Court overturns €19k unfair dismissal award to worker

The Labour Court has overturned a €19,000 unfair dismissal award made to a Dunnes Stores checkout worker who was dismissed after being absent from work for nearly three years.

The retailer successfully appealed against a ruling by an adjudication officer at the Workplace Relations Commission awarding €19,000 to Elaine O’Brien.

The Labour Court accepted Dunnes Stores’ view that there were substantial grounds justifying the dismissal of Ms O’Brien in circumstances where there was no prospect of her returning to work in the foreseeable future due to her continuing illness.

Ms O’Brien began working for Dunnes Stores in North Main St, Cork City, on October 18, 2004, and went on sick leave in April 2012. A ‘stress-related illness’ was the reason for her absence.

She had a baby in 2013 and the three-year, four-month absence from work included her time out on maternity leave from July 2013 to January 1, 2014.

Ms O’Brien remained off work until her dismissal on August 31, 2015.

The Labour Court said it was a flaw on Dunnes Stores’ part to include Ms O’Brien’s maternity leave as her time absent from work — it said her absence from work should have run from April 2012 to July 2013 and from January 2014 to August 31, 2015, a period of 35 months.

Marcus Dowling, for Dunnes Stores, told the Labour Court there were substantial grounds justifying the termination of Ms O’Brien’s contract of employment.

Ms O’Brien told the store’s HR manager, Sandra Long, in July 2012 that she had not been feeling well since her father was diagnosed with cancer at Christmas but that she had been trying to do her best to get on with things. 

She said she was finding it difficult to come into work or do anything else, and had begun to have panic attacks.

She gave Dunnes Stores a doctor’s cert stating that she was unfit for work for the foreseeable future due to anxiety and stress.

HR held review meetings with her in 2013, 2014, and 2015, and her condition remained unchanged.

At a review in March 2015, she said her GP had advised her to take baby steps. Dunnes Stores told her it could not hold the position open for her indefinitely without some indication of a return to work.

A subsequent letter from her doctor to Dunnes Stores said that Ms O’Brien “has unfortunately developed very significant anxiety issues which are not really responding to treatment”.

It said she remained unfit for work and was due to restart counselling and anxiety management.

At a meeting in July 2015, Ms O’Brien was unable to give any indication of when, if ever, she might be fit to return to work. On August 10, 2015, Dunnes Stores told her it was now seeking a date for her return to work and if she was not able to provide one, it would have to terminate her contract. It subsequently did so.

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