Complainant

Respondent

Anonymised Parties

A sales assistant

A retail multiple

Representatives

Orla Callaghan, Jones Magee Solicitors

Marcus Dowling BL

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-00011749-001

06/06/2017

The respondent is a major retailer with branches throughout Ireland. The complainant was employed as a sales assistant and at the time of his dismissal in May 2017, he had been employed with the respondent for nine years and three months. His employment was terminated due to absenteeism. He complains that, as he was on certified sick leave on every occasion that he was absent, his dismissal is unfair.

Dismissal on May 16th 2017

In the letter confirming his dismissal on May 16th 2017, the respondent set out the reasons for arriving at this conclusion:

“You have been met regarding your overall poor attendance on a regular basis over the past couple of years. You have also been issued with disciplinary action on a number of occasions. On each occasion, you have been informed of the necessary improvement required in your attendance. You have also been informed that failure to show and full and sustained improvement would result in disciplinary action up to and including your dismissal.   Unfortunately, this improvement has not been forthcoming. There was also an issue with unauthorised absence last week when you did not attend work and you did not make contact with the store.

“After careful consideration, I am left with no alternative but to terminate your contract with immediate effect due to your ongoing poor attendance record.”

Attendance Record

Since the commencement of his employment in 2008, the complainant was absent every year for between one day and 17 days. In 2015, he was absent for 35 days. Between January and May 2016, he was absent for 16 days. When he was dismissed in May 2017, he had been absent for nine days that year. The reasons for his absences were various; flu, chest infections, teeth problems, chest pain and “unwell.” His dismissal in May 2017 followed his failure to show up for work at the end of a holiday.   This was the third time that he didn’t return to work after annual leave.

Before he went on holidays, he attended a meeting with the store manager to discuss his absence record and the sanctions that had been imposed. The note of the meeting on April 27th 2017 has a record of   the sanctions:

February 26th 2015: Second verbal warning (following three verbal warnings since 2009)

May 8th 2015:   At a meeting, cautioned about the impact of his absence

May 22nd 2015:   Written warning as a result of 17 days’ absence

June – December 2015:   At four separate meetings, cautioned about his absence

May 25th 2016:   Suspended without pay, following 13 days’ absence between January and May 2016

December 17th 2016: Meeting at which he was informed by the store manager and the HR manager, that he had progressed through all the stages of the disciplinary process, and that, if he was absent again, he would be dismissed.

The Lead-up to the Complainant’s Dismissal

In February 2017, the complainant was absent for two days and in April, for four days. On April 27th, before he was due to go on holidays, he attended a meeting with the store manager and the HR manager.   His absence in 2017 was reviewed and he was informed that he had been given “chance after chance” and that the situation would be discussed with him again on his return from leave. He was due back at work on May 10th, but didn’t turn up, having missed his flight. He was absent also on May 11th and 12th, claiming that he was being “checked out” in hospital at one stage, and that he had bronchitis.   When he returned on May 15th, he had a meeting with the HR manager and the store manager at which he explained that he missed his flight on May 9th, and he was also ill, and this was the reason he didn’t return to work until May 15th.   At the end of the meeting, he was suspended with pay and advised that the next stage in the disciplinary process was dismissal. He was invited to attend a disciplinary meeting the following day and to bring someone with him. He attended the meeting but was not accompanied.

At the first part of the meeting, the complainant was asked to explain his unauthorised absence on May 10th, and he said that he missed his flight back to Dublin.   He said that there was only one seat left on another plane, but that he was travelling with his elderly landlord (who attended the hearing) and that he couldn’t take that seat. The store manager said that, in view of the seriousness of the situation and the fact that he had been warned about his absence just before he went on holidays, he should have taken the warning seriously and returned home. The store manager adjourned the meeting so that he could consider the situation and he again advised the complainant that he could be accompanied by a colleague.

When the meeting resumed, the complainant brought a colleague with him. The store manager informed the complainant that, in his view, having been given numerous chances, he appeared to have a complete disregard for the company’s absence procedures and his employment was terminated with immediate effect. On May 18th, the complainant submitted a letter appealing the decision to dismiss him. On May 23rd, he received a letter from the manager who considered his appeal and his dismissal was upheld.

