Complainant

Respondent

Anonymised Parties

An employee

A Hospital

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-00017303-001

06/02/2018

The Complainant was employed by the Respondent hospital as a porter, he commenced employment on 22/04/2002. At the time of his dismissal his salary was €950 per fortnight.

The Complainant was dismissed for his poor attendance record at work.

From the outset in this hearing there were no differing opinions in relation to the facts of the case.

BACKGROUND:

1.       The Claimant began his employment with the Respondent in or around the 22nd April 2002 as a Porter. The Claimant’s first 11 years of his employment with the company, the Claimant’s absentee record was acceptable, and no issues arose during that time. However, in 2013 the Claimant began having difficulty with his level of absenteeism, due to an issue with alcoholism. The Claimant addressed this issue by attending Occupational Health, a 3 week stay in Beaumont Hospital and a further 3 weeks in Barrymore House, an alcohol treatment facility, followed by attending numerous meetings with AA.

2.       Following the successful treatment the Claimant returned to work, however, was suffering a series of medical and health issues which caused multiple intermittent absences from work. As a result, the Claimant entered the disciplinary process which resulted in the issuing of a written warning in September 2016.

3.       The Claimant continued to suffer health problems, and continued to have issues with his attendance at work. The Respondent again instigated the disciplinary process and this resulted in a final written warning being issued to the Claimant on or about the 18th May 2017.

4.       In or around November 2017, the Claimant was invited to attend a meeting on the 14th November 2017, to investigate the Claimant’s attendance record from May 2017. A disciplinary meeting was held on the 27th November 2017. At this meeting, the Claimant outlined to the Respondent that he was currently seeing a number of Specialists in relation to a number of ailments, and sought from the Company time to get healthy and then improve his attendance.   The outcome of the disciplinary hearing was issued on the 7th December 2017, terminating the Claimant’s employment with immediate effect.

5.       The Claimant appealed the decision to dismiss through his SIPTU representative to the CEO. The Hearing was held on the 12th January 2018; in attendance were the CEO of the Respondent Company, a representative from SIPTU, the Claimant and a note taker. The appeal was based on the proportionality of the sanction and that mitigating circumstances were not fully considered. The outcome of the Appeal was issued on the 16th January 2018 upholding the decision to dismiss.

6.       The matter was then referred to the Workplace Relations Commission for Adjudication.

UNIONS POSITION:

1.       It is a fundamental principle of law generally and employment law, that any disciplinary action taken by the Company, but be proportionate, that is to say the response to the conduct, must be measured; the punishment must, fit the wrongdoing. In Frizelle v New Ross Credit Union Ltd (1997) IEHC 137 flood J in the High Court said:

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

2.       Under the current set of facts, the decision to dismiss, was not proportionate, the Claimant has consistently and constantly since 2013 had an issue with his attendance due to his poor health, and while we accept the position that the Respondent has the right to an exception of work, the Claimant has not been able to meet this expectation as a result of his ongoing medical problems. It should be noted that the majority of absences have been supported by medical certificates, and there has never been any question by the Respondent that the Claimant is not genuinely suffering from the illness certified.

3.       We are aware that it is not the place of the Adjudicator to determine what sanction the Adjudicator might have imposed, but rather whether the reaction of the Respondent was reasonable (see Bigaignon v Powerteam Electrical Services Limited (UF 939/2010)). It is our position that the reaction of the company in these circumstances, falls outside what could be considered reasonable. It is a fundamental concept of proportionality that is intrinsically connected to necessity, to put it another way, is to say the objective pursued by the Company must be legitimate, and then the sanction does no more than is necessary to obtain that objective.

4.       Additionally, it is our position that the Respondent acted disproportionality, and failed to attach the correct weight to the Claimant’s 15 years of service. There is a clear principle established in employment law that the length of service of an employee must be considered in effecting a dismissal, for the employer to have deemed to have applied the disciplinary procedure in a fair and reasonable manner. See Johnson Matthey Metals v Harding (1978) IRLR 248.

CONCLUSION:

1.       It is our submission that the dismissal of the Claimant was disproportionate in the circumstances, where the absenteeism of the Claimant was a result of the Claimant’s poor health. It was available at the time of the dismissal to offer an alternative sanction to the Claimant in an attempt to allow time, for the Claimant to address his ongoing health concerns, get himself fit and return to work when ready. Further, the Claimant has long service, over 15 years, and although we admit the attendance record since 2013 has been poor, the reason for the absenteeism is well documented through the Claimant’s sick certs.

2.       The Respondent although moving through the staged disciplinary process, could have acted more compassionately, and with a greater understanding not only of the Claimant’s health but how the dismissal would affect the Claimant.

BACKROUND:

1.       The Claimant commenced employment with the Company on the 8th April 2002 on a permanent contract as a Porter.

2.       The Claimant worked in a team of approximately 25 portering staff who provide services 24 hours a day, every day of the year. The Claimant was employed as part of the portering day shift on a 39-hour week with rostered hours and shift patterns ranging from working from 7am to 8pm, 5 days per week and also working alternate weekends.   Normally on a day shift there would be 10 to 12 staff on duty, with 2 or 3 staff on duty at the weekend.   There are no portering staff on call; in the event of an unscheduled absence, the staff on duty must provide cover and, in some instances, the Claimant’s absence resulted in management having to provide the cover to ensure service was maintained.

