High Court: Dublin Bus wins appeal against finding of unfair dismissal

Finding that the employer’s reasoning for dismissal, based on medical reasons, had satisfied the principles outlined in Bolger v. Showerings ELR 184, Ms Justice Ní Raifeartaigh allowed the appeal and vacated the order of the Circuit Court.

Background

Ms Claire McKevitt began working for CIE as a bus driver in 2007, and was employed permanently in 2009.

Against a background of a multiplicity of health problems and absences, Ms McKevitt was dismissed in April 2014 on the ground that she did not have the capability to perform the work she was employed to perform, namely driving a bus.

Evidence on behalf of Dublin Bus was that one of the main factors in the “multi-factorial conclusion” of not being fit to drive buses was her diagnosis of vasovagal syncope or blackout – notably, in November 2011, Ms McKevitt had suffered a blackout in her home and was referred to the Falls and Blackout Unit (FABU) in St. James’ Hospital. In a report from FABU, it was noted that “she had been getting syncope events once a year for the last 10 years” – however Ms McKevitt described this as having “dizzy spells”.

Procedural history

The Employment Appeals Tribunal awarded Ms McKevitt €17,500.00 on the basis that there had been several breaches of fair procedures:

The Circuit Court reduced the award in favour of Ms McKevitt to €10,000.00. Pursuant to s. 11 of the Unfair Dismissals (Amendment) Act 1993, the court found in favour of Ms McKevitt on one ground only, namely that the CMO did not re-examine, meet, or hear from Ms McKevitt.

High Court

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.

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.

Justice Ní Raifeartaigh was not satisfied that this has any application to Ms McKevitt’s case, as the sickness of an employee could not be described as a disciplinary matter.

It would 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.

Justice Ní Raifeartaigh said that Bolger v. Showerings ELR 184 was clearly relevant to Ms McKevitt’s case. In Bolger, it was held that in a case involving dismissal for incapacity, the onus is on the employer to show:

Applying these principles to the present case, Justice Ní Raifeartaigh said that the perceived incapacity of Ms McKevitt was the only reason for her dismissal, and that the reason was a substantial one.

As such, the key issues were 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.

Adequate notice

Justice Ní Raifeartaigh found that Ms McKevitt was personally informed in December 2013 by the Occupational Physician that he intended to recommend her retirement on ill-health grounds, and advised again in January 2014.

This was reiterated in February and April 2014 letters from the HR department.

Justice Ní Raifeartaigh said that reality of the situation was that she had been told from as early as December 2013 that her retirement was under consideration. Whether the form of this was written or formal was not important.

Justice Ní Raifeartaigh was therefore satisfied that Ms McKevitt had fair notice of her intended dismissal for incapacity.

Given the lengthy absences, Justice Ní Raifeartaigh added that it could “hardly have come as a surprise… that the issue of retirement would come up after a certain point”. Justice Ní Raifeartaigh said she did not find Ms McKevitt’s “evidence credible when she continued to maintain that she was shocked and surprised when the issue came up”.

Opportunity of being heard

Ms McKevitt had numerous consultations with the Occupational Physician, and Justice Ní Raifeartaigh was satisfied that he and the CMO had considered all of the specialist reports on her medical files. Furthermore, the Occupational Physician had communicated with FABU and with her GP throughout 2013 outlining the likelihood of her retirement. Thereafter, the Occupational Physician had a further appointment with Ms McKevitt in March 2014.

Considering all of the foregoing, Justice Ní Raifeartaigh was satisfied that Ms McKevitt had an opportunity to put her case forward, and rejected the suggestion that the Occupational Physician had a closed mind in relation to the matter.

“…considering the matter from the point of view of substance over form”, Justice Ní Raifeartaigh was satisfied 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.

Vacating the order of the Circuit Court, Justice Ní Raifeartaigh allowed the appeal.