In the case of Callanan Buses Limited ADJ-00027139 the complainant employee was awarded €13,650 for the effects of discriminatory dismissal concerning his attempts to return to work after a prolonged absence from work due to cancer treatment.
The employee (complainant) in this case was cleared by his GP to return to full duties of employment in October 2019, his absence from work having commenced in October 2018.
When the employee informed the company that he was fit to return to work he was informed that he would have to speak to the more senior director which he eventually did in November 2019. During this conversation the complainant felt that the senior director was curt on the phone as she informed him that she no longer had work for him and that she had to hire someone in the interim to fill in for him as “What was I supposed to do, I had to give him a contract”.
It was the complainant’s case that he was promised continuing employment throughout his illness and that his job would be there for him when he returned. He stated he felt shocked and disillusioned at the conversation and that she had then said, “For all I know you could go out on sick leave in a couple of months’ time again”.
The company argued that it gave considerable regard to the employee’s capacity to work and considered appropriate measures to consider if the employee would be competent and capable of working on reasonable accommodation having regard to his illness. It was· considered that the employee could not be employed as his employment would impose a disproportionate burden on the company having regard to the costs entailed and the scale and financial resources of company business. The company produced a quotation showing the cost of work that would involve the removal of four sets from the bus and the fitting of a chemical toilet in the bus, the cost of such work would amount to €5,618.25.
Workplace Relations Commission Decision
The Adjudicator noted that Clause 6 C of the employee’s contract provided: “The employee hereby undertakes to attend at any medical examination arranged by the Company and the Employee hereby authorizes the doctor appointed by the Company to disclose to the Company the results of the medical examination carried out by him”
It was noted that there was never any request made to the employee that he attend a doctor appointed by the company.
The Adjudicator noted that at no point did the employee look for any “reasonable accommodation” to be made in respect of his return to work and that the quote obtained for works was dated after the employee told the company that he was fit to return to work and normal duties.
The Adjudicator concluded that the employee had been discriminatorily dismissed and awarded compensation of €13,650.
Case Learning Point
An employer cannot simply dismiss an employee because they are on long term sick leave and a number of steps have to be undertaken before this can be considered. Employers should also query as to whether the employee may be suffering from a “disability” under Employment Equality legislation e.g. stress/depression as this may require an employer to put “reasonable accommodation” or steps in place to allow an employee return to work if requested to do so.