EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE claimant UD7/2012
Against
EMPLOYER
respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. T. O'Sullivan
Mr J. Flannery
heard this claim at Dublin on 26th July 2013
Representation:
____________
Claimant(s):
Respondent(s):
The determination of the Tribunal was as follows:-
Summary of Evidence
The claimant was employed with the respondent as a warehouse operative from the 17th July 2007 until 7th December 2011. The respondent provided and distributed goods to a large retailer. The claimant was a good worker and the respondent had no complaints about the work she undertook. The claimant suffered from flus, colds, stomach and back problems. On one occasion she had an infected foot due to the footwear she had to wear in work. The claimant maintained that the conditions in the warehouse contributed to her illnesses. On occasion the warehouse was either too cold/too warm and she had to lift heavy loads.
The claimant did not make a complaint to her employer about her working conditions. She was a member of a trade union and she did not ask her trade union to make representations on her behalf. The respondent had an agreement with the union and met the union on a regular basis. The respondent offered to provide the claimant with warm clothing in the warehouse which she declined.
During her employment the claimant had twenty six absences which amounted to one hundred days. It was company policy that employees on returning to work after being absent on sick leave completed a return to work form. The claimant attended a coaching interview in relation to her absence on the 7th October 2009. On the 19th March 2010 she attended a meeting along with PD, her husband and JC team leader. She received a verbal warning from her team leader due to the number of days she had missed from work. She was informed that improvement was needed in this area.
By letter dated 27th September 2010 she was invited to a disciplinary meeting on the 1st October 2010. In attendance at the meeting on the 1st October 2010 were the claimant, her husband (PD) who was her representative, AM the shift manager, PS translator and (TDQ) Training, Development & Quality Manager. The claimant had twenty seven absences from January 2010 until the 1st October 2010. As a result of this meeting she was issued with a written warning on the 4th October 2010 by (RE) HR manager.
By letter dated 15th February 2011 from (TDQ) the claimant was summoned to a meeting on Friday 18th February 2011 to discuss her attendance and to determine whether she had committed an act/acts of misconduct. In attendance at the meeting were the claimant, her husband PD who was her representative, AM shift manager, TDQ, (JD) employee and PS Translator. It was outlined to the claimant that she was absent on three days from the 12th to 14 January 2011 and on five days from the 24th to 29th January 2011. She was issued with a final written warning by RE HR manager on the 21st February 2011 which would remain on her file for twelve months. She had seven days to appeal the final written warning.
The claimant appealed the final written warning on the 27th February 2011. An Appeal meeting took place on the 14th April 2011 which was attended by (AO) Area General Manager, (RE) HR manager, the claimant and PD her representative. By letter dated 7th July 2011 from RE HR manager the claimant was informed that the respondent upheld the decision to issue the claimant with a final written warning and she had no further right of appeal.
The claimant was medically assessed by the respondent’s occupational health adviser on the 23rd August 2011 and as a result of this assessment she did not appear to have any underlying medical conditions. The claimant was absent due to illness from the 20th to 22nd June 2011, 11th October 2011, 13th October to 18th October 2011 and 25th October to 4th November 2011.
By letter dated 10th November 2011 from TDQ the claimant was invited to attend a meeting on Monday 14th November 2011 regarding the review of her final written warning for her attendance. Present at the meeting were the claimant, PD, TDQ and K O’N manager.
The claimant was absent on sick leave from the 22nd November to the 25th November 2011.
By letter dated 29th November 2011 from TDQ she was invited to a disciplinary meeting on the 6th December 2011. Present at this meeting were (AO) Deputy General Manager and the regional HR manager together with the claimant and PD. The meeting of the 6th December 2011 was adjourned and reconvened on the 7th December 2011. The claimant was informed that on grounds of misconduct namely an unacceptable attendance record that all stages of the respondent’s disciplinary procedure were exhausted and that the claimant’s employment was being terminated. The claimant was informed that she had the right to appeal this decision by letter dated 9th December 2011 from (AO) Deputy General Manager.
By letter dated 19th December 2011 addressed to JH Contracts General Manager the claimant appealed the decision to dismiss her. An appeal hearing took place on the 22nd December 2011. Present at the appeal hearing were JH, TDQ, the claimant and her husband. A short adjournment took place at this meeting. The outcome of the meeting was that the respondent’s decision to dismiss the claimant was upheld and the claimant had no further right of appeal. This was confirmed in a letter dated 23rd December 2011 from JH to the claimant.
The claimant sought alternative employment after her dismissal but as at the date of hearing had not been successful in obtaining alternative employment.
Determination
Having heard all the evidence in this case the Tribunal notes that the claimant was a good worker. She was unable to attend work due to illness but the respondent had to provide a service to its customers and in providing this service needed all employees to report for work. The Tribunal finds that the respondent adhered to its disciplinary procedures in dealing with the claimant and due to the high level of the claimant’s absenteeism was left with no choice but to dismiss her. An employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for the absences are genuine. The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)