Monday 24 June 2019

Dunnes Stores' decision to appeal €15k payment for discriminatory dismissal backfires

Dunnes Stores (Stock image)
Dunnes Stores (Stock image)

Gordon Deegan

Retail giant, Dunnes Stores' decision to appeal €15,000 awarded to an Assistant Manager who was dismissed after being on sick leave for two years has backfired.

This follows the Labour Court doubling the award made by an Adjudication Officer at the Workplace Relations Commission (WRC) to Mary Doyle Guidera to €30,000 after finding that Dunnes Stores discriminated against Ms Doyle Guidera on the grounds of her disability when dismissing her.

In the case, Ms Doyle Guidera commenced work for Dunnes in November 2003 and was dismissed by the retailer in September 2016.

Ms Doyle Guidera went on sick leave on June 9, 2014 and was dismissed from her job on September 27, 2016 regarding her “continued absence from work since June 9th, 2014”.

The dismissal letter from Dunnes went on to state that Ms Doyle Guidera, at a meeting with her employer on September 12, 2016, was “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”.

Ms Doyle Guidera told the Labour Court that throughout her employment with Dunnes she was an exemplary employee.

She said that she was certified sick on June 9, 2014 “and over the succeeding period she continued to suffer from stress and anxiety.”

In January 2016, Ms Doyle Guidera’s GP sent an update to Dunnes stating that Ms Doyle Guidera 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.

Ms Doyle Guidera had regular meetings with Dunnes Regional Manager in January, February, April, May and June 2016 to provide updates on her condition.

In correspondence, the Regional Manager scheduled a further meeting for September 12, 2016 where he would be seeking a definitive return to work in the near future.

At the meeting, Ms Doyle Guidera presented a referral letter to specialist consultant physicians.

The regional manager took the correspondence and then left the meeting for 10 minutes. On his return to the meeting, the regional manager said that he was terminating Ms Doyle Guidera’s employment but with notice.

Ms Doyle Guidera argued that Dunnes Stores’ conclusion that she was incapable of carrying out her work was reached in the absence of impending medical advice which would address Dunnes’s request for a return to work date.

Ms Doyle Guidera also argued that Dunnes was obliged under legislation “to make whatever reasonable accommodation might be necessary to facilitate her return to work”.

Advancing its case, Dunnes stated that it was clear to its Regional Manager that Ms Doyle Guidera’s condition had not improved over the two-year period. 

Dunnes argued that in fact, it appeared that Ms Doyle Guidera’s condition was worsening with additional serious and debilitating conditions emerging.

Dunnes stated that with its Regional Manager having met with Ms Doyle Guidera on seven occasions over the previous fourteen-month period, it was clear to the manager in September 2016 that Ms Doyle Guidera continued to suffer significant anxiety when visiting and being physically present in the store. 

In those circumstances it appeared to Dunnes that there was no reality to Ms Doyle Guidera returning to work in the near future following the meeting in September 2016. 

Dunnes stated that it was clear to Ms Doyle Guidera that Dunnes could not hold her position open indefinitely and that, when the time came, dismissal on the ground of incapacity was being considered.

In its findings, the Labour Court pointed out that a letter from Ms Doyle Guidera’s doctor in August 2016 reported that her condition had improved markedly and stated that she had been referred to a specialist.

The doctor stated in the letter that “any potential return to work will depend on the outcome of this specialist visit.”

The court found that Ms Doyle Guidera’s inability to definitively address the demand for a return to work date in September 2016 was a function of her medical advice related to her disability.

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