Complainant

Respondent

Anonymised Parties

A Waiter

A Restaurant

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-00011226-001

10/05/2017

The complainant was employed by the respondent as a waiter from the 12th of November 2012 until the 15th of November 2016. He worked 35 hours per week and earned €10.80 per hour.   He claims that he was unfairly dismissed from the employment and he is seeking compensation.

The complainant submits that he was on a final written warning for being late for work but he was dismissed because he could not attend work due to being on medication for back pain. The complainant accepts that he received warnings for being late but he is of the view some of the warnings were not deserved.   He said that other work colleagues came to work later than he did and they were not disciplined in the same way he was.

In advance of the verbal warning in May 2016, he says that he was 2 hours late on 16th of April 2016. He said that he telephoned the restaurant to tell them he was sick and he was asked to come in to cover breaks. He came to work and was sent home because he was sick. The complainant accepts that he was late on occasions for example he was sick, he didn’t catch the bus, he didn’t hear the alarm, he read the roster wrong - the shift started at 2pm and he thought it was 2.30pm. He accepted that it was necessary to inform the employer if he was not turning up in time for the shift. When he knew, he was going to be late on the 18th of March 2016, he informed the manager. He accepted that lateness had an impact on the restaurant in that other employees have had to work much harder. He accepted that he was on a final warning for lateness and he knew that if he was late once in one year he could be sacked.

On the 31st of October 2016, he did not wake up because he had taken medication, in the early hours of the morning, for back pain which had kept him awake earlier in the night. This was the first time he had been late in 5 months since he received the final warning. He said that he did not agree with the decision to hold the investigation into this late as he had a good reason for being late and he was not believed. For this reason, he did not participate in the investigation and he was suspended.     He believes to dismiss him for being late once in 5 months because he had back pain was unfair.

The complainant’s barrister submitted that the decision to dismiss was fundamentally flawed as the complainant had back pain and could not come to work. The decision to dismiss was not warranted. His final written warning was for misconduct and he was warned if there were any further incidents he may be dismissed. Therefore, the question is, was the absence on the 31st of October 2010 an incident of misconduct. It was submitted that it could not have been an incident of misconduct as the complainant was suffering from back pain and could not wake up because he had taken extra medication to relieve the pain.   Therefore, the initial decision to dismiss the complainant for misconduct relating to lateness and absences was flawed because the investigator had established that the complainant did not wake up because of medication he had taken for back pain. The appeal procedure was not a de nova hearing, but based on the finding of facts made by the disciplinary investigator. It was submitted that the decision to dismiss the complainant for this reason was not justified.    

The respondent submitted that the complainant was dismissed because of his conduct. The complainant was late for work on a number of occasions and he failed to follow the respondent’s procedures in notifying the manager in relation to his lateness or absences.

The complainant has been employed in the respondent’s restaurant as a griller since November 2012.

It was submitted that the complainant’s employment was terminated on the grounds of his conduct following a thorough and comprehensive investigation. A disciplinary process was followed during which the complainant was afforded full and fair procedures at all times.

The respondent has a disciplinary policy as well as a sickness and lateness policy in place and they are included in the employee handbook given to each employee at the start of the employment.

The policy requires an employee who is unavoidably delayed for work to contact the manager to notify them of the lateness. It also states the persistent lateness issues could potentially lead to disciplinary action. The sickness policy requires an employee who is unwell and unable to attend work to notify the manager by phone about the absence at least one hour before they are due to start work.

It was submitted that the complainant was well aware of the respondent’s required policies and procedures regarding lateness and absences as he was provided with the employee handbook at the induction training. The induction training also included a discussion about the procedures applicable if he was late or absent.

It was submitted that the complainant had a significant history of lateness and no shows for his shifts. In September 2013, he received a verbal warning due to a failure to attend for work this warning remain on his file for six months as per the respondent’s disciplinary policy.

The complainant was given multiple opportunities to improve his record of lateness and unauthorised absences. He was either late for work or did not show up for work on ten separate occasions between October 2015 and October 2016. On the 6th of November 2015, and following two earlier instances of lateness, where the complainant was 20 minutes late for work and did not inform management in advance, he was called to a meeting and the sanction imposed for the breech of procedures was a recorded conversation by the manager.  He was informed that any further instances of lateness could lead to disciplinary action.

