Complainant

Respondent

Anonymised Parties

A general operative

A local authority

Representatives

Vivian Cullen, SIPTU

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-00015209-001

23/10/2017

The respondent is a local authority and the complainant was employed as a general operative from April 2002. His employment was terminated on August 2nd 2017 and his dismissal was effective from August 18th. He was dismissed because, having received a final written warning about his absences in September 2016, he made no improvement and, half way through 2017, his absence record was worse than the year before. His complaint is that his dismissal was unfair.

On behalf of the respondent, the SEO made a comprehensive submission setting out the background to the events leading to the dismissal of the claimant. It appears that, from around 2006, the complainant had difficulties attending work regularly. He was absent for between 14 and 39 days each year from 2012 and his absences were intermittent and for a variety of ailments.

In October 2014, the complainant was issued with a final written warning as a result of absences related to his alcohol problem. He attended a residential treatment programme for his addiction and returned to work, but further attendance problems emerged. On September 23rd 2016, the complainant was issued with a another final written warning. On May 19th 2017, he was reported to have been intoxicated at work and an investigation was carried out. A review of his attendance in 2017 showed that he was absent on six occasions for a total of 29 days.

The SEO outlined the nature of the investigation that resulted in the complainant’s dismissal.   I am satisfied that this investigation was carried out in accordance with the authority’s disciplinary policy, a copy of which was presented in evidence.

It is the respondent’s case that the complainant had a bad attendance record over a number of years and, despite repeated warnings, they did not have confidence that he would attend work regularly and provide good service in the future.

On behalf of the complainant, Mr Cullen argued that the decision to dismiss him was disproportionate and that the management failed to take account of mitigating factors contributing to the complainant’s poor attendance record. These include the complainant’s challenging health problems and his struggle with alcohol dependency. Mr Cullen said that on May 19th 2017 when it was alleged that the complainant was inebriated at work, he was suffering from an adverse reaction to medication he had taken for back pain. The complainant claims that he has a back injury and respiratory problems as a result of his working conditions.

Referring to the High Court case of Frizelle v New Ross Credit Union limited [1997] IEHC 137, Mr Cullen asked me to take account of the statement of Mr Justice Flood concerning the proportionality of the decision to dismiss:

“The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint and the gravity and effect of the dismissal on the employee.”

Mr Cullen also argued that the final sanction of dismissal in this case was unreasonable, as the purpose of a sanction is to be remedial and to bring about an improvement in the behaviour complained off, rather than being entirely punitive. He submitted that the respondent could have achieved this objective by means of a lesser sanction and, in this way, the complainant could have been given opportunity to improve.

The case under consideration is one where it is evident that the respondent has dealt reasonably with the complainant over many years. The complainant has struggled with physical and psychiatric health problems which have impacted on his ability to be dependable and attend work regularly. This is the basis of the employment relationship, and, sadly, from the information submitted at the hearing, the complainant is not able to meet this requirement.

At the hearing, there was an open and honest discussion about the events leading to the termination of the complainant’s employment and it was apparent that there remained respect and consideration for him on the part of the respondent. The representatives of the respondent agreed to consider a financial payment as a gesture of good will, and I understand that they have agreed to pay the complainant a sum of €1,500.

For my part, having considered all the circumstances, I find that the dismissal of the complainant was not unfair.

As I have found that the dismissal of the complainant was not unfair, I decide that this complaint is not upheld.

Unfair dismissal, attendance