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-00013326-001

27/08/2017

The Complainant contends that he was unfairly dismissed because of his sick leave record, and that there were mitigating circumstances which were not fully taken into account.

The Complainant stated that he was dismissed from his job after ten years service on 1st March 2017.   He stated that the Respondent was fully aware that he was suffering from depression due to domestic violence since 2012. He did attend work for periods of time and then would be out sick for periods of time. He stated that the Respondent had failed in its duty of care to him, that they knew he was a victim of domestic violence and they did not assist him in his situation.   He felt that he had the threat of dismissal hanging over him for at least two years and this added to his stress.   He believed that other staff who had addiction problems were assisted and offered help whereas he was not offered help or support even after the new guidelines for employees suffering from stress and depression were introduced in 2016.   The Complainant further stated that he had never been given his file after her made a request through freedom of information, and that the Respondent had never acknowledged the appeal he made in December 2016 against his dismissal.

The Respondent made extensive written, oral and legal submissions summarised as follows:

The Complainant was dismissed by reason of persistent absence from work, without explanation, failure to comply with absence from work regulations and failure to properly engage with the Respondent. The Respondent engaged in lengthy correspondence with the Complainant over a period of 7 years during which he consistently failed to comply with absence from work regulations and failed to report for work. Contrary to the allegations made by the Complainant, during that time the Complainant was given every opportunity to improve his attendance and his interaction with the Respondent. Notwithstanding this, the Complainant consistently failed to reply to correspondence or to properly report to Management. There is a formal Attendance Management Policy and Procedure in place which gives employees certain notifications and warnings, and provides for escalating mechanisms which can ultimately result in dismissal. At each step the employee is warned of consequences and also given an opportunity to respond and appeal. There is also reference in many of the letters to the existence of support services and the offer of referral of any health, domestic or personal problem in confidence to Management, Human Resources or the Employee Assistance Service.   The Complainant was written to on numerous occasions, referring to his sick leave record, from February 2011 up to the time of his dismissal. An exhaustive list of correspondence was cited, the main letters summarised here:

In April 2013 he was notified that he had incurred a total of 150 days sick leave over 31 absences.  

By letter of 18th September 2013 the Complainant was informed that by reason of his poor attendance record he was being considered for dismissal.   Following this, a submission was made by the Employee Assistance Programme in respect of the Complainant’s personal circumstances. At that time, it was considered appropriate that an intervention programme be established and an Agreement dated 30th September 2013 was signed by the Complainant and the appropriate parties. Notwithstanding the signing of this Agreement, the Complainant continued to fail to report for duty.

On 28th April 2014, the Complainant was informed that he was again under consideration for dismissal due to poor attendance. He was given 14 days to make a submission on the issue. On 1st May 2014 submissions were made by the Complainant and the Employee Assistance Officer, arising from which it was decided to pause the proposed dismissal of the Complainant. It was agreed that the process would be paused on the understanding that there would be no further issues with the Complainant’s attendance and/or communication with the Respondent.

On 11th June 2014 the Complainant again failed to report for work and did not communicate with the Respondent. In the circumstances, support for the pausing of the process was withdrawn. Following a submission from the Complainant the process was once again stayed but on the strict understanding that “in order to maintain this stay on such matters proceeding, regular and effective service must be provided on an ongoing, sustainable and long-term basis”.             Notwithstanding this, the Complainant continued to fail to report for duty.

On 1st September 2014, the Complainant was informed that arising from his failure to attend work it had been decided to refer his file for consideration of his dismissal. On 18th September 2014, the Complainant provided an update on his personal circumstances and he was informed by letter dated 24th September 2014 that this would form part of the documentation submitted.

On 13th October 2014 a file was submitted in relation to the proposed dismissal but the relevant Manager was in an acting capacity and did not have the authority to give effect to a dismissal.   In those circumstances, the process was not continued.

By letter dated 17th November 2016, the Complainant was informed that his attendance record continued to be unsatisfactory and that he had taken over 250 days sick leave since September 2014.   He was informed that a file would be submitted recommending his dismissal. He was given 14 days in which to make a submission on the question of his dismissal.   No submission was received in the timeframe and the Complainant was again absent from work from 26th December 2016. He informed Management that he had posted an appeal on 14th December 2016.   However, no appeal and/or submission was received by the Respondent at that time or any time since.

By letter of 13th January 2017 the Complainant was provided with a copy of the submission that was to be sent for his dismissal and he was given a final opportunity to respond by 23rd January 2017. That letter, sent by registered post was not deliverable and not collected from the relevant post office.

By letter dated 30th January 2017 the Complainant was informed that he was dismissed and the dismissal would take effect from 1st March 2017.

It is submitted that the decision to dismiss the complainant was a reasonable decision, following a lengthy process during which he consistently and repeatedly failed to present for work and failed to either provide appropriate certification or to engage in proper and appropriate communication with his employer.   It is argued that the Complainant was given many opportunities over a 6 year period to improve his record but failed to do so. It has been accepted that “an employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for his absences are genuine”(Redmond on Dismissal Law, third edition, para. 16.76).

The Complainant put forward his case that the Respondent did not sufficiently take his personal circumstances into account. Specifically, he pointed to his experience of domestic violence perpetrated against him.   I note the fact that his dismissal was under consideration at least four times in the period between 2013 and 2016 and that he received 3 stays of the process, some of which were actively assisted by the Employee Assistance Officer.     I find on the evidence, that the Respondent acted reasonably in those circumstances.

The applicable law

Section 6 (1) of the Act provides:

“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”.

The Respondent in this case put a cogent argument that there were substantial grounds justifying the Complainant’s dismissal, in that the Complainant was dismissed by reason of persistent absence from work, without explanation, failure to comply with absence from work regulations and failure to properly engage with the Respondent.

Section 6 (4) of the Acts provide:

“(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…

I note that the Complainant’s absence record reached unacceptably high levels i.e. by letter dated 17th November 2016, the Complainant was informed that he had taken over 250 days sick leave since September 2014, and that by his absence, the Respondent would have reasonably come to the conclusion that the Complainant no longer had the capacity to perform the work he was employed to do.

Having taken full consideration of the evidence and submissions in this case, I do not uphold the Complainant’s complaint that he was unfairly dismissed.