EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD466/2015
APPEAL OF:
Fiona O'Gorman
against the recommendation of the Rights Commissioner in the case of:
Yves Rocher Ltd
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr J. Flavin
heard this appeal at Cork on 7th January and 11th March 2016
Representation:
Appellant : Ms Majella Graham, Graham Matthews & Co, Solicitors,
Respondent : Ms Sophie Crosbie, IBEC, Knockrea House, Douglas Road, Cork
This case came before the Tribunal by way of an appeal by a former employee against a recommendation by a Rights’ Commissioner reference r-14866-ud-14JOC
The determination of the Tribunal was as follows:
Summary of Evidence
The respondent manufactures cosmetic products for the public. It is a family-run multinational with good employee relations. The appellant commenced employment with the respondent on a contract basis as a general operative in its packaging department in 2002 and in 2005 she was made permanent. Throughout her employment she had worked mainly on the production line apart from a period spent working as a trainer.
The appellant’s former supervisor (the supervisor) described her as a capable and obliging employee. However, she had a persistent and serious problem with absenteeism and frequently failed to notify the respondent of her absences. With the aid of a chart the supervisor detailed those absences from March 2011 up to 10 June 2014 when she was dismissed for absenteeism.
Verbal Warning: In May 2012 the appellant was issued with a verbal warning in respect of 35 days absence over the previous 14 months; those absences included 7 single-day uncertified absences and one two-day absence all of which were uncertified. Her absence record was 5 times the average absence among the staff. The supervisor spoke to her on many occasions urging her to improve her attendance. The supervisor did not want her to lose her job. The appellant was aware of the rules and procedures governing absences.
Around mid 2012 the appellant’s application to change from full-time work to job-sharing was unsuccessful, despite her doctor’s recommendation that it would be helpful for her. The workforce is predominantly female and there was high demand for this option. Four criteria were considered in deciding which applications would be successful. The appellant’s failure in this application was due to her poor attendance record.
On 10 September 2012 the appellant was injured at work when her clothes caught on something protruding from a machine and she banged her head and right ear on a metal frame. Her doctor put her on inflammatory and pain-relieving medication and she continued to work but ultimately she was put on 9 days certified leave later in the month.
Written Warning: Between 7 June 2012 and 13 November 2012, apart from 9 days absence attributable to the accident, the respondent recorded absences on a further 11 days (including 5 single-day absences and 3 x 2-day absences). Of these eight were uncertified. As a result of these absences, the appellant was issued with a written warning on 19 November 2012, which was to remain on his file for 12 months. The appellant’s appeal was unsuccessful.
Final Written Warning: From 30 November 2012 to the end of August 2013 the appellant was absent on 72 days. Apart from two periods of certified leave amounting to 57 days absence and a third absence of six days, the remaining absences included inter alia 5 single-days uncertified absence. The appellant was issued with a final written warning in early September 2013 that was to remain on her file for 12 months and the appellant was informed that further absences might lead to further disciplinary action up to and including dismissal. The final written warning was upheld on appeal.
Within the above period, in early January 2013 the company doctor had assessed the appellant unfit for work due to migraine headaches. He suggested a review in 2/3 weeks and also consulted with her doctor. Thereafter the appellant’s doctor certified her unfit for work until early March 2013. This absence lasted 42 days.
Counselling & Dismissal: Following 2 single-day certified absences in November 2013 a counselling meeting was held with the supervisor and HR Generalist (HRG) the appellant was reminded of her position and that her job was in jeopardy. However, over the period late March 2014 to May 2014 the appellant had 3 single-day uncertified absences, which included a failure to show or notify the respondent of an absence when she had committed to doing overtime.
Prior to her disciplinary meeting on 10 June 2014, the HR Manager (HRM) had reviewed the appellant’s entire attendance record and taken the decision to dismiss her. As usual the appellant was represented by her union official and had the opportunity to be heard. She had been given ample opportunity to improve but had failed to do so.
Following a disciplinary meeting, HRM wrote to the appellant confirming his decision to terminate her employment with the respondent. By that time he had concluded that her ongoing absences and lack of notification was such that it merited that sanction. He had earlier chaired appeal hearings on her earlier warnings and was familiar with her case. A significant number of her absences were single days at either side of weekends. The appellant had at no time given sufficient reasons for her persistent absences. The appellant was counselled and had been informed that her job was in jeopardy yet the absences continued. The appellant had ample opportunity to explain why she was absent. She also was given ample opportunity to improve but did not do so. The respondent expected and was seeking reliability and consistency from its workforce.
At the appeal of her dismissal the appellant informed the appeals officer that she had been in an abusive relationship. That was the first and only time that this was raised by the appellant. Others on the line depended on her presence and her persistent absences presented a problem for the line on which she worked. The respondent has to be able to rely on its staff and it could not rely on the appellant .The respondent denied any connection between the appellant’s personal injury claim against the respondent and her dismissal. The insurance company dealt with the appellant’s case and she received a substantial settlement.
The appellant told the Tribunal that she had been upset when the respondent had not let her change to job-sharing in 2012. She had two elderly parents who got sick. She was still hurt about the manner in which she had been treated. She had been injured in a work accident on 10 September 2012. Her doctor put her on inflammatory and pain-relieving medication and she continued to work but ultimately she was put on 9 days certified leave later in the month. She had also had family bereavement. She did not appeal every warning. The appellant accepted that all her absences were not related to her accident. The appellant had not applied for a voluntary redundancy package offered in May/June 2014. Although it was advertised internally the appellant had not been aware of the offer.
The appellant’s assertion that she had been advised by her supervisor not to mention her accident at the disciplinary meeting was denied by the supervisor. She had been afraid to tell people about the abusive relationship. She left her partner in March 2014. The respondent had not been told this previously.
Determination
Different considerations apply to long term absence as opposed to intermittent absences. Both have different consequences. The respondent’s position was that appellant had a pattern of serious and persistent absences over a period of around twenty seven months. Others on the line depended on her presence and her persistent absences presented a problem for them. The respondent could not rely on her. Some of the absences were due to illness but many were uncertified single day or two-day absences. A variety of reasons were put forward for these absences: she had been refused job share, she suffered migraine, her work accident, family reasons, death of a relative, drowsiness and so on. The Tribunal accepts that the respondent was discommoded by the appellant’s absences and in many cases by her failure to notify it of these absences.
The law on intermittent and persistent absences is simply stated in Dziersowska v Wincantonan UD 7/2002, where the Employment Appeals Tribunal stated:
“An employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for the absences are genuine or not”.
The Tribunal is satisfied that the appellant had received warnings, was accompanied at the meetings and was dealt with in accordance with the respondent’s own procedures and fair procedures. The Tribunal notes that the appellant did not avail of an external appeal.
The Tribunal will now address the appellant’s complaint that the respondent had not referred her to the company doctor before dismissing her. In cases of intermittent absences due to illness, the fact that there is no up-to-date medical reports will not generally be fatal to the employer’s decision and particularly so where the absences are unrelated to a continuing problem. Further on this complaint, the Tribunal notes that subsequent to the company doctor’s advice on 10 January 2013 that “it would be better on balance that she remain out of work at present” and his recommendation for a further review in 2/3 weeks, her own doctor had certified her fit to return to work in early March 2013, after six weeks absence.
The function of the Tribunal is not to substitute its own decision for that of the employer but to determine whether a reasonable employer, in similar circumstances to those of the respondent, would have taken the decision to dismiss. Having considered all the circumstances of this case, the Tribunal finds that dismissal was within the range of reasonable responses ultimately open to the respondent.
Accordingly, the appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-148660-ud-14JOC fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)