Dublin Bus has won a High Court appeal over its involuntary retirement of one of its drivers because it was alleged she could possibly pass out at the wheel due to a health condition.
Claire McKevitt (38), who was attached to the company’s Phibsboro depot, was found to have been unfairly dismissed by both an Employment Appeals Tribunal (EAT) and, on appeal, by the Circuit Court. Dublin Bus then brought an appeal to the High Court, where on Monday Ms Justice Una Ní Raifeartaigh allowed the appeal.
The tribunal had found she was unfairly dismissed on a number of grounds and awarded her €17,500. Dublin Bus appealed that decision to the Circuit Court, which found in Ms McKevitt’s favour on one ground only – that the company’s chief medical officer did not re-examine her before recommending her retirement on health grounds. That court cut the award to €10,000.
Ms Justice Ní Raiferataigh said the code of practice on grievance and disciplinary procedures under the Industrial Relations Act 2000, and which Ms McKevitt sought to rely on, did not apply to this case.
She said the provisions of the Act were concerned with “matters of an entirely different nature” to the sickness of an employee, and could in no sense be described as a disciplinary matter.
Incapacity
The judge rejected the argument that Ms McKevitt did not have fair notice of her intended dismissal for incapacity.
She also found there was no requirement for a further medical opinion to be obtained before the retirement recommendation was made. This was not really a case of conflicting medical evidence, and the decision was taken on the basis of the multi-factorial nature of Ms McKevitt’s health problems.
The court heard Ms McKevitt has a condition called vasovagal syncope which can make a person prone to fainting, especially in stressful situations.
Dublin Bus said driving a bus in the city was a stressful occupation, and it had to be sure there was no risk to its driver, passengers or the public.
Ms McKevitt said she was cleared to return to commercial driving work in 2014 in a report from the falls and blackout unit of St James’s Hospital in Dublin.
The court heard she joined Dublin Bus in 2007, and in 2009, after she was made permanent, she began to experience health difficulties. She had more than 200 days of sick leave between July 2009 and February 2012, and then went on permanent sick leave until April 2014, when she was involuntarily retired.
Ms McKevitt had a blackout in November 2011, and she was referred to St James’s, where she informed the hospital’s falls and blackout unit she had a history of blackouts over the previous 10 years.
Driving duties
That unit ultimately recommended she could return to work but her employer’s chief medical officer recommended she should not be allowed to return to driving duties from April 2014.
In its appeal seeking to overturn the Circuit Court decision, Dublin Bus claimed retirement on health grounds was no one’s fault and not a disciplinary process.
Ms McKevitt claimed she was not given an opportunity to challenge the decision before it was taken.