ADJ-00009004

Complainant

Respondent

Anonymised Parties

An Employee

A Delivery Service

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-00011210-001

09/05/2017

The complainant commenced his employment with the respondent in 2002.

He was paid €550.78 for a thirty-seven and a half hour week.

The respondent says that the dismissal was fair.

The complainant was dismissed following a poor attendance record over a protracted period.

A full record of his absences was given in evidence. Between 2006 and 2017 there were a total of six hundred and fifty days absent.

In recent years they broke down as follows.

• 2014; Twenty-three days.
• 2015; Twelve days
• 2016; Fourteen days
• 2017; Twenty days.

On March 11^th 2015 the complainant was put on notice that he was at risk of disciplinary action following sixteen periods of absence totalling thirty and a half days. He did not reply to a request for an explanation.

He was written to on April 13^th and invited to a hearing which took place on April 24^th.

In the meantime, he had another two days unauthorised absences and a final written warning issued to him on August 18^th 2015.

The pattern of absences continued and a further notice of disciplinary proceedings issued to him on April 6^th 2016. This disciplinary meeting was put on hold to allow the complainant to see a doctor.

There were problems about getting a medical report which was eventually received on June 29^th 2016.

However, it did not provide an explanation for the complainant’s absences. Accordingly, a decision was taken to dismiss him on October 6^th and this was communicated to him on October 27^th.

He appealed on November 1^st and his appeal was heard on December 8^th.

His appeal did not succeed and notice confirming the termination of his employment was issued on January 25^th 2017. Part of the appeal was that he had missed only one day since the date of the disciplinary hearing on May 17^th.

In fact, the appeal adjudicator found that he had missed nine and a half days.

The respondent say that it fully used its internal procedures for the management and support of employees experiencing health related difficulties. The respondent had no record or medical certification of an underlying condition on the part of the complainant.

The decision to dismiss the complainant was taken only after he failed to show any commitment to address his poor attendance record. Despite being on a final written warning, which he did not appeal, his poor attendance continued.

His rights were fully vindicated throughout the process and the decision to terminate was procedurally and in every other respect a fair one.

The complainant says that the main reason he was dismissed arose from an accident he had at work on January 24^th 2017.

He said he had an underlying medical condition which when it was raised with his employer it was derided as being insignificant.

The complainant had a formidable sick leave record and this was the subject of two disciplinary processes; in April 2015 and May 2016.

He agreed in his evidence to the hearing that the pattern of absence as put to him at the disciplinary meeting on March 11^th 2015 in advance of the disciplinary meeting was correct and he did not contest it.

He did not contradict the respondent submission (when specifically given the opportunity to do so) that he did not provide an explanation for the absences.

The second meeting was adjourned to enable him to submit relevant medical evidence which he failed to do.

The complainant was represented by his trade union at both meetings. He was provided with full details of his sick leave record.

He was given the right to appeal. The basis of his appeal; a particular foot condition had not been previously identified, or certified as the reason for any of his sick leave absences since 2013.

The complainant placed considerable emphasis on the incident on January 24^th 2017 which took place the day before the letter issued terminating his employment. He actually stated to the hearing that ‘the decision followed the injury at work the previous day’; suggesting that here was a causal link.

The appeal hearing had taken place on December 12^th, about six weeks earlier. The decision maker gave direct evidence that he was not aware of the accident when he made the decision.

The suggestion that the decision to dismiss was in some way related to the accident lacks credibility.

Likewise, the complainant’s other explanation, which was that there was a continuous medical condition, was not supported by medical certification

In the meantime, there had been twenty-two absences totalling forty and a half days attributable to various other illnesses.

Whereas the burden of proof falls fully on the respondent to justify the termination of the employment the complainant offered very little to challenge its actions.

I find that the respondent had good grounds to initiate the various disciplinary steps against the complainant.

It conducted a fair process at all stages and the rights of the complainant to fair procedure were fully vindicated.

The decision to terminate his employment on the basis of the evidence before it lay well within the range of reasonable responses in all the circumstances.

I find, therefore, that the dismissal was fair.

For the reasons set out above I do not uphold Complaint CA-11210-001 and it is dismissed.

Unfair dismissal, sick leave.