UDD176

This is an appeal by Sima Maliauskas (the Appellant) against the decision of an Adjudication Officer in his claim that he had been unfairly dismissed by his former employer Keelings Logistic Solutions (the Respondent).

In a decision dated 8^thApril 2016 the Adjudication Officer found that the Respondent’s decision to dismiss the Appellant was fair and the Appellant’s complaint was not upheld.

The Appellant was employed from 23^rdMay 2005 until his dismissal on 6^thAugust 2015. The fact of dismissal is not in dispute.

Summary of the Position of the Respondent

The Respondent contended that the dismissal of the Appellant was fair and reasonable and occurred by reason of unacceptable conduct by the Appellant.

The Respondent operates an Absence Control Programme (ACP) which is collectively agreed with the Trade Union representing staff in the employment including the Appellant and has been in place since 2007. The agreed objective of that programme is to maintain absence levels at or below 3%. Absence levels in 2016 were above 8.42%.

The ACP is a staged process whereby a person’s absence pattern can lead to progressive phases of warnings. A final written warning may be issued only at phase 4 of the ACP and at phase 5 the person may be considered for ‘capability’ dismissal. Where a person reaches a particular stage in the process a period free from absence leads to a ‘step back’ in the procedure.

The Respondent contends that at the end of 2013 it sought to engage with the Trade Union in order to review the ACP but subsequent engagement did not produce an agreement to alter the ACP process.

The HR manager of the Respondent stated in evidence that it commenced a process of review of those employees with the highest levels of absence in April 2015. The Appellant was one such employee.

The Respondent stated that the Appellant was absent on 66 occasions between 2005 and 2015 and that 31 different reasons were submitted by the Appellant for such absences. In addition the Respondent submitted that the Appellant was absent on seven occasions due to compassionate leave afforded on the death of a close family member. The Respondent asserted to the Court that the Appellant had significant accident related absences in 2008 – 2009, 2009 – 2010 and 2014 – 2015 and stated to the Court that such absences, while occurring in years when the Appellant did not exhaust his sick pay entitlement, were not taken into account by the Respondent in coming to its conclusions as regards the absence patterns and levels of the Appellant.

The Respondent submitted to the Court that on eleven occasions the Appellant was absent on sick leave directly before or after annual leave. The Respondent also submitted that the Appellant was absent on sick leave on or directly after his birthday on four occasions in the ten years of his employment.

The Respondent submitted to the Court details of the absence pattern of the Appellant which the Respondent contended demonstrated repeated temporary transformations in the Appellant’s absence pattern when he entered the ‘warning’ phase of the ACP and the subsequent resumption of absences as soon as that phase of the ACP had lapsed.

The Respondent outlined in evidence details of the process engaged in following the initial analysis in 2015 of the Appellant’s patterns of absence during his employment. That process involved an invitation to the Appellant dated 21^stApril 2015, following his return to work after an absence on 20^thApril 2015, to attend a meeting on 23^rdApril 2015. The Appellant on that date raised a query as regards an alleged grievance he had raised in October 2014 alleging discrimination by a named colleague and stating that he believed he was being discriminated against by the Respondent’s HR Department. The Respondent’s HR Department responded on 23^rdApril 2015 to advise that when the Appellant raised a matter in October 2014 he had been written to seeking clarification but that the Appellant had not responded.

The Respondent stated that on 22^ndApril 2015 the Appellant left the workplace without permission saying that he was stressed. This was followed by medical certificates. The Appellant was, on 28^thApril 2015, referred to the Respondent’s occupational health specialist. The Appellant attended that specialist on 11^thMay 2015. That specialist confirmed to the Respondent on 13^thMay 2015 that the Appellant was fit to attend workplace meetings and confirming her advice to the Appellant to attend the workplace to resolve his alleged workplace issues.

The HR Manager of the Respondent stated in evidence that, in line with the normal practice of the Respondent, the Appellant was then invited to meet with the HR manager of the Respondent. That meeting took place on 21^stMay 2015. The HR Manager stated in evidence that at that meeting the Appellant stated that the Respondent’s doctor was biased and that the Respondent was ignoring his grievances. The HR Manager subsequently wrote to the Appellant on 21^stMay 2015 inviting him to raise any grievances which he felt he had and also stating that he would be sent to another doctor. The Appellant attended another Doctor on 28^thMay 2015 who advised that the Appellant should engage with the Respondent to resolve any issues he believed were outstanding.

The Appellant attended a formal investigation meeting on 11^thJune 2015 with a manager of the Respondent. The Appellant was represented by a Trade Union representative.

The manager carrying out the investigation issued an investigation report recommending that the Appellant be put forward for a disciplinary meeting. The investigator identified the matter under consideration as ‘Alleged misconduct – manipulation of company policy and misuse of company sick pay’.

