Dismissal of injured employee found to be fair

Employee fairly dismissed on basis of long-term illness


The employee worked as an order packer and injured her ankle when a box fell onto her. The employee was absent from work from April 2012 and, due to an initial misdiagnosis, had to go through a number of surgeries. All the employee’s absence from work was supported by medical certs


Medical assessment


In October 2015, the employer invited the employee to meet with the company doctor to be assessed in the hope of finding out when she was likely to return to the workplace, if at all. Following repeated requests by the employer, the employee finally visited the company doctor. Following protracted communications arranging the medical consultation, the company doctor reported that:


the chances for her getting enough movement in her ankle to be able to walk and stand for an 8-hour shift looks remote at present…it is highly unlikely she will ever be fit to return to her previous position as an order picker’.


Meeting with the employee


Following receipt of this report, the employer invited the employee to a meeting to discuss the report. The employee disagreed with the medical opinion and stated she was fit to return immediately. The employer requested that the complainant provide a certificate from her own doctor stating that the complainant was fit to return to her role, confirming that she was:


  • capable of performing her duties to the same standard prior to her absence
  • that her leg had healed completely
  • that there are no outstanding issues surrounding weakness or further healing that may still be necessary
  • that she be able to carry suitable weights as before without adversely affecting her leg
  • that she be capable of packaging duties such as lifting weights, carry boxes, pushing/pulling of packaging trolleys and pallets
  • that she be able to remain standing for long periods of time and also walking without it adversely affecting her leg
  • that she be in a position to wear safety footwear as is required by law

Employee’s failure to engage


The employer confirmed the details required in a letter to the employee but received no reply to numerous letters seeking her own doctor’s report and confirmation of a return to work date. Due to the lack of response to the couriered letters, the employer invited the employee to a meeting to discuss her employment during which the employer outlined its position that it was happy to accommodate a return to work in the near future but the role could not be held indefinitely and the requirement for a medical report to support her return to work would be required to make a decision on her employment, which may include termination.


The employee failed to attend or respond to the correspondence.  The employer wrote once again acknowledging the failure of the complainant to attend and invited her to a rescheduled meeting. The employer urged the employee to attend, accompanied by a representative, outlining the critical nature and outlining that a decision would be made in her absence if she chose not to attend and any decision made in her absence would be communicated in writing.


The employee replied to this final letter, advising the employer that she had not received any letters about a meeting. The employer again invited the employee to attend a rescheduled meeting and to submit a medical report confirming her fitness to work.


The employee once again failed to attend the meeting or provide a medical report and the employer ultimately wrote to the employee confirming its decision to terminate her contract on the grounds that she was unfit to return to normal duties, in accordance with the uncontested report from the employer’s doctor. Following an unsuccessful appeal, the employee’s contract was terminated.


Employer’s position


In the case, the employer relied on the ‘three-part test’ outlined in a previous case, Humphries V Westwood Fitness set out below:


  1. They were able to demonstrate that they had bona fide belief that the complainant was not fully capable of performing her duties
  2. In forming this belief, the respondent had made adequate enquiries to establish the factual position in relation to her capacity
  3. The employee concerned was allowed to fully participate and present medical evidence

The WRC’s determination


While the employee’s union argued that she was undergoing surgery when the decision to dismiss her was made and that it was unreasonable to dismiss her as she had done everything to facilitate her return to work, the adjudication officer determined that the employer went over and above what was required in carrying out the dismissal fairly.


Learning Points


  • Natural justice and procedural fairness should be adhered to at all times when considering dismissing on the basis of medical capability and allowing an employee every opportunity to respond is imperative
  • Don’t lose contact with an employee who is absent due to long-term illness
  • The employer in this case couriered all their correspondence as well as sending each correspondence by email, this can useful where receipt of correspondence could be contested.
  • Send employees who are on long-term absences to a company-nominated doctor and continue to seek a return date


Need more information on this case or medical incapability? Contact our advice line on +353 1 886 0350 to discuss this or any other HR issue affecting your organisation.

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