Dunnes Stores (Represented by Marcus Dowling B.L. Instructed by Byrne Wallace) v Mary Doyle Guidera (Represented by Services Industrial Professional Technical Union)
| Jurisdiction | Ireland |
| Judgment Date | 30 July 2018 |
| Judgment citation (vLex) | [2018] 7 JIEC 3001 |
| Docket Number | FULL RECOMMENDATION DETERMINATION NO. EDA1838 ADJ-00008141 CA-00010831-001 |
| Date | 30 July 2018 |
| Court | Labour Court (Ireland) |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/18/4
DETERMINATION NO. EDA1838
ADJ-00008141 CA-00010831-001
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Treacy
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
1. Appeal of Adjudication Officer Decision No. ADJ-00008141 CA-00010831-001.
2. Both the Employee and the Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 23 May 2018. The following is the Determination of the Court:
This matter comes before the Court as an appeal by both parties of a decision of an Adjudication Officer in a complaint by Ms Mary Doyle Guidera (the Complainant) against her former employer, Dunnes Stores (the Respondent), under the Employment Equality Acts, 1998 to 2015 (the Act).
The Adjudication Officer, in a decision dated 18 th December 2017 upheld the complaint and awarded the sum of €15,000 in compensation. The appeals of that decision were received by the Court on 26 th January 2018.
The Complainant commenced employment with the Respondent on 15 th November 2003 and her employment was terminated by the Respondent on 24 th October 2016. At the date of termination of her employment she was employed as an Assistant Manager and her salary was €35,000 approximately.
It is common case that the Complainant, at the date of termination of her employment and prior to that date, suffered from a disability within the meaning of the Act.
The termination of the Complainant's employment followed a period of absence from the employment which commenced on 9 th June 2014. In a letter dated 26 th September 2016 the Respondent stated that the decision to terminate the employment was made “regarding your continued absence from work since 9 th June 2014”. That letter went on to state that the Complainant had been met on 12 th September 2016 and at that meeting she was still “unable to provide an indication of a date of return to work in the near future. You could also not provide any new or updated medical information / opinion regarding your illness”.
The Complainant submitted that throughout her employment she was an exemplary employee. She was certified unfit for work from 9 th June 2014. Over the succeeding period she continued to suffer from stress and anxiety.
Over the succeeding months the Complainant was asked to attend meetings with management of the respondent which she did. She was also asked to attend the Respondent's company doctor on 23 rd February 2015. That doctor confirmed that she was unfit for work but that with continued care she should make a good recovery.
She attended a meeting with the Respondent management in March 2015 where she was asked if she was fit to return to work and she said she wasn't.
A further series of meetings took place over the succeeding period including with the Respondent's Regional manager, Mr JD.
Her GP sent an update to the Respondent in January 2016 stating that the Complainant suffered from a severe stress related illness and that it was not possible to predict with certainty when she would be fit to return to work.
The Complainant attended further meetings with Mr JD in January, February, April, May and June 2016.
Mr JD wrote to the Complainant in August 2016 stating that, at the June meeting, the Complainant had not provided a return to work date. The letter scheduled a meeting for 22 nd August and advised her to discuss the matter with her doctor and to bring any medical or other information she wished the Respondent to consider to that meeting. The letter advised the Complainant that her position would be considered at that meeting and that such consideration could lead to a decision to dismiss her.
At that meeting she supplied Mr JD with a letter advising that she had been referred to a specialist and that her return to work would depend on the outcome of that visit. Mr JD advised her that he needed a return to work date. Mr JD advised her that her contract would be terminated.
The Complainant received a further letter from Mr JD on 1 st September 2016 inviting her to a further meeting on 12 th September. That letter advised her to discuss the matter with her doctor before the meeting and that she should bring any medical reports or other information she wished to the meeting on the 12 th. The letter advised her that Mr JD would, at the meeting, be seeking a definitive return to work date in the near future.
The Complainant attended the meeting on 12 th September and provided Mr JD with a copy of the referral letter to specialist consultant physicians and other letters in that connection. Mr JD took out the letters and read them at the meeting and then left the meeting for ten minutes. Upon his return he told her he was terminating her employment but with notice. When she asked for clarity on the issue of notice Mr JD advised her that she would receive a letter.
The Complainant received a letter on 27 th September advising her that her employment was terminated, that she would receive six weeks' notice and that the date of termination would be 24 th October 2016.
The Complainant submitted that at the material time she was suffering from a disability within the meaning of the Act and that she was dismissed by reason of that disability. The Respondent had concluded that the Complainant was incapable of carrying out the work for which she was employed. That conclusion was reached in the absence of impending medical advice which would address the Respondent's request for a return to work date. In addition, the Respondent was obliged by Section 16 of the Act to make whatever reasonable accommodation might be necessary to facilitate her return to work. Any consideration of this matter could only be made upon receipt of the relevant medical advice which the Respondent did not wait to receive.
The Complainant submitted that the Respondent had asked the Complainant in February 2015 to attend their medical adviser which she did. That medical adviser had stated that she ‘would like to review her regularly’ but such a review had never been arranged.
The Complainant submitted that the Respondent made no effort to understand what if any support or other reasonable accommodation would have facilitated her to return to employment. The Respondent therefore did not discharge its responsibility to make...
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