The complainant was late for work again on the 30th of December 2015, the 30th of January 2016, the 18th of March 2016 and the 16th of April, 2016. Following the conclusion of an investigation in relation to his late attendance, the complainant was called to a disciplinary hearing on the 29th of April 2016. He was issued with a verbal warning regarding his lateness and failure to notify the manager following this hearing. The respondent summoned the complainant to a further disciplinary hearing on the 22nd of June 2016,, as a result of an investigation following him being late for work on the 14th of June 2016, and the fact that he did not follow the procedures in notifying management.

Following the disciplinary meeting the complainant was issued with a written warning for arriving late to work and not notifying management in accordance with the procedures.

The complainant was again late for work on the 24th of June 2016. A disciplinary hearing was held on the 1st of July 2016.   The complainant said that he had swapped shifts but that he had not written down the date he was supposed to be in. Following a phone call from his manager, the complainant arrived at work 30 minutes late. This incident occurred two days after the complainant received a written warning so the manager felt it was appropriate to issue a final written warning, notifying him that any further incidents could ultimately result in his dismissal. This final warning was on file for a year.

On the 31st of October 2016, the complainant did not attend work and did not inform management in advance about his absence. An investigation meeting was arranged and the complainant did not attend. He was suspended on pay for refusing to attend an investigation meeting. The complainant attended an investigation meeting on the 8th and 11th of November 2016 and following the conclusion of the investigation, it was decided that the matter should be referred to a disciplinary hearing. The disciplinary the hearing was held on the on the 15th of November 2016. The complainant told the hearing that he had taken some medication for back pain because he was unable to sleep. As a result of the medication, he did not hear his alarm and therefore he was unable to contact the respondent to inform them that he would not be at work. There respondent said this was the first time that the issue of back pain was given as a reason for being late or not attending work. The manager decided because the complainant was on a live final warning and had been absent again and had not followed procedures that he should be dismissed. The complainant appealed the decision to dismiss and that appeal was not upheld.

The respondent’s solicitor submitted that there were substantial grounds justifying the termination of the complainant s employment in accordance with Section 6(4)(b) of the UD Act. The complainant had been given opportunities to improve but he failed to do so. After a full year of a pattern of lateness and non-attendance, the respondent ultimately lost all trust and confidence in the complainant’s ability to either attend work on time (or at all) and his ability to follow procedures when he found himself running late or if he was sick.

It was submitted that it was reasonable to dismiss in the circumstances. The approach that decision making bodies should adopt when addressing claims pursuant to the UD Acts was reviewed by the High Court in Bank of Ireland v. O’Reilly [Unreported High Court 17th April 2015]. In this decision Noonan J approved the decision of Linnane J in AIB v. Purcell [unreported Circuit Court 24th of May 2012] in which she approved the UK decision of British Leyland UK Ltd v. Swift [1981] IRLR 91. In Brithish Leyland the Court of Appeal indicated the Employment Tribunal must look to the band of reasonableness. Lord Denning stated:

“The correct test is this: Was it reasonable for the employers 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 in all of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

It was submitted in applying Lord Denning’s test that the role of the Adjudication Officer is not to substitute itself for the employer and decide if he or she would dismiss. It is to assess whether, objectively viewed, the employer and the employee’s conduct was such that the employee is entitled to redress.

The courts have repeatedly indicated that the fairness or reasonableness of the decision at issue depends entirely on the circumstances of the case and this approach is set out in the decision of Union of Construction and Allied Trades Technicians v. Brane [1981] IRLR 224:

“It is a very sensible approach for Tribunal is to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss? However, Tribunals must not fall into the error of asking themselves the question, ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as a sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more different consideration that all reasonable employers would dismiss in the circumstances.”

In the more recent case of Modupe Abdullah v. Tesco Ireland Plc UD1034/2014, the EAT held that: “In determining whether a dismissal is unfair, the function of the Tribunal is not to consider what sanction it would impose but to determine whether a reasonable employer, in the same circumstances as those which confronted the respondent, would have dismissed the employee or whether the dismissal comes within the band of reasonable responses of the reasonable employer. what is required of the reasonable employer is to show that he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal not disproportionate.”

It was submitted that the case of Francis Pacelli v. Irish Distillers Ltd UD571/2001 is also relevant. The Employment Appeals Tribunal held that its function was to determine the issue on the basis of what it believed a reasonable, prudent and wise employer would have done having regard to the nature of the case and referred to Bunyan v UDT (Ireland) Ltd [1982] ILRM 404 at p 413 where it held that:

“The fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such a decision against what we consider a reasonable employer would have done and and/or concluded.”

