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Fired Firefighter Rehired

On 12th February 2019, the WRC determined a fireman be re-engaged following his employment being terminated due to failing a medical fitness test.

Facts

The Claimant,  firefighter, who commenced employment in 1998 with a local authority was given notice of dismissal by letter, dated 1st December 2017 for failing a medical assessment on the 15th November 2017.

The Claimant had a medical check-up on the 20th February 2017 with Dr. OF and failed to meet the required fitness levels. The Claimant then had a follow up fitness test on 29th May 2017 with Dr.OF and failed again. The Claimant appealed this result and on 5th July 2017 received a letter confirming an independent medical assessment on 12th July 2017 by Dr. C.McD.

The Claimant could not attend the assessment as he had surgery on his shoulder on 12th June 2017 due to damage caused in a work related incident some years previous. A letter from Dr. KK, Consultant Orthopaedic Surgeon stated that the Claimant’s recovery was slow following surgery and was hopeful the Claimant would be back to work on 31st October 2017.

The Respondent contacted the Claimant afterwards to confirm he could not return to work until he attended a further medical. The Claimant then sent a letter to the Respondent confirming he would be back to work on 31st October and would be attending his further assessment on 15th  November “under protest” as he felt he had no other choice. The Claimant then failed this test due to an elevated heart rate. It was confirmed to the Claimant, by Dr.H that he would have another medical in 8 weeks’ time.The Claimant then received a letter dated 1th December 2017 informing him of his termination of employment due to failing the medical assessment on 15th November.

Decision      

The Adjudicator found the Claimant had been unfairly dismissed.

In his decision he noted in particular the provisions of the Occupational Health Scheme for members of the retained fire service. The final paragraph of the Scheme states that if an individual fails to achieve the minimum level of fitness he/she should be put on a programme to achieve an improved level of aerobic fitness. A reasonable period of time (e.g. 6 moths) should be allowed before another test is conducted.

The Adjudicator noted that the Respondent never gave the Claimant a programme to try and attain better fitness levels or a reasonable period of time between assessments.

In the doctors final assessment he stated that the Claimant was “Temporarily unfit to continue in service at present.” The Respondent was found to be pre-emptive in dismissing the Claimant and should have accepted the doctor’s determination.

The Respondent failed to follow fair procedures in dismissing the Claimant. They failed to comply with the Occupational Health Scheme and the confirmation Dr. H gave the Claimant on 15th November that he would have a further test.

The Adjudicator required the Respondent to re-engage the Claimant, subject to successfully passing a medical test and the timing of the test being mutually agreeable between both parties.

Anne O’Connell Solicitors

Fitzwilliam Hall, Fitzwilliam Place, Dublin 2

www.aocsolicitors.ie

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