UD913/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Mehdi Adel - claimant                                             

                                                                                                                                   UD913/2014

against

Keelings Logistics Solutions - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Ms P. McGrath B.L.

Members:       Mr J. Horan

                        Mr F. Keoghan

heard this claim at Dublin on 27th July 2015 and 18th September 2015

Representation:

_______________

Claimant(s) :         In Person

Respondent(s) :     Mr. David Farrell, IBEC, Confederation House, 84/86 Lower Baggot Street,

                               Dublin 2

Determination

The Tribunal has carefully considered the evidence adduced in the course of the two days of hearing. The respondent is a logistics and distribution company operating in North County Dublin. The claimant joined the respondent in or around 31 March 2011. The claimant worked as a warehouse operative and commenced on a probationary basis. The claimant had also previously worked at the warehouse as an agency worker.

The Respondent witnesses outlined a comprehensive attendance control programme (ACP) which operated within the warehouse and distribution centre and which was deemed necessary in view of the sizeable workforce operating on their premises in a 24 hour shift cycle. Great emphasis was placed on the fact that the ACP had been negotiated with the union (SIPTU) and the case was being made that the ACP was fair and reasonable and implemented with the worker in mind.

The ACP operated on a phased basis with trigger points once reached, leading automatically to written and or verbal warnings. There can be no doubt that the workforce, if readily familiar with the ACP, should have known that reaching phase 5 could lead to dismissal. Again the respondent witnesses emphasised the fact that the ACP operated in such a way that each phase allowed for exiting out of the ACP, where attendance records improved – thereby allowing employees to in effect, “wipe the slate clean”.

The Tribunal heard compelling evidence from the claimant as to how and why the claimant became subject to the ACP. The Tribunal has every sympathy for the claimant’s personal circumstances wherein he was the sole provider for his wife and small children, and accepts that certain difficulties arise where an individual has limited home or community supports if a spouse and/or child becomes sick.

However, the Tribunal must also acknowledge that all employees in all workplaces face domestic and personal challenges which have to be dealt with in tandem with meeting workplace commitments and expectations.

It is clear to the Tribunal that the claimant’s attendance record became a source of some concern to the respondent company. It is true that some of the absences were certified and therefore discounted for the purposes of the ACP. However, a consistent record of simply not turning up to work creates difficulties for management and for co-employees which cannot be allowed to continue unchecked. The claimant gave evidence that any absences could be justified after the event but the reality is that the contract of employment cannot allow employees to simply not turn up to work if and when the employee deems the circumstances justify the decision. The law provides for force majeure situations to arise but, save one instance, this was not something being put into evidence, and therefore the Tribunal is simply left with the impression that the claimant’s attitude to non-attendance was not as imperative as his employer might reasonably expect.

The claimant entered into the ACP and worked his way through the five phases of the said programme. The claimant received a verbal warning in December 2012, a written warning in March 2013 (appealed and upheld) and a final written warning in September 2013. It is noted that in less than three years the claimant was absent for up to 55 days on 15 separate occasions – 9 occasions being uncertified. The claimant was dismissed on 11 March 2014 on foot ultimately, of two uncertified sick days taken in February 2014.

The claimant appealed the decision to dismiss and the general manager (BM) heard the appeal. The general manager and indeed the claimant himself stated that this meeting became a meeting more to do with the claimant’s unhappiness in and with the company, and was not really about the absences which had given rise to the dismissal.

The Tribunal fully accepts that the claimant was not particularly happy in this workplace and there was little evidence to demonstrate a particularly sympathetic time in the respondent company. However, the Tribunal has to take on board that there were no grievances lodged regarding how he was treated and therefore this issue cannot form part of the reason for the decision to dismiss.

The burden of proof rests with the respondent to demonstrate that it has acted reasonably in all the circumstances. The Tribunal on balance has to accept that the respondent had a clear and comprehensive programme regarding absenteeism in place. Every opportunity was given to the claimant to mend his hand and that opportunity was not availed of. The procedures were not flawed and were fairly implemented. Accordingly the Tribunal finds that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

(CHAIRMAN)