ADJ-00006017

Complainant

Respondent

Parties

A Local Authority Employee

A Local Authority

Representatives

SIPTU

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008306-001

22/11/2016

The complainant had been employed as a General Operative with the local authority on a salary of €1,421 per fortnight.

He had a record of sick leave absence over a protracted period.

He had also been the subject of a number of warnings as to his future attendance.

Following another incidence of absence he was dismissed.

The complainant has a long history of absence attributable to sick leave dating back to 2012 and his attendance was particularly poor.

In 2014 he was disciplined arising from his absences. These were as follows; in 2011, 49 days on 12 occasions, 2012, 31 days on 11 occasions, and 2013, 76 days on 13 occasions.

This resulted in a written warning in early 2014 and later, as a result of non-attendance related disciplinary issues he received a final written warning in December of that year.

In 2014 his absence was 96 days on three occasions.

The respondent says that at that time its Occupational Health Provider could not identify any ‘active medical issues’ that would preclude regular attendance at work. Following a further disciplinary process it was decided to re-issue the final written warning.

However, in 2015 his pattern of attendance continued to be poor; a total of 21 days on five separate occasions; attributed to a wide variety of ailments.

In August 2015 he was again the subject of a re-issued, final written warning and was suspended for two weeks although implementation of this was delayed until December to allow the complainant to improve his attendance.

However, in 2016 the patter of poor attendance continued; between January and May a total of 45 days on 11 separate occasions.

He was again subject to disciplinary action in the course of which medical opinion was considered. But at the disciplinary hearing in June 2016 there was no evidence in the medical report of any health condition that would explain his pattern of attendance.

He was dismissed on July 8^th and at the appeal a case was made by his union that he did have an underlying condition (depression) which should be taken into account.

The respondent adjourned the process and then referred this for independent medical verification. The medical opinion was that the complainant did have ‘a mild depressive illness’ but it also indicated that early retirement (on grounds of ill health) would be ‘premature’.

The Appeal decision maker concluded that the respondent could have no confidence in the respondent attending regularly in the future and his appeal was dismissed and the termination of his employment took effect on September 16^th 2016.

The factual narrative outlined above was not disputed by the complainant’s trade union.

However, it argued that while the respondent had behaved very reasonably in handling the matter in the early stages this approach was abandoned at the time of his dismissal.

It referred to the diagnosis of ‘mild depression’ as providing an explanation for the absences towards the latter stages and submitted that once this was being addressed his pattern of attendance would improve in the future.

It submitted that the sanction of termination of employment was too severe having regard to this new development.

I have considered all the relevant evidence that was laid before me, both before, and in the course of the hearing.

The onus under the Act falls on the employer to justify the dismissal.

There are three grounding pillars involved in an assessment of the fairness of a dismissal.

In order for a dismissal to be fair there must initially be some significant grounds to justify disciplinary proceedings against the employee related to performance or conduct.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known.

They are referred to by such terms as fair procedure and natural, or constitutional justice. Many, if not most cases coming before an Adjudicator are argued on the basis of facts that are generally not in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

In this case, as the complainant has not disputed the facts but contests the final sanction on the basis that it was excessive and did not sufficiently take into account what he said were his changed medical circumstances.

Finally, the disciplinary sanction must be within the range of sanctions a reasonable employer would apply; in this case the termination of employment.

Looking at these pillars and applying them to this case one sees the pattern of attendance which has been outlined above as providing such grounds. The complainant had a very high, chronic pattern of absences over a prolonged period.

In my view the respondent demonstrated considerable restraint and patience throughout the very extensive period when it was dealing with the complainant.

This applies also to the second pillar and I can find no flaw in its application of the requirements of fair procedure at any stage. The respondent is a large public employer and operates in a highly unionised environment so all necessary rights were observed in the processing of the various steps of the process.

The complainant does not dispute this in respect of the earlier stages of the process but suggests that the respondent may have lost patience towards the end and did not adequately take account of the emerging medical evidence at the time the final decision to terminate was in contemplation.

I do not accept this argument.

I note that when the suggested new material was raised at the final stage the respondent adjourned the decision making process to allow for independent medical evaluation and certification of the new information. There was no rush to judgement; something that characterised the respondent’s general handling of the matter.

When the medical opinion came it was ambiguous, at best and unhelpful and offered no comfort to the respondent that the pattern of attendance since 2011 was likely to improve.

While the complainant’s representative submitted to the hearing that his member should be given one final chance in the light of the emerging medical evidence I have to consider whether the respondent’s actions in terminating the employment at the time it di and on the basis of all the facts and evidence available to it was reasonable.

As noted above all that the respondent is required to show is that the decision on sanction was within the ‘band of reasonable responses’ as it is described.

The Circuit Court s decided in its decision in Allied Irish Banks plc v Purcell [2012] 23 ELR 189 in which Linnane J. stated as follows:

The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably another view’.

Given the facts available to the decision makers in this case both at the initial and appeal stages I find that they fell comfortably within these criteria.

Accordingly I conclude that the respondent has discharged the burden of proof required by the Unfair Dismissals Act and I find that the dismissal was fair for the reasons set out above and the complaint fails.

For the reasons set out above I do not uphold complaint CA-00008306-001 and it is dismissed.

Unfair dismissal, medical reports.