EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Joseph Russell -appellant
UD180/2013
against the recommendation of the Rights Commissioner in the case of:
Wicklow County Council -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates
Members: Mr F. Moloney
Mr M. O'Reilly
heard this appeal at Dublin on 28th January 2014
Representation:
Appellant: Ms Kathleen Funchion, SIPTU, Liberty Hall, Dublin 1
Respondent: Ms. Sarah Hearns, HR Executive,
Local Government Management Agency, 35-39 Ushers Quay, Dublin 8
This appeal came before the Tribunal by way of an employee appealing against the decision of a Rights Commissioner (reference: r-123623-ud-12/MMG)
Summary:
The claimant was employed with the respondent as a general operative fromAugust 2004. However, there were issues with the claimant’s attendance from that time. The claimant’s probationary period was extended on two occasions. It was the claimant’s case that he enjoyed working for the respondent but he began to experience difficulties with a colleague in the second or third month of his employment. The claimant did not report this to management as he tried to resolve the issue himself.
The Tribunal heard evidence from the claimant’s line manager who held the position of Area Engineer at the time, the Personnel Officer, the Director of Services and the claimant. The facts were common case between the parties.
There was an absenteeism issue with the claimant that became progressively worse. The claimant’s line manager met with the claimant informally in relation to this issue and also issued a verbal warning to the claimant in 2006. He stated that on some occasions the absences were certified and others were uncertified. The manner in which the claimant reported the absences was also an issue.
The claimant was part of a small crew and the frequency of the claimant’s absences was concerning and made it difficult to plan work and often work had to be re-arranged. The line manager made the decision to invoke the disciplinary procedures given the recurring nature and frequency of the claimant’s absences. A meeting was held with the claimant in the presence of the General Services Supervisor in September 2009 to explain the procedures to him. It was outlined to the claimant the difficulties that arose due to his poor attendance. The claimant apologised for the disruption caused and he was advised that he was being provided with a written warning. The claimant acknowledged that his absences caused problems for the workplace and stated that he was having personal difficulties. The claimant was advised at this meeting as to what was deemed acceptable notification of an absence. The full disciplinary procedure was outlined to the claimant. The written warning was effective until July 2010.
Following the issuing of the written warning on 9th October 2009 matters improved for six weeks but subsequently deteriorated. A list detailing all of the claimant’s absences was opened to the Tribunal. The line manager again met with the claimant regarding the continuing absenteeism and explained to him that he should invoke the next stage of the disciplinary process. It was decided to extend the length of time that the written warning was on file on the basis of the on-going review of the claimant’s medical condition.
On the 15th July 2010 a welfare meeting was held with the claimant to monitor his progress and absenteeism. It was explained to the claimant that this meeting was outside the disciplinary process and was to assist him. The claimant was advised of the Employee Assistance Programme. The claimant was also referred for a number of independent medical assessments during 2010 and 2011. Medical reports were provided to the respondent and were consistent in stating that the claimant was fit for work if he continued to take medication and follow advice.
However, problems with the claimant’s attendance continued and the line manager issued the claimant with a final written warning on 22nd August 2011 for long term continuous absenteeism and failing to inform his supervisor of an absence in an appropriate manner. The manager continued to monitor the situation after that time and reported on the situation to the Director of Services. The claimant’s attendance had deteriorated rather than improved on a month by month basis. One issue raised by the claimant was that he found it difficult to work alone. An alternative was offered by the line manager to the claimant but this offer was rejected.
The Personnel Manager was aware from 2005 of issues with the claimant’s attendance. Prior to 2008 a number of illnesses were the reasons for the absences but in 2008 a medical letter was received indicating that the claimant was suffering from a particular type of illness. The respondent sought follow up information but no reply was received.
The Personnel Manager stated that the attendance management policy was provided and outlined to the claimant and she believed the claimant was aware of the implications. There were five medical assessments in total and the respondent relied on the information provided to them. The last medical assessment the claimant attended was with an occupational heath doctor in June 2011. The report received after this assessment was consistent with the previous reports. The reports all deemed the claimant fit to work if he continued to take medication and follow advice.
In reply to questions from the Tribunal, the Personnel Officer stated it was only prior to the appeal that certain information was provided to the respondent in relation to the claimant’s health. However, the respondent did not deem from this information that they should refer the claimant to any further medical services.
When the Director of Services received the report from the claimant’s line manager in February 2012 he decided to ask the claimant if there were any additional circumstances to be taken into account. Accordingly, letter dated 24 February 2012 issued to the claimant enclosing a copy of the report received from the claimant’s line manager. Prior to meeting the claimant on the 6th March 2012, the Director reviewed all of the relevant documentation as well as the medical certificates and medical reports. At the meeting the claimant provided a letter from a medical practitioner. Following the meeting the Director of Services weighed up the claimant’s situation with managing the respondent’s workload. He made a recommendation to the County Manager to terminate the claimant’s employment. The County Manager heard the appeal of the decision and upheld the decision to dismiss the claimant.
It was the claimant’s evidence that at the appeal meeting he asked the County Manager to give him a probationary period to see if he could manage better. The claimant understood the employer’s point of view and acknowledged that he was provided with a many chances but he stated that at the time he was not fully informed about his illness or the length of time he would suffer with it. He apologised to the respondent for the difficulties caused and sought a second chance.
Determination:
Having carefully considered the evidence adduced by both parties, the Tribunal is of the opinion that the respondent afforded the claimant every opportunity over a prolonged period to effect an improvement in his attendance record and followed fair procedures in accordance with its own grievance and disciplinary procedure. Taking all relevant factors into consideration the Tribunal finds that the dismissal was not unfair and upholds the decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (reference: r-123623-ud-12/MMG).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)