ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004334

Complaint for Resolution:

Date of Adjudication Hearing: 18/01/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Respondent’s Submission and Presentation:

The fact of dismissal was not in dispute.

The complainant was dismissed on February 12^th 2016 on two grounds.

The first was persistent irregular attendance and the second was failure to adhere to the respondent’s procedure in relation to engaging with on-going management of his absence and in particular the occupational health service when required by the respondent to do so.

In respect of the respondent’s processing of the matter it submitted that adhered to the full requirements of fair procedure and accorded the complainant the right to trade union representation at all times.

In relation to the complainant’s attendance at work he had a very substantial pattern of absence due to illness; the total number of incidents commencing in January 2013 was forty seven; twenty five of which were certified. The total number of days missed was seven hundred and six.

His attendance was described as ‘intermittent, non-committal and unsatisfactory’.

His dismissal took place on February 2^nd 2016.

Prior to this there had been a total of eight review meetings commencing on March 28^th 2013 and thereafter approximately every three months to review the complainant’s capacity to work. This took place under the company’s ‘Attendance Support Management Process’ (ASMP) and considerable detail was submitted in evidence as to the specific operation of this process in relation to the complainant. He failed to attend eight out of twelve occupational health appointments, including a run of the last four.

He had previously been accommodated with ‘light work’ and no explanation was ever offered by him as to why this did not prove satisfactory.

The situation entered the disciplinary framework in March 2015 only after the complainant’s failure to engage with nine reviews within the attendance management process referred to above (the ASMP).

Eventually, the complainant reached its decision to dismiss based on the failure of the complainant to undertake a more regular engagement with the occupational health service (OHS), or to provide an acceptable explanation for his persistent irregular attendance, even at the appeal stage. He was well on notice of the improvement in attendance which was required. These were fewer than three unscheduled incidents of absence in any six month period and fewer than eight unscheduled days of absence in total.

The respondent had not, until this hearing, heard the explanation by way of defence that the complainant’s psychological difficulties were in themselves the reason for his difficulty in engaging with the OHS.

The disciplinary process was scrupulously fair and was not challenged by the complainant’s representatives, nor was the absence record or the failure to engage with the occupational health service challenged either. The respondent had no reason to believe that the complainant’s pattern of absence would improve and was justified in terminating his employment on the grounds of his incapacity as per the test in Bolger v Showerings Ltd [1990]ELR 184.

Even at the disciplinary hearing the best the complainant could offer was that he ‘hoped to get better soon’. The question for an employer is how long they have to wait for this to become clear and equally in this case how would they know.

Complainant’s Submission and Presentation:

The complainant said the light work offered by the company did not turn out to be that and that he could not perform it.

The complainant was experiencing acute psychological difficulties which, while the cause of his absences were also a contributory factor in why he could not face the engagement with the OHS.

He argued that where a mental health condition may be present an active obligation falls on the employer to establish this and eliminate it as a possible contributory factor.

It argued that a decision maker ought to have had greater regard to the debilitating impact of the complainant’s psychological status as a contributory factor in his failure to attend the OHS.

The company ought to have a system in place which would alert it to the possibility of this happening but it did not have such a system.

Findings and Conclusions

The facts in this case are not in dispute.

The complainant had a very substantial pattern of absence; forty five separate incidences in five years totalling just over seven hundred days. Just over half of the incidences of individual absence were not certified and just under half the total number of days missed were not certified.

Admittedly, there were some very significant individual episodes; one of sixty four days in 2013, another of eighty-five days in 2014, a fifty-one day absence from October 2014 and two episodes (that are recorded as separate in the respondent records but are in fact continuous) of one hundred and forty days absence from January to June 2015 followed by two hundred and forty three days up to February 2016.

Neither the 2014 episode of the second period in 2015 were certified and are described as ‘Absent without Leave’.

The respondent’s case rests on two related arguments.

The first is that the accumulated leave indicates a condition that amounts to justification on grounds of his being incapable of performing the work for which he was employed. It links to that its very substantial efforts to engage with the complainant through its attendance management programme and the occupational health service.

The complainant argues, and really relied exclusively on this argument, that a positive onus lay on the respondent to ‘look behind’ his non-attendance at the review meetings and the OHS for the true explanation for his failure to engage.

There are three pillars required to support a defence that a dismissal is fair.

The first is that an employer has some reasonable grounds to trigger a disciplinary process.

The second is that the process be fair by the standards well established in Irish employment law, and the final one is that the sanction be appropriate and within the range of reasonable sanctions.

It is clear from the rehearsal above of the complainant’s absences that the employer had a sound basis to take action.

Two of the three points relied on by the respondent in Bolger v Showerings (op cit) relate primarily to the dismissal process and generally apply to any dismissal process, whatever the reason.

The third, in the dicta of Lardman J. refer specifically to the incapacity ground and to ill-health being the substantial reason for the dismissal and not a cloak for some ‘ulterior motive’.

In this case it is not in doubt that there was no ulterior motive. The complainant argued that the precise nature of the diagnosis was not known to the respondent. However the complainant’s argument that some greater onus falls on an employer to establish the true cause of a medical condition than falls on the employee to reveal it is pushing the duty of care more than one step too far.

In this case, the evidence of the employer’s engagement was impressive and persuasive. It operated an active process of intervention through its attendance management programme, but even during this period the complainant continued to take time off (in 2014 six episodes totalling fifty seven days, although one episode accounted for fifty one of those). He also failed to attend the OHS when required.

The company is entitled to seek clarity on whether, and when an employee suffering long term illness is likely to return. There is no right under the Act to retain employment indefinitely, and similarly no blame attaches to an employee who through no fault of his own may no longer have the capability to work.

The EAT has held that even medically certified absences may not provide a defence as the issue in Section 6 (4) (a) of the Unfair Dismissals Act, 1977 is the capability of the employee to do the work for which (s)he had been employed to do. The employee is not being dismissed, per se because of his poor attendance but rather when that provides an indication of incapacity to perform his or her job. (Reardon v St Vincent’s Hospital UD 74/1979)

There are no well defined time limits within which a review of a person’s capacity may be triggered but once a year has passed, and of course depending on the circumstances, it would not be unreasonable to commence such a review. In this case the respondent could not be accused of rushing the process as several years had passed before the final phase was set in motion.

And even at the point where the dismissal was in contemplation it sought, but could not get an indication of a prognosis and a possible return to work. The respondent did belatedly provide a response which provided the employer with no greater clarity than before

I find that the respondent acted with considerable patience and its procedures were fair, the grounds of the dismissal were substantially the incapacity of the complainant and that therefore the dismissal was fair.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the dismissal was fair and I do not uphold complaint CA-00006178-001.

Dated:   14^th March 2017