ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003949
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005730-001 | 08/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005730-002 | 08/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005732-001 | 08/07/2016 |
Date of Adjudication Hearing: 03/01/2017
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Respondent’s Submission and Presentation:
The Claimant has had a bad absenteeism record. Between 2009 to 2016 he had a total of 270 days absent from work. He had already received a final written warning and a week’s suspension from work.
In deciding to terminate the Claimant’s employment they considered his failure, despite the Respondent’s interventions, to demonstrate on an ongoing basis the required level of improvement in his attendance. He did not provide a regular and effective attendance that the Respondent could rely on.
In making this decision the Respondent took into account the level and frequency of his absence over the last 17 months. This combined with the breach of trust that is central to the contract of employment following his abuse of the company’s sick leave procedures by travelling to the UK to attend a football match while on a medical certificate stating that he was unfit for work. Notwithstanding that the travel took place at the weekend, his certificate covered the date before and after the weekend.
He was advised that he could appeal this decision but choose to not do so.
Complainant’s Submission and Presentation:
Mr Brady was dismissed for Persistent, absenteeism, and a breach of Companies sick leave procedures, However the decision to dismiss, was excessive and disproportionate, and failed to adhere to company procedures and the principles of Natural Justice. |
Upon termination of Mr Employment Mr Brady did not receive payment in Lieu of Notice. |
Mr Brady did not receive his annual leave entitlement upon termination of his employment |
There a disciplinary hearing on 1 June 2016 to discuss the allegation that he failed to maintain a satisfactory attendance record as required by the warning of December 2015 and that he abused the sick leave procedures by attending a football match in the UK while on a medical certificate. The Claimant admitted that he did attend the match in the UK but did so in his own time by travelling on Saturday and Sunday; not during any that was in work. His absence was genuine and certified by a doctor.
The Claimant’s position is that during the investigation and subsequent warnings issued in December 2015, he was given assurances that if an absence was genuine such as a broken foot (in this case) it would not be counted for the purposes of the warning. If the Respondent had excluded those days as genuine absence then his amount of absence would be reduced from 17 to 3 days. This he believed was a marked improvement in his attendance from 2015.
It was further argued that the dismissal in this case was disproportionate; the Respondent had other option such suspension or other appropriate sanction permitted under the company/union agreement.
Case law was cited to support the proportionality argument.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered the submission of both parties. The matter of the calculation of holidays has been rectified. The Claimant is relying for his defence that he travelled to the UK match in his own time (i.e. Saturday and Sunday); he was covered by a medical certificate and his illness was genuine.
What he does not appreciate is the fact that the Respondent could no longer rely on him to attend his work on a consistent basis; that their business was under pressure that resulted in a redundancy situation; that they have now lost faith in his ability to attend work on a regular basis due to his absences be they genuine or otherwise.
The warning given to the Claimant in December 2015 made it clear that continued unsatisfactory attendance would result in termination of employment.
For the above reasons I do not find the immediate termination of the Claimant’s employment unfair.
I do not find the claim of unfair dismissal well found and it fails.
Dated: 23rd March 2017