Need help with a problem question - relevant law

mstq

Hello

I need a little help with a problem question - while i can find legal / factual issues [at least some of them ^^] i don't quite know the relevant law.

Here's the question:

Fictional Scenario
Claire was employed as a child-care assistant in a creche from 19 January 2009 until she was dismissed on 29 March 2012.
Her duties involved the care of young children in the after-school playroom in the creche facility of a large organisation.
On a few occasions she had experienced 'funny turns' where she felt like she was about to faint and she had been off work on a number of individual days feeling generally unwell. However, on the 17 January 2012 she suffered a seizure when looking after the children in the playroom. During the seizure Claire fell off the steps she was using to put up pictures on the wall that the children had just painted. A colleague (Jane), who was a first aider, attended to the large gash over Claire's left eye, which was a result of her head striking the side of a desk when she fell heavily. Some of the children were crying and Claire was dazed, confused and upset. Jane was worried about Claire and arranged for a colleague to take her home. Jane also reported the incident to the Human Resource (HR) Manager. Claire's family doctor advised her to go to the hospital for tests, which Claire did, and she was declared fit to return to work later that week.
A number of months later, on Monday, 19 March 2012, Claire was sorting out supplies in the stationary room when she had another seizure. One of her colleagues noticed he hadn't seen Claire in quite a while and decided to go look for her. He discovered Claire lying on the floor, passed out with a number of supplies strewn around the ground. He had no idea how long Claire had been lying there. Claire came round a short while later and her colleague helped her to her feet. Claire was again driven home by a colleague.
The HR Manager phoned Claire early the next day, asked her how she was and advised Claire not to come into work until the next day. Claire said she felt fine but the HR Manager insisted she stay at home. Claire thought this was really nice of her.
However, in the meantime, the HR Manager and Child-care Manager had a meeting to discuss Claire's future with the organisation and her illness. They decided that the only way forward was to dismiss Claire with immediate effect. After all, they had both asked Claire for access to the results of the hospital tests on a number of occasions to no avail and they didn't know how long this situation would go on for. In their opinion, Claire's illness meant she was no longer safe to have around the children.
The HR Manager contacted Claire to ask her to come in for a meeting with them both in order to discuss her illness. Claire attended the meeting on Wednesday, 21 March 2012 and was informed that it had been decided to terminate her employment.
She was subsequently dismissed by letter dated 23 March 2012. The letter stated among other things that:
"As discussed, you are obviously suffering from a condition that requires a lot of time and treatment to address. We believe that you are a danger to both yourself and others around you and in particular to the children you supervise. The company has a moral and statutory obligation to ensure the health and safety of all our employees and the children who attend this facility. We have no choice but to terminate your employment on safety, health and welfare grounds with immediate effect.
Claire has been left very upset by what has happens and believes she has been discriminated against.

The issues I have distinguished so far:
1. Claire didn't forward medical tests requested by employer, which is contrary to section 13 of safety, health and welfare at work act 2005 which disables employer to fulfil his duties in respect of section 23 of the same act [medical fitness to work]
2. Failure to adhere to the rules of "fair procedures" by employer.

And this is about it... nothing about discrimination ;/

Is there any other act that is relevant or some cases? Few tips please?

Cheers

If this is homework (and it certainly looks that way) then we'd actually be doing you a dis-service by helping you here as the real benefit of a legal education is two-fold; it isn't simply about knowing the law but also about knowing how to research thoroughly, identify issues and apply the law to same. By taking short cuts like this it would really not be helping long term at all.

I know I sound like an awfully unhelpful git by saying this but it is true.

MagicSean

Deleted User wrote: »

If this is homework (and it certainly looks that way) then we'd actually be doing you a dis-service by helping you here as the real benefit of a legal education is two-fold; it isn't simply about knowing the law but also about knowing how to research thoroughly, identify issues and apply the law to same. By taking short cuts like this it would really not be helping long term at all.

I know I sound like an awfully unhelpful git by saying this but it is true.

If that was the case then there would be no point in lectures. The op has identified the issues but doesn't have the required knowledge of legislation to further answer the question. There's no harm in pointing him on the right direction. It is a legal discussion forum after all.

Wish I could help op.

spudington16

MagicSean wrote: »

If that was the case then there would be no point in lectures. The op has identified the issues but doesn't have the required knowledge of legislation to further answer the question. There's no harm in pointing him on the right direction. It is a legal discussion forum after all.

Wish I could help op.

You can't equate lectures with independent research. Research is a skill that will serve you well through third or fourth level education, and on in life.

MagicSean

spudington16 wrote: »

You can't equate lectures with independent research. Research is a skill that will serve you well through third or fourth level education, and on in life.

But research doesn't involve just reading. There's more than one legal practitioner out there that has discussed an issue with a colleague when they were in need.

jblack

MagicSean wrote: »

If that was the case then there would be no point in lectures. The op has identified the issues but doesn't have the required knowledge of legislation to further answer the question. There's no harm in pointing him on the right direction. It is a legal discussion forum after all.

Wish I could help op.

I agree MagicSean, therefore here's a beginning for you OP.

Has she received minimum terms as per Terms of Employment (Information) Act, 1994? If not, slam dunk success on that claim.

Unfair Dismissals Acts, 1977-2007

Grievance procedures - employer must apply the principles set out in Code of Practice Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, SI 146/2000.

NB - notice (either contractual or at least the statutory minimum) see also Sheehy v Ryan and Moriarty [2004] 15 ELR 87, Carey v Independent Newspapers [2004] 15 ELR 45

Equality and Discrimination - sources - don't see this as hugely relevant
Article 141 EC Treaty
Employment Equality Acts, 98-2008
75/117/EEC; 76/207/EEC; 2000/43/EC; 2000/78/EC
The Constitution

Health and Safety
Safety, Health and Welfare at Work Act, 2005
2007 Regs, including Part X and Scehdule 12
s.20 2005 Act
s.22 2005 Act

Medicals
Maureen Heeney v Dublin Corp, 16 May 1991, High Court (unreported)
Scally v Westmeath CC [1996} ELR 96


That should kick you off and hopefully point you in the right direction.