The Respondent’s Position that the Dismissal is not Unfair

In his evidence, the store manager said that he made every effort to encourage the complainant to come to work regularly. At one point, he moved him from the checkouts to the fruit and vegetable department to see if the change would make a difference. Having been employed with the company for over nine years, he said he was reluctant to let him go, but he had given him every chance. He said that, while most of the absences were covered by medical certs, they reasons were all different and the absences were intermittent and for short periods, which is more inconvenient than someone being out sick for several months.

In April 2017, the store manager said that just before he went on holidays, he made it clear to the complainant that he had reached the end of the line with the disciplinary procedure. When he didn’t come back to work after his holidays, he said that he took the view that the complainant wasn’t taking seriously the warnings he had been given and that the situation wasn’t going to change.

Case Law Referenced by the Respondent

For the respondent, Mr Dowling submitted that the role of the adjudicator in this case is to establish if the decision to dismiss the complainant was within the band of reasonable responses available to an employer in these circumstances. A number of cases elaborating on this principle were cited including Foley v Post Office [2000] ICR 1283, in which Mummery LJ stated:

“The employer, not the Tribunal, is the proper person to conduct the investigation into alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation is a reasonable response.”

Mr Dowling also referred to the High Court appeal of James Reilly against the Governor of the Bank of Ireland [2014] IEHC 241 in which Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.”

Finally, the respondent referred to the 1983 case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Browne-Wilkinson J, in a five point analysis of the interaction between the band of reasonable responses and procedural issues, stated at points 4 and 5:

“(4) in many though not all, cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

“(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”  

From the start of his employment with the respondent, the complainant said that he was conscientious and hard-working, that he got on well with customers and staff and that he was never involved in any disputes, altercations or disagreements in the workplace. He said that he had considerable experience in all aspects of the retail business, having worked as a checkout operator, stocking shelves, in the stock room and finally, in the fruit and vegetable department.

In his evidence, the complainant said that he was only off work when he was sick. He said that he suffers from asthma and that, in the last 12 months of his employment, he felt pressurised to come to work when he wasn’t feeling well. He said that he was assigned to work in the fridges in the store, and that this made his asthma worse. One year before he was dismissed, he said that he came to work when he had a chest infection and when he got home, he got a severe asthma attack and became unconscious. He was taken by ambulance to St Vincent’s Hospital. He was suspended for three days following this absence. He said that he thinks that the company has treated him very badly, not taking his medical condition seriously and expecting him to turn up for work when he is certified as unfit.

Responding to the complainant’s evidence, the store manager said that the complainant did not work in a fridge, but that he was required to bring fruit and vegetables from a cold room out to the shop floor.

The complainant said that he enjoyed his job, that it “anchors me and gives me confidence, as well as a source of income.” His contract entitled him to incremental increases in accordance with his years of service. He said that in his view, a decision was made to “get rid of me and replace me with a younger person on a less favourable contract of employment with a resultant saving to (the respondent).” He said that he believes that the respondent has not taken his medical complaint seriously and has not accommodated him at work that will reduce the likelihood of an asthma attack. Since he was dismissed in May 2017, the complainant said that he finds it very hard to get a job and he was not working in January 2018, at the time of the hearing of this complaint.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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 burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. In the case of this complainant, the conduct which resulted in his dismissal is the respondent’s belief that, having been warned on a number of occasions, and having proceeded through the stages of the disciplinary procedure, he could not be relied upon to attend work on a regular basis.

Section 6(4)(a) of the Act provides that;

“…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

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

In the case under consideration here, the issue is the complainant’s capability – is he capable of regular attendance? The essence of the contract between an employer and an employee is that an employee will come to work regularly on the days they are contracted to do so.   It is accepted that when an employee is ill, they should not attend for work; however, where an illness interferes with an employee’s ability to attend work regularly, a dismissal for reasons of incapacity may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

The complainant was dismissed because he failed to attend work regularly due to a variety of sicknesses. In his evidence at the hearing, the store manager said that the complainant was absent too often for different reasons, and finally, he didn’t return to work after his holidays. He said that he was mindful of the long service that the complainant had with the company, and that he was reluctant to dismiss him. At one point, he said that he thought he might be fed up being on the checkouts and he moved him to work in the fruit and vegetable department, but this had no effect.

