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labour court Ashford Castle concierge who was out sick for three years loses unfair dismissal case

David McCormack went out sick in November 2014 and remained absent from work until October 2017

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The five-star Ashford Castle in Co Galway

The five-star Ashford Castle in Co Galway

The five-star Ashford Castle in Co Galway

The dismissal by five-star hotel Ashford Castle of a concierge after he had been off sick for three years has been deemed fair.

In a ruling by the Labour Court, Deputy Chairman, Louise O’Donnell has thrown out the unfair dismissal claim by David McCormack against the luxury hotel firm.

Employed at the hotel since 2003 and promoted to the role of concierge in 2011, Mr McCormack went out sick on the November 5, 2014, and remained absent from work on sick leave until his dismissal on October 4, 2017.

In the Labour Court’s findings, Ms O’Donnell found that Ashford Castle Ltd honestly believed that Mr McCormack “was incapable of carrying out the work he was employed to do as a result of his ill health”.

Ms O’Donnell said: “The court therefore determines that his dismissal was fair.”

The decision by the Labour Court upholds an earlier ruling by the Workplace Relations Commission (WRC) which also found that the decision to dismiss Mr McCormack was fair.

The case came before the Labour Court after Mr McCormack’s decision to appeal the WRC ruling.

Mr McCormack submitted that when he went out sick in 2014 it was as a result of his work environment.

He argued that his continued absence was related to issues he had in respect of his work environment which he had tried to have resolved.

During his time off sick, Ashford Castle referred Mr McCormack on five occasions for occupational health assessments.

Following the last assessment in August 2017, the doctor advised “given the profound sense of grievance reported and his protracted absence and ongoing symptoms, I do not believe a return to work would be successful at this time and this is not likely to change in the medium term i.e. three to six months at least”.

Ms O’Donnell records that in early 2016 there was an exchange of correspondence in respect of Mr McCormack’s staff accommodation.

On September 2, 2016, Mr McCormack made an accusation of bullying against a member of staff.

General Manager at Ashford Castle, Niall Rochford met with Mr McCormack on December 7, 2016, to hear his grievances.

On January 10, 2017, Mr Rochford set out his findings in respect of the 48 grievances that Mr McCormack had articulated.

Mr McCormack submitted an appeal concerning Mr Rochford's findings but did not attend the meeting scheduled to hear his appeal.

Having received the final occupational health assessment in August 2017, Ashford Castle met with Mr McCormack and afforded him an opportunity to put forward proposals that would assist him to return to work.

The hotel firm put Mr McCormack on notice that the question of his dismissal for incapacity was being considered.

Ms O’Donnell said that the only proposal put forward by Mr McCormack was that Ashford Castle have patience while he processed a claim through the WRC.

Ms O’Donnell said that the court notes that Mr McCormack’s complaint to the WRC was not actually lodged until April 2, 2018.

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