3.       The Claimant was dismissed on the 7th December 2017 and was paid eight weeks in lieu of notice. The dismissal was confirmed following an Appeal by the Claimant and his Union to the Respondent’s CEO.

BACKGROUND TO THE CLAIM:

1.       At the time of his dismissal, the Claimant was in receipt of a verbal, written and a final written warning which was active.

2.       The Claimant had received significant support and assistance from his Line Managers, Hospital Management and the Occupational Health Department throughout 2013 to 2015 for two periods of long term absence and regular short-term absences. However as noted in the first formal verbal warning issued to him, despite all the support, no effort to improve his attendance had been forthcoming from the Claimant. That support, including from the Occupational Health Department continued to be given to the Claimant up to his dismissal

3.       The detailed records of the Claimant’s absences have been shared with his Trade Union Representatives throughout the disciplinary processes from early 2016 until his dismissal, with those records showing a consistent average absence of nearly 20%. The pattern since early 2016 was a mixture of short absences of between 1 and 5 days that were certified or uncertified illness absences for a variety of different ailments, absences for medical appointments, absences that were later agreed could be taken as annual leave and some unpaid leave taken at short notice due to various family situations. At no time did the Respondent question the Claimant’s explanations or various medical conditions; the Respondent has always been clear with the Claimant that the difficulties related to the level of his absence and his failure to report his absences correctly. In fact, the General Support Staff absence rates (including the Claimant) were running at nearly twice the next worse department from early 2016 until the Claimant’s dismissal. Compared to his colleagues in portering (other than those on continuous long-term illness absences), the Claimant’s absence was significantly worse with the average among his colleagues at nearly 5% compared to his of nearly 20%.

4.       The Claimant had 34 days of absence between January 26th and 21st April 2016 representing for that period a 40% absenteeism rate. The issue was reviewed at a meeting attending by the Claimant, his Union Representative, Head of Portering Services and Human Resources Business Partner. On foot of that process, on the 11th May 2016, the Claimant was issued with a verbal warning for a period of six months for his absenteeism. The warning clearly indicated that an immediate and sustained improvement was required and that further issues could result in further disciplinary action up to and including dismissal. There was no appeal of this sanction.

5.       The Claimant’s pattern of absenteeism continued after his first verbal warning with a total of eight days absence in July and August. On the 2nd September 2016, the Claimant was issued with a written warning for a period of nine months which made clear that without a sustained improvement in his attendance, further disciplinary sanctions could be applied to the Claimant, up to dismissal. There was no appeal of this sanction.

6.       From the 11th November 2016 until the 2nd February 2017, the Claimant was absent for a further 33 days.   There was also a persistent issue with the Claimant’s failure to follow the correct procedure for reporting his absence to his line manager including not phoning his line manager or HR directly but leaving a message at reception, sending text messages or leaving voicemails; all contrary to the procedures set out in the “How to report for sick leave” section of the Respondent’s Sickness Absence Management Procedures and as explained repeatedly to the Claimant by his line manager and by HR. A meeting was held on the 16th February 2017 attended by the Claimant, Representative from SIPTU, Head of Portering Services and the Human Resources Business Partner to review this matter and it was agreed to adjourn and review the matter further. Due to the Claimant’s annual leave requests and absences for family reasons, this meeting as rescheduled three times until a date was confirmed. In the meantime, there were further issues to be discussed as regards absenteeism and the Claimant’s failure in how he was reporting such absences; details of which were supplied to the Claimant’s Trade Union Representative. Further meetings followed on the 21st April and the 18th May and resulted in the Claimant being issued with a final written warning on 23rd May 2017 for a period of twelve months, which said that the disciplinary process had been to “address and discuss management’s concerns regarding your continued attendance / sick leave absenteeism and your failure to follow correct procedures when contacting your line manager re your absences”. The Claimant was advised that Managers concerns included attitude, no evidence of improvement, lack of insight into the effect of his absence on the efficiency of the portering service, lack of responsibility and ownership demonstrated by the Claimant and failure to adhere to policies regarding absence. The letter concluded by telling the Claimant that “Again, I must re-iterate that the issues discussed continue to be of serious concern for your Line Managers and it was again reiterated that you are required to adhere to Hospital Policy in terms of notifying your manager in terms of any future absences. You were also advised that your attendance / absenteeism rate would continue to be reviewed and monitored and an immediate and sustained improvement in your attendance and adherence to Hospital Policy was required.

The letter ended with a clear warning that “Any concerns / issues ….. could lead to …. Further disciplinary action being taken against you, up to and including dismissal from your post”. It is noteworthy that although the Claimant’s representative indicated at the disciplinary meeting that “they may consider an appeal against the issuing of the final written warning and they reserved the right to do so” no such appeal was lodged.