The notes of meetings with the complainant that were submitted in evidence show that the prospect of dismissal was front and centre in all the discussions with him, but as the store manager said in his evidence, he was reluctant to reach that point of finality. This is evidenced in the note of a meeting on December 17th 2016, which is headed “Cautioned (complainant) before his dismissal.” This note, compiled by the HR manager, is a rough verbatim record of what happened at the meeting and was uploaded on the company’s central HR processing system.   The note records that the store manager explained to the complainant that,

“…he was finished with discipline, his last stage of discipline was his suspension for three days end of May and has taken three days on two occasions since. (Store manager) said that he should be letting him go but before Christmas not good, so he told him that if he was to be absent again he will be dismissed.   (Store manager) asked (complainant) did he understand what he had said. (Complainant) said that he had a letter from his landlord about the last two days. (Store manager) said that the landlord did not work for (the respondent), he did and gave envelope back to (complainant). I explained again what (store manager) had said no more discipline showed him his file and told him if he was absent again he will be dismissed did he understand what (store manager) and I had said. (Complainant) said yes and (store manager) told him to go back to the sales floor to his dept fruit and veg.”

Christmas passed and in February 2017, the complainant was absent for two days for a chest infection.   In April, he was out sick for four days, due to being “unwell.” On April 15th, the HR manager met the complainant and reminded him about the December meeting at which he was informed that he would be dismissed if he was absent again. The note of the meeting records that the complainant said that,

“…he suffers from asthma and he got a very bad chest infection and the doctor would not let him come back to work even though he wanted to come to work because he had a bad record. I explained to (the complainant) that he always had asthma and you have your medication for that …..I cannot keep speaking to you. I have followed the discipline procedures you were suspended for three days unpaid and (the store manager) told you that if you were out again you would be dismissed.”

As it was Easter week, the store manager did not get an opportunity to meet the complainant until April 27th, just before the complainant was due to go on holidays.   The note of the meeting records that:

“(The store manager) went through every year 2008 6 days, 2009 3 days, 2010 9 days, 2011 10 days, 2012 1 day, 2013 4 days, 2014 17 days, 2015 32 days, 2016 16 days and now 2017 6 days. I have had discipline meetings and I have gone through all the stages of discipline, gave you chance after chance but still absences bad, lots of reasons, rashes, flu, chest infections, teeth problems, chest pain, asthma nothing life-threatening and still 106 days since you started.   I can do no more for you (complainant) you are on holidays next week but I am telling you that when you come back I will be having a serious discipline meeting with you and you are aware of the next stage of discipline. (Complainant) said yes but can you not tell me now. (Store manager) said you are on yous (sic) holidays I will speak to you when you get back.”

The complainant was due to return on Wednesday, May 10th, but didn’t show up. The next day, he phoned his manager in the fruit and vegetable department to say that he had missed his flight and that he would be in on Friday, May 12th. On that day, he phoned to say he had pains in his chest and was going to the doctor.   That afternoon, he phoned to say he was in hospital, “getting checked out.” On Saturday, May 13th, he phoned to say a friend had dropped a cert into the store. The cert said that he had bronchitis. He returned to work on May 15th.

A return to work meeting that day established that the complainant missed his flight back to Dublin on Tuesday, May 9th, but that he didn’t contact the store until Thursday, May 11th. Later in the day, at a meeting with the store manager, he was informed that he was suspended with pay until the next day, when a disciplinary meeting would be held. He was advised to bring a colleague to the meeting.

On May 16th, a disciplinary meeting took place. At the beginning of the meeting, the store manager and the HR manager again went through the complainant’s record and he explained that he was sick each time he was absent, apart from his most recent absence, when he missed his flight. The store manager took a break to consider the complainant’s response and, at the next part of the meeting, the complainant brought a colleague with him.   The meeting ended with the store manager saying,

“Unfortunately, you have left me with no option but to terminate your employment with immediate effect.”

