ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005077

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 18/01/2017

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).

Complainant’s Submission and Presentation:

The Claimant approached the Respondent to request time off for dental treatment in Lithuania but was refused. The reason given was ‘business requirements. However his flight was booked for 28 January and he badly required dental treatment which was more expensive in this State.

On arriving in his home country he sent a sick note to cover him from 1 February. However he was unfit to return to work on this date as he required further treatment. The Respondent wrote to the Claimant advising him that the sick note only covered him until 1 February but he did not receive as he was in Lithuania. On 10 February he contacted the Respondent informing them he would return to work on 12 February.

On his return to work he was invited to an investigation meeting and subsequently a disciplinary hearing which resulted in his dismissal. The Claimant had clean employment record and never had difficulties with the Respondent. It was argued that a dismissal was disproportionate to the breach the events that took place.

Respondent’s Submission and Presentation:

The Claimant has claimed that it was due to financial reasons that he wished to avail of dental treatment in his home country. It is accepted that the dental costs are cheaper there than this State; this still is an application for leave. If the claimant was in severe pain, it is not accepted that he would choose to wait a week to start treatment for a matter that could have been dealt immediately in Ireland at the dental practise that he visited to provide a certificate for his absence from work.

It was incumbent on the Claimant to seek and receive sanction for such absence prior to making travel arrangements. The decision not to grant him sick leave was due to operational requirements and consistent with the Respondent’s policies and custom and practise.

The Respondent cannot be in a position where employees disregard the internal process for seeking time off. Where possible they will support an employee who elects to travel to their home country for treatment and currently do this on a weekly basis for all manner of events. Despite him being put on notice that the matter would be treated seriously in advance of him leaving the State, he chose not to make any contact with the company when his initial medical certificate expired; he was in breach of the company/union policy aged Absence Control Policy for 11 working days and offered no explanation for this in the course of the investigation/discipline process. The Claimant was well aware of what he was doing.

The Respondent also challenged the veracity of statements made in the course of the investigation.

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.

[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 have considered the submissions of both parties. The Claimant has argued about the proportionality of a sanction of dismissal given this employment record with the Respondent. However, from documentary evidence presented by the Respondent the Claimant was given fair warning that to conduct a breach of the Respondent’s Absence Control Policy would be treated in a serious manner. He consciously decided to do so and also failed to advise the Respondent of the length of his absence. The Respondent had no option but to deal with him in the manner they did.

I do not find the claim for unfair dismissal well founded and it fails.

Dated:   16 March 2017