About this case:

• Citation:
  ADJ-00017360
• Judgment:
  External link
• Court:
  Workplace Relations Commission

The man, who worked on the farm since 1993, was diagnosed with multiple sclerosis in 2004 and had only missed three days of work since his diagnosis.

Despite letters from a neurologist confirming his fitness to drive, the man had not been paid since July 2018 and Adjudication Officer Marie Flynn was satisfied that the employer had not taken any steps to assess if the man could not continue in his employment, nor was the man given any notice that dismissal for incapacity was being considered.

Background

In January 1993, the complainant commenced employment with the respondent, a company engaged in the business of agriculture and storage. He started as a general operative and became farm manager, performing numerous jobs including transporting materials, driving vehicles and operating machinery for a weekly wage of €560 for a 46-hour week.

In 2004, the complainant was diagnosed with MS. He immediately informed the respondent of his diagnosis, and submitted that his work had never been affected by his condition – he never missed work because of it, apart from three days in or around 2012.

The complainant’s case was that on 22 June 2018, the respondent sent him home from work claiming that there was no insurance for him, and that he was not to come back to work until he provided a letter from his neurologist confirming he was fit to drive. At a meeting between the parties that day, the respondent made the decision to dismiss the complainant, terminating his employment because there was an insurance “issue” due to the complainant’s medical condition. It was evident that the decision was made in haste and without any recourse to fair procedures, or giving the complainant an opportunity to be heard, or attaching any weight to his views. On 25 June 2018, the complainant went to work again and was again told to leave.

There had never been an issue with insurance before and the complainant possessed a full driving licence which he renewed every three years.

The respondent stopped paying the complainant his regular wage and, despite some small payments being made, the complainant has not been paid since 4 July 2018, nor has he been furnished with the relevant P60s.

Throughout August 2018, there was some correspondence between the parties, including letters from the Irish Wheelchair Association and the complainant’s neurologist confirming he was fit to drive. When the complainant’s solicitors sought sight of correspondence from the respondent’s insurance company, a letter was provided which sought a medical report – but this letter confirmed that the renewal date on the policy was 25 January 2019, and was dated after 25 June 2018.

The lands previously farmed by the respondent and his sheds for grains are now rented out, and the complainant felt his employer wanted to get rid of him by whatever means necessary in order to avoid paying him redundancy. He complained that he was denied fair procedures and that the dismissal was unfair, having regard to the relevant legislation and applicable principles. Furthermore, he complained that, in reality, his position was made redundant and that he was therefore entitled to compensation for the loss of redundancy payments he would have been entitled to.

The complainant submitted that he attempted to find alternative work but that his condition is off-putting to potential employers, and that he has been unable to secure alternative work since his dismissal.

It was the respondent’s case that the complainant had not been dismissed and that he had been asked to do non-driving work.

Workplace Relations Commission

Firstly, Adjudication Officer Flynn was satisfied that the respondent had contravened section 3 of the Terms of Employment (Information) Act 1994, in that the complainant was never provided with a written employment contract or a copy of his terms and conditions of employment. Section 3(1) of the Terms of Employment (Information) Act 1994 states that an employer shall give the employee a statement in writing containing particulars of the terms of employment no later than two months after the commencement of employment. For this, Adjudication Officer Flynn directed the Respondent to pay the complainant €2,240 in compensation.

Secondly, Adjudication Officer Flynn preferred the complainant’s narrative. She was satisfied that there was an implied contract between the parties whereby the respondent was obliged to pay the complainant wages every week. When the respondent arbitrarily ceased paying the complainant without any warning or consultation, he repudiated the contract. Considering all the evidence, Adjudication Officer Flynn was satisfied that the complainant was dismissed with effect from 5 July 2018 – the day after the last payment of wages.

Considering whether the dismissal was unfair, Adjudication Officer Flynn was satisfied that none of the key requirements for an employee being dismissed for incapacity, as set out in the case of Bolger v Showerings (Ireland) Limited [1990] ELR 184, had been met. At no stage had the respondent taken any meaningful steps to assess if there was a substantial reason why the complainant could not continue in employment – and the complainant was not notified at any stage that dismissal for incapacity was being considered.

Upholding this complaint, Adjudication Officer Flynn awarded the complainant one year’s salary (approximately) in the amount of €29,000.

• by Seosamh Gráinséir for Irish Legal News