Clearly, there was another option, but this statement reflects the conclusion reached by the store manager that, despite being given “chance after chance” the complainant was not about to address the problem with his attendance. Having been informed on April 27th that he had reached the end of the line with the disciplinary process, his failure to turn up for work on May 11th after his holidays, was a sign that the problem was unlikely to be rectified.

The issue of the reasonableness of the respondent’s actions is well set out in the case referenced by Mr Dowling of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Browne-Wilkinson J, refers to the function of the industrial tribunal, and now my function as the adjudicator,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The circumstances of this particular case are:

In the last two years of his employment, the complainant was absent on 23 separate occasions for a total of 62 days;

His record in the first seven years of his employment was also poor, as he was absent on 35 occasions for 50 days.

Despite verbal and written warnings, numerous cautions and finally, suspension without pay in May 2016, he did not make any improvement in his attendance. In December 2016, despite his record, the store manager said that he would not dismiss him just before Christmas.

Before he went on holidays in May 2017, he was informed that a disciplinary meeting would take place when he returned to discuss his absences.

He did not attend work on May 10th, he did not contact anyone to say that he wouldn’t be in and he was then absent for another three days.

Having considered all the facts, it is my view that the complainant’s failure to attend work regularly placed an unacceptable burden of monitoring and administration on the respondent. His poor attendance was a negative example to other employees and caused inconvenience for his manager and his colleagues. I note that the complainant submitted medical certificates explaining the reasons for his absences, and on no occasion, did the managers suggest that he was not sick. In the case of an employee who has a pattern of numerous absences for a variety of illnesses, the reason for the absence becomes irrelevant. The problem is the intermittent nature of the absence and not the cause.

I find that the manager’s decision to dismiss the complainant fell within the band of reasonable responses expected of a reasonable employer in the circumstances which have been outlined.

Was the Process Fair?

At the hearing into this matter, there was no argument about the extent of the warnings issued and the adherence to the company’s disciplinary procedure. Just less than 12 months before he was dismissed, on May 25th 2016, the complainant was suspended without pay for three days because of his “ongoing poor level of attendance.” This suspension followed a disciplinary meeting at which he was accompanied by a colleague. On May 30th 2016, confirming his suspension, the store manager issued him with a letter in which he stated:

“You have been met on numerous occasions over the past couple of years to discuss this matter. You have been spoke to and issued with disciplines.   On each occasion, the required improvement was made clear to you, and you were informed that should I have reason to speak with you again on this matter, further disciplinary action may be taken up to an including your dismissal.

“Unfortunately, this improvement has not been forthcoming, and after careful consideration, I am left with no alternative but to issue you with a three day suspension unpaid. You are suspended from work on 26th, 28th and 29th of May 2016. The sum of €267.11 will be deducted from your wages on 3rd June 2016. As you are aware the next stage of the disciplinary process following a suspension is dismissal. The company is looking for a full and sustained improvement and should we have reason to speak with you again on this matter you may be dismissed.”

It could be argued that the use of the word “may” in this context was not definite enough and the manager should have instead written, “you will be dismissed.” However, it is clear from the notes of the meetings that followed in December 2016 and April 2017, that the complainant clearly understood that the next stage was dismissal.

The High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for ill health. Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court.   In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

In the case under consideration here, the complainant was dismissed because he was absent too often for a variety of health-related reasons. Although he didn’t turn up for work at the end of his holidays and he neglected to contact the company in accordance with the absence procedure, the substantial reason for his dismissal was his failure to attend work regularly due to ill health. He was informed at numerous meetings and in writing that he would be dismissed if his attendance did not improve. He was advised to be accompanied at meetings and he appealed against the decision to dismiss him. A slight weakness in the process results from the reluctance of the store manager to dismiss the complainant at an earlier stage just before Christmas and just before his holidays. The forbearance shown here could have led to an impression that he might never be dismissed. Others however, might have appreciated the tolerance offered and made an effort to improve. Having examined all the circumstances, I find that the process followed by the respondent was a fair process.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

Dismissal, absenteeism