The Appellant attended a disciplinary meeting on 24^thJune with a manager of the Respondent. He was accompanied by a Trade union Representative. The Appellant was subsequently absent from work and was asked to attend the Respondent’s doctor again. The respondent’s doctor found that the Appellant was fit to resume work on 5^thAugust but he did not attend for work that day. On 6^thAugust the Respondent wrote to the Appellant advising him that the disciplinary meeting had resulted in a finding that he should be dismissed. That letter also advised the Appellant of the means to make an appeal.

An appeal hearing was held on 20^thAugust 2015 where the Appellant was accompanied by a Trade Union representative. The Appellant was advised on 28^thAugust 2015 that the decision to dismiss was upheld.

The Respondent contended to the Court that the decision to dismiss was a proportionate response to persistent manipulation of the Company’s sick pay and ACP policies and abuse by the Appellant of the compassionate leave policy. The Respondent further contended that the procedure adopted by the Respondent was in line with its published and agreed disciplinary policy and that the procedure was operated fairly.

Summary of the position of the Appellant.

The Appellant contested the assertion by the Respondent that he had availed of seven instances of compassionate leave and stated in evidence that he had done so on five occasions only.

The Appellant did not dispute the detail of other absence patterns and instances put before the Court by the Respondent and acknowledged the contention that he had been absent on 66 occasions totalling 316 days.

The Appellant contended that the Respondent operated an Absence Control Policy (ACP) which provided for a phased process wherein absences were considered by the Respondent and acted upon if necessary. The Appellant contended that the Respondent could not undertake a disciplinary process outside the ACP but that that it had done so in this case. The Appellant contended that the procedure followed by the Respondent was consequently unfair.

The Appellant contended that he had not been made aware that his absence pattern could give rise to a risk of dismissal. The Appellant contended that his absences were dealt with throughout his employment under the ACP and that he had never been accused of dishonest behaviour.

The Appellant asserted to the Court that he had no control over when he is ill but that he had always followed procedures when he was ill.

The Appellant contended that a grievance he had raised in 2014 alleging discrimination had not been followed up by the Respondent and that Respondent had failed in its duty of care to him.

Discussion and conclusions.

The Court has considered in detail the written and oral submissions of the parties.

The extensive absence pattern of the Appellant is not in dispute and neither is it disputed that his absence pattern regularly resulted in his being advanced through the phases of the ACP policy. Advancement through the policy brought to the Appellant’s attention the fact that his absence levels were a cause of concern to the Respondent.

The Court notes that the Respondent decided in 2015 to review the absence patterns of those employees with the highest absence levels in the organisation. The Court further notes that this review led to a decision to investigate the absence patterns of the Appellant. That investigation was followed by a disciplinary procedure. All of the investigative and disciplinary procedures employed by the Respondent were those which are the subject of collective agreement in the employment and circulated and made known to all employees including the Appellant. The Court is satisfied that the procedures were operated in a fair manner having due regard to the Appellant’s entitlement to representation and to natural justice.

The Court cannot accept that the Respondent was not entitled to review the absence patterns of those of its employees with high levels of absence. Neither can the Court conclude that where issues of concern were identified in that review the Respondent was not entitled to investigate the matter. The Court accepts that the Respondent, notwithstanding the existence of the ACP, is entitled to initiate its disciplinary procedure whenever an investigation concludes that circumstances are such as to warrant the operation of such a procedure.

The Court can but observe, noting the absence history of the Appellant, that the ACP was clearly incapable of addressing a situation where the Respondent was faced with an extraordinary level of absence which, if repeated widely in the enterprise, would have been wholly unsustainable. The Court however accepts that it was not the level of absence which gave rise to disciplinary procedures in this case but rather it was alleged misconduct through manipulation of company policy and misuse of company sick pay which was at issue following an investigation. The absence levels of the Appellant and a contention of manipulation and misuse of policies by him are distinct matters.

The Court finds that the Respondent was entitled to address the matters of alleged manipulation of company policy and misuse of company sick pay through the clearly enunciated and collectively agreed disciplinary procedure which afforded full and adequate opportunity for the Appellant to state his case and to defend himself comprehensively. The Court further finds that the procedures were employed fairly and correctly in this case.

The disciplinary process concluded that the Appellant had abused the systems in place in the company and that the trust and confidence necessary to sustain the employment relationship had been eroded. The Respondent, through the disciplinary process, concluded that the Appellant was guilty of gross misconduct in that he had deliberately manipulated company policy and misused the company sick pay scheme. The Respondent determined that dismissal was the appropriate and proportionate response to the findings of the disciplinary process

The Court has found that the investigative and disciplinary processes employed by the Respondent were fair and were conducted appropriately. The role of the Court therefore is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the findings of the disciplinary process. The Court concludes that the decision to dismiss was within that range in this case.

The Court finds that the Appellant was not unfairly dismissed.

Determination

The Court determines that the Appellant was not unfairly dismissed and the Appeal fails.

The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
7th February, 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.