dismissal was effected on capability grounds. There is, with every respect, nothing in the Labour Court determination or the other evidence before the court which suggests, let alone establishes that it was anything other than fair and appropriate for the Labour Court to reach the decision it did. The court deals separately below with the complaint made as to the conduct of the Labour Court proceedings.
The Seal Point
11. Mr McCormack appears to challenge the authenticity of the Labour Court determination on the basis that it lacked a signature and/or a seal of the Labour Court.
12. The Labour Court determination before the court bears an embossed (physical) seal and the electronic signature (a typed name) of a Deputy Chairman of the Court.
13. Section 18 of the Industrial Relations Act 1946 provides as follows:
“(1) The Court shall have an official seal which shall be judicially noticed.
(2) The seal of the Court shall, when affixed to any document, be authenticated by the signature of the chairman or the registrar of the Court or of a person authorised by the Court to authenticate it.
(3) Every document purporting to express an order, award or other decision of the Court and to be sealed with the seal of the Court authenticated in accordance with this section shall, unless the contrary is proved [the contrary has not been proved here] , be deemed to have been duly and lawfully so sealed and shall, unless as aforesaid, be received in evidence as such order, award or decision without further proof and, in particular, without proof of any signature affixed to such document for the purpose of such authentication and without proof of the office or authority of the person whose signature such signature purports to be. ”
14. It seems to the court that the physically sealed determination before the court satisfies the provisions of s.18(3) and that the contrary position referred to in s.18(3) (as indicated in the quoted text above) has not been proved.
15. The court notes that the lack of a seal (here there is no such lack) or the lack of a signature (here there is no such lack) does not render a determination of the Labour Court invalid nor does it invalidate its authenticity.
16. The court sees no difficulty to present in the fact that the signature of the Deputy Chairman is an electronic signature, which conclusion, the court notes in passing, appears consistent with the provisions of the Electronic Commerce Act 2000 (with s.9 seeming to the court to be the relevant provision, not s.16, where one is treating with an electronic signature accompanying/authenticating a physically applied seal – though this point was not argued).
The Labour Court Process Points
17. Mr McCormack contends that the Labour Court panel did not always comprise two ordinary members. The evidence before the court establishes that the contrary is so. Mr McCormack contends that (i) he was not allowed speak freely and (ii) he was somehow treated as less than equal by the Labour Court. Mr Lawless’ evidence (and he was at the hearing) establishes that Mr McCormack (i) was allowed to speak freely, and (ii) was not treated as less than equal. As one would instinctively expect, the evidence points to the Labour Court, which is long-used to proceedings of the type that were before it, took every care to be fair. Mr Lawless, who attended the hearing, avers, amongst other matters, that “ the Appellant was afforded very significant latitude by the Deputy Chair to advance his appeal…. [I] t was my perception that the court was more lenient with the Appellant than it was with me or would have been in respect of any other professional representative ”. (Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and/or financial and/or other costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows).
The Labour Court Finding of Fact
18. The court has made reference above to the decision of the High Court in ESB v. Minister for Social Community and Family Affairs[2006] IEHC 59. In particular, the court recalls the following observation of Gilligan J., at para.87:
“[T] he approach of this Court to an appeal on a point of law is that findings of primary fact are not to be set aside by this Court unless there is no evidence whatsoever to support them. Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and further if the Court is satisfied that the conclusion arrived at adopts a wrong view of the law, then this conclusion should be set aside. I take the view that this Court has to be mindful that its own view of the particular decision arrived at is irrelevant. The Court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the Appeals Officer, to arrive at the inferences drawn and adopting a reasonable and coherent view, to arrive at her ultimate decision .”
19. The only finding of fact by the Labour Court to which Mr McCormack appears to have raised any objection in these proceedings is that whereby the Labour Court found Ashford Castle honestly to have believed that Mr McCormack was incapable by virtue of ill-health from carrying out the work that he was employed to do. But in fact there was substantial evidence in the form of multiple occupational health assessments before the Labour Court to justify such a finding. Bringing the above-quoted observations of Gilligan J. to bear, there is no basis for this Court now to upset this finding of fact.
The Decision in Bolger
20. Sections 6(1) and (4) of the Unfair Dismissals Acts 1977-2015 provide, amongst matters, as follows:
“(1) 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….
(4) Without prejudice to the generality of subsection (1) …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 one or more of the following:
a. the capability, competence or qualifications of the employee for performing work of the kind which he was employed to do ”.
21. The legal test in respect of capability was succinctly identified by Lardner J. in his ex tempore judgment in Bolger v. Showerings (Ireland) Ltd[1990] ELR 184, where he observed, at p.186, that in cases of ill-health yielding incapability, for an employer to show that the dismissal was unfair, it must show:
“(1) It was the ill-health which was the reason for his dismissal;
(2) That this was substantial reason;
(3) That the employer 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. ”
22. All of these criteria were met in this case. So there is no basis for upsetting the Labour Court findings in this regard either.
