BUILDERS’ MERCHANTING BUSINESS, the Chadwicks Group, has been ordered to pay €60,000 compensation for the dismissal of a long-serving employee who had to use a Zimmer frame as she recovered from back surgery.

In the case, Workplace Relations Commission (WRC) Adjudicator, Valerie Murtagh ordered the Chadwicks Group to pay Marie O’Reilly €60,000 for her dismissal in August 2022 following 37 years service with the company, on the grounds that it discriminated against her because of a disability.

O’Reilly was represented in the case by solicitor Barry Kenny of Kenny O’Sullivan Solicitors and Arthur Cush BL. She commenced work with Chadwicks 1979 at the age of 17, and worked with the firm from 1979 to 1993 and again from 1999 to 2022.

O’Reilly – who worked at the firm’s store in the Sallynoggin area of Dublin – was promoted to a credit control assistant in 2018 and told the hearing that she “loved her job”.

In February 2021, she attended hospital for a routine back surgery. When she awoke from the surgery, her right leg was paralysed and she had suffered “dropped foot” due to unexpected complications with the surgery.

O’Reilly outlined that her mobility was seriously compromised and she was initially able to move only very slowly and with the use of a walking frame and crutches.

This was O’Reilly’s first time on extended sick leave from work and she told the hearing that she was determined to regain her mobility and independence.

She followed the advice of her doctors and engaged in private physiotherapy, swimming and gym exercises.

O’Reilly outlined that her disability relates to spine surgery with lumbar fusion and post-operative foot drop and paraesthesia.

In her findings, Murtagh found that Chadwicks did not carry out a comprehensive assessment into the specific needs of O’Reilly which would have enabled her to continue in her employment.

Murtagh also found that Chadwicks has misquoted their own doctor’s medical report in an attempt to justify its decision to terminate O’Reilly’s employment.

Murtagh found that the doctor did not state in any of his reports, contrary to Chawicks’ assertion, that O’Reilly was unfit for a sedentary role.

Murtagh also highlights in the company doctor’s final report dated 22 June 2022 which was based on a consultation with O’Reilly by phone, that he stated that he would like to review her in three to four months time.

Murtagh stated that the company issued a letter to O’Reilly in July 2022 stating that it had concluded that it must terminate her employment due to capability.

Murtagh stated that she found this decision stark given that the consultation with the company doctor on 22 June was by telephone and further the report does not consider what work and/or duties O’Reilly would be capable of performing had reasonable accommodations been considered to allow her to continue in employment.

Murtagh stated that Chadwicks did not examine or consider a hybrid role or working from home as a modification to O’Reilly’s existing role.

Murtagh stated that there was a failure by Chadwicks to provide O’Reilly with reasonable accommodation to allow her continue in her job.

Murtagh pointed to O’Reilly’s own consultant neurosurgeon who stated in a report:

I think she certainly could have been accommodated in the role of accounts assistant in many ways and perhaps even a hybrid role or working from home and the fact she is able to sit and perform most of her duties and she is also able to independently mobilise.

The consultant neurosurgeon further stated that “I do feel that she is fit to work in the same role, perhaps with a different job description but her current situation remains that she is independently mobile with one stick and is able to drive and I do not see any reason why she cannot be working in the capacity of accounts assistant”.

As part of her order, Murtagh has further ordered that Chadwicks carry out a review of its policies and procedures to ensure that they are up to date and in compliance with employment equality legislation.

In the case, Chadwicks strongly disputed O’Reilly’s claims and contended that it terminated her employment on the grounds of capability in accordance with the Unfair Dismissals Act.

Chadwicks – which operates 50 stores in Ireland – submitted that at the time of termination on 12 August 2022, O’Reilly had been absent from the company for a period of one year and six months, and was not medically fit for work for the foreseeable future.

Chadwicks further contended that it had to make a business decision with the information available to it, and all material facts concerning O’Reilly’s capability.

It stated that O’Reilly was given fair notice that the possibility and question of dismissal for incapability were being considered.

The builder provider group stated that it came to a reasonable conclusion that O’Reilly was unfit and unable to return to work and that this conclusion justified her dismissal on grounds of incapability.

Commenting on the outcome, O’Reilly’s solicitor and employment law specialist, Barry Kenny said: “It is clear from the facts of this case that after many years of loyal service to the company, Ms O’ Reilly was treated unfairly by her employer and was the subject of a substantial discrimination when her employment was terminated.

He added: “I am pleased that the adjudicator in the case has agreed with the submission made on behalf of Ms O’ Reilly and we welcome the findings and the substantial award.”

Chadwicks has been contacted for comment.