In a recent case which was decided in January 2018, an employer’s decision to dismiss an employee who was absent on long term sick leave was determined by the Workplace Relations Commission (“WRC”) to be reasonable (ADJ-00007463).
The complainant worked as an order packer, injured her ankle when a box fell off a pallet onto her ankle. She was absent from work from 4 April 2012. As a result of a failed misdiagnosis originally, she had to go to a number of surgeries and provide medical certification throughout her extended absence.
On 1 October 2015, the respondent wrote to the complainant inviting her to meet the company doctor for an assessment and to find out when she was likely to return. After repeatedly writing to her without response, the complainant eventually attended the company doctor who stated that she was unlikely to ever be able to return to her previous position. The complainant disputed this position and said she was fit to return immediately. As a result of this contention, the respondent requested that she provide a certificate from her own doctor stating she was fit to return, but the employee failed to ever provide this documentation. She was then eventually dismissed and her contract ended on 25 November 2016. The complainant unsuccessfully appealed the dismissal.
The respondent relied upon the three part test outlined in Humphries v Westwood Fitness Club
(EED037; ED/02/59; ELR 296):
- They were able to demonstrate that they had a bona fide belief that the claimant was not fully capable of performing her duties;
- In forming this belief, the respondent had made adequate enquiries to establish the factual position in relation to her capacity; and
- The employee concerned was allowed to fully participate and present medical evidence.
Essentially it felt that it had met this test and went over and above what was required of it in relation to the employee.
The complainant’s union argued that she was undergoing surgery when the decision to dismiss her was made and that is was also unreasonable to dismiss her as she had done everything to facilitate her return to work. She sought reinstatement or re-engagement.
The Adjudication Officer believed that the respondent had met the three part test outlined in Humphries and found that the employee had not been unfairly dismissed.
Whilst the complainant’s own case suffered here, as a result of her general failure to engage with the process, the case highlights that employers must show a robust process which allows the employee the opportunity to participate fully if considering dismissing an employee who is on long term sick leave.