Conclusion
23. I know from my own past experience as an in-house counsel that cases in which someone has to be let go from employment because of ill-health can be very challenging cases for all concerned, both the party affected by ill-health and also their employers. When it comes to employers, they typically want to do right by an employee because (a) that is the right thing to do, (b) when it comes to health issues there is always the sense of, to use a colloquialism, ‘There, but for the grace of God, go I’, and (c) it is good for wider staff morale if all employees get the sense that if they encounter some personal misfortune in life they will be treated with ethically, sympathetically and, of course, in accordance with law. Fundamentally, however, most businesses are ‘for profit’ enterprises (or seek to be) and there may come a point where, however unfortunate (and these cases tend to be most unfortunate), an employee has to be dismissed in circumstances where ill-health yields the incapability contemplated by s.6(4) of the Unfair Dismissals Acts 1977-2015. Mr McCormack has the sympathy of the court that he found himself dismissed as he was. However, there is nothing in the evidence before the court which establishes, on the balance of probabilities, that there were any errors of law made by the Labour Court in his case (and none identified by Mr McCormack). Moreover, the evidence before the court points to there having been substantial evidence supporting the findings of fact made by the Labour Court. There is, therefore, no basis, on which the court could or will overturn the Labour Court determination of 17th February 2021 (Determination No. UDD2115).
Repeated Postponements
24. The court notes that this matter came on before it in the Michaelmas term. Mr McCormack felt too unwell to deal with matters at that time and the court adjourned matters to the Hilary term but on a peremptory basis, i.e. it indicated that out of fairness to Ashford Castle matters would have to come on for hearing at that later point. When the matter was called on earlier this term, Mr McCormack indicated that he continued to feel unwell. Counsel for Ashford Castle submitted that her client had turned up on each occasion and that, however unfortunate the circumstances, there has to come a point when proceedings proceed to hearing (not least as her client was paying for legal representation each time it turned up in court). Counsel noted too that the letter from Mr McCormack’s doctor did not indicate that he could not attend at court or participate in these proceedings.
25. As the court indicated at the hearing of this matter, it agreed with the submissions made by counsel for Ashford Castle in this regard: the court had extended the indulgence of postponing matters from the Michaelmas Term to the Hilary Term, essentially on Mr McCormack’s ‘say-so’; his doctor’s note, as produced at the Hilary Term hearing, did not indicate that he could not attend at court or participate in these proceedings; it would be costly and in any event just plain unfair to ask Ashford Castle to turn up yet again at some future date with no assurance that matters would then be heard; and the court has to approach matters with a view to doing justice to both sides (so postponing the Michaelmas hearing to give Mr McCormack more time but proceeding with the hearing in the Hilary term because Ashford Castle could not be asked to wait forever for matters to reach a conclusion – and at some point court proceedings have to proceed if they are not to become a never-ending process). All the foregoing being so, the court proceeded with this term’s hearing and has reached the conclusions described above.
Costs
It became the practice during the Covid lockdowns for the court in its principal judgment also to offer a provisional view as to how costs should be ordered. In this case, Mr McCormack has brought his appeal, failed (completely) in his appeal, and the court respectfully sees no reason why costs should not be ordered against him. Should either party disagree with this provisional conclusion as to costs, they should let the registrar know within 21 days of the date of this judgment and the court will schedule a brief costs hearing thereafter. If there is to be such a hearing, the parties might note that an order as to the costs of that hearing will also fall to be made.
TO MR MCCORMACK:
WHAT DOES THIS JUDGMENT MEAN FOR YOU?
Dear Mr McCormack
In the previous few pages I have set out in ‘lawyer’s language’ what I have decided in these proceedings. However, I am always concerned that an employee should be told in plain language what I have decided in a judgment that affects them. That is why I have added this ‘plain English’ note to you. Everyone else in the case will get to read it, but really it is written for you. The lawyers for Ashford Castle are well-used to legal language and so will be well able to understand my judgment without any need for ‘translation’ into plain English.
Because lawyers like to argue over things, I should add that this note, though a part of my judgment, is not a substitute for the detailed text of my judgment in the previous few pages. It seeks merely to help you understand what I have decided in what is your appeal.
I am afraid that I do not see that you have ever identified a point of law on which to ground a successful appeal. I have gone through the papers, sought to filter from them such points of law as I can, and addressed those points of law in my judgment. Having done so, I do not see any errors of to have been made by the Labour Court in your case (nor were any identified by you). There was, in fact, substantial evidence supporting the findings of fact made by the Labour Court. There is, therefore, no basis, on which I could or will overturn the Labour Court determination of 17 th February 2021 (Determination No. UDD2115).
I am sorry that you appear to continue to suffer from ill-health and wish you every good fortune in the future.
Yours sincerely
Max Barrett (Judge)