It was submitted that the ultimate sanction of dismissal was proportionate in all the circumstances. The respondents initially issued lesser sanctions to the complainant in relation to his lateness and unauthorised absence. However, these sanctions escalated over time as the complainant ‘s conduct in relation to lateness and unauthorised absences did not improve.

As the complainant, did not show up for work on the 31st of October 2016, while his final written warning remained live on his file, it was a reasonable and natural consequence that his further unauthorised absence may result in his dismissal. The respondent conducted a fair and detailed investigation both at the dismissal stage and the appeal stage. The complainant raised issues relating to the treatment of other employees as regards absences. The Managing Director, having considered all the factors and investigated the issues raised, upheld the decision to dismiss as the trust and confidence in the complainant’s ability and willingness to adhere to the respondent’s lateness and absence policy had been lost at that stage.

The respondent’s solicitor referred to the EAT case of Shane Connolly v. Tesco Ireland UD1394/2011 where the Tribunal stated:

“In the context of the claimants’ misconduct, the Tribunal is satisfied that the sanction of dismissal was not a disproportionate one. An employer is entitled to repose trust in his employees… The claimant by his misconduct has broken that trust.”

In relation to fair procedures, the respondent submitted that the respondent had conducted a thorough investigation and a disciplinary process providing full and fair procedure to the complainant as every stage of the investigation. It must be noted however, for a process to be reasonable, it does not have to be perfect as stated in the decision of the Circuit Court in Elstone v. Coras Iompair Eireann (recited in Kerr and Madden on Unfair Dismissal).        

In Loftus and Hayley v. An Bord Telecom [O.J.I.S. Lab. L 135] Baron J in the High Court stated that the question to be determined is:

“not whether the plaintiffs were deprived of procedures to which there entitled, but whether the denial to them of such procedures is such that the (employer) must be deemed to have failed to establish [the stated of bases of that dismissal] as the whole or main reason for and justifying their dismissal.”

The solicitor submitted that it is hard to conceive of a more thorough or fair procedure than that which the respondent exercised in relation to the complainant. At every stage the complainant was made aware of his rights in relation to being accompanied to meetings and appealing the disciplinary sanctions imposed. He was also provided with full documentation in relation to each meeting attended at every stage of the disciplinary process as part of the respondent’s determination that the process be as fair and transparent as possible. In addition, the investigators appointed to conduct the investigations and impose sanctions were managers from different restaurants with no prior involvement with the case.    

I was submitted that the dismissal of the complainant was reasonable and necessary in the circumstances.              

The dismissal is not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of misconduct. The complainant was on a final written warning due to persistent late attendance, absences and his failure to notify the employer of his impending lateness or absence constituting a breach of the company’s policy. The complainant does not dispute that he was on a final written warning for the reasons stated. However, the complainant contends that the incident of non-attendance which led to his dismissal was due to an illness and the penalty of dismissal was not warranted and totally disproportionate when all the circumstances of the case are taken into consideration.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. …

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

……

(b) the conduct of the employee

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I note that the complainant did not attend work on the 31st of October 2016 for his roster which commenced at 10.30 am and he only contacted the respondent after 11.15 am when he awoke and found a number of missed calls from the restaurant. It was unfortunate that the complainant was unable to wake up in time due to the medication he took during the night for back pain. However, he was well aware he was on a final written warning. He was also well aware from the final warning, that if there were any breaches of the respondent’s policies in relation to late attendance, absences and notification of same to the employer, he could be dismissed. The respondent could have imposed a lesser sanction than dismissal in the circumstances, but it was concluded following an investigation that the complainant had been given sufficient opportunities to correct his attendance behaviour and that dismissal was the appropriate sanction as he was on a final written warning. However, it is not my function to determine if the dismissal was the correct sanction but to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases. I am guided by the jurisprudence of the High Court in the case of Bank of Ireland and the other EAT decisions cited above. I believe, that the way the respondent conducted the investigation, disciplinary hearing and appeal in this case fully complied with fair procedures and natural justice. In all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal. Accordingly, I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act was not unfair.    

I find that that the dismissal was not an unfair dismissal within the meaning of the Act.

Unfair Dismissals Act, warnings, final written warning, timekeeping, absences, failure to follow company policy.