7.       The Claimant’s attendance had shown no sign of improvement since his final written warning in May and on the 12th October 2017, the Respondent wrote to the Claimant about his levels of absence and invited him to a meeting on 19th October 2017 to discuss same and advised that he could be accompanied by a Union Representative and also reminded the Claimant that his disciplinary meeting was being held in the context where he was currently on a final written warning.

8.       After the notice of the meeting had issued but before it had convened, an incident took place between the Claimant and another staff member on 13th October 2017. The Claimant was placed on paid administrative leave while the Director of Human Resources and the Head of Facilities Management investigated the matter. Investigation meetings were held on the 3rd and 7th November with the Claimant and his Union Representative. On foot of that investigation, the Claimant was issued an informal counselling warning in writing on 4th December 2017.

9.       It was clearly indicated in writing as part of the investigation into the 13th October 2017 incident in a letter from the Director of Human Resources to the Claimant (and copied to the Union Representative, SIPTU, on 27th October 2017 that the two processes were separate and that the process concerning absenteeism was adjourned until the second process was investigated ….”further discussion in relation to your ongoing poor attendance and failure to attend for duty would be deferred until such time as the Hospital has investigated the (13th October) incident … and that a follow up meeting would be arranged separately to address same”. The meeting concerning absence that had been due to take place on 19th October was convened on 14th November with the Claimant and a SIPTU official, Head of Facilities and a member of HR Department. Since his final written warning on 23rd May, the Claimant had 24.5 days in absenteeism. It was outlined the impact of the Claimant’s absenteeism on the portering service.   In response, the Claimant said that he was sick, there was “ nothing he could do and that he didn’t do it intentionally”. The meeting was adjourned in order to review the matter.

10.   On 20th November 2017, the Head of Facilities wrote to the Claimant stating that having considered what had been discussed at their previous meeting ie absenteeism, impact on the portering service, pattering of absenteeism and lack of evidence of improvement, that he was putting the Claimant on notice of a disciplinary hearing on 27th November, the purpose of which was “to hear any response and submissions you wish to make in relation to the above points, prior to a decision being taken on what, if any, disciplinary action may be taken. Please note that disciplinary action (if any) could be up to and including dismissal”. He was informed that the Director of HR would also be in attendance and that he could be accompanied by a Trade Union Representative.

11.   In attendance at the meeting on 27th November 2017, was the Claimant, Head of Facilities, Head of HR and notetaker.   The Claimant confirmed that he understood the purpose of the meeting as set out in the written notice he had received. The Claimant expressed concerns over losing his job and the impact on his family and asked for a last chance. He accepted that his absenteeism was not good but that he had a hereditary medical condition as well as family issues. He offered a guarantee that he would improve. He detailed his various medical conditions but produced no medical evidence in that regard. It was clarified that the Claimant was no longer on administrative leave but was now on sick leave as sick certificates had been received; the administrative leave was related to the investigation into the incident on 13th October.   The Complainant’s SIPTU Official submitted that most of the absences was certified sick leave and asked for the Claimant’s length of service to be taken into account and asked for the final written warning to be extended. The meeting was adjourned to allow consideration of the submissions made at the meeting. Minutes were distributed to the Claimant and his SIPTU official.

12.   Management considered their decision at length.   Occupational Health confirmed that they had continued to engage with the Claimant and that they would inform HR if they had any concerns over his fitness to work. Management in their discussion came to the conclusion that they were unconvinced that there was any realistic possibility of a change in the absenteeism of the Claimant considering the significant level of support he had received along with a series of clear formal warnings; there was no evidence that the Claimant had altered his conduct in any way including the manner in which he reported his absences. The level and pattern of the absenteeism was unsustainable in such a small department which performed such an important function within the Hospital.   They were also unconvinced that the Claimant appreciated the impact on the service despite being counselled on same repeatedly. Their decision was to dismiss and this was communicated in writing to the Claimant on 7th December 2017 with a right to appeal to the CEO within seven days.

13.   A written appeal to the decision was received from the Claimant’s SIPTU Official on 12th December 2017.   An appeal hearing was arranged by email for 21st December 2017. On the morning of the appeal, the Claimant’s Trade Union Representative advised that he Claimant could not attend and asked for the hearing to be rescheduled. The appeal hearing was held on 12th January 2018 with the CEO, Claimant, SIPTU Official and note taker in attendance. The Appeals Procedure is contained in the Disciplinary Procedures and says that “An appeal hearing is not intended to repeat the investigation process but to address specific issues which the employee feels have received insufficient consideration such as mitigating circumstances, procedural deficiencies and severity of sanction”.   The minutes show that the Claimants submission was:

·         That mitigating factors were not fully taken into account ie the impact on his family, recent bereavements, health of family members and the Claimant’s own health complaints which were genuine. The Claimant maintained that his health was now better but did not produce any medical evidence of such.

·         That the decision to dismiss was disproportionate and that his absences were not wilfulness.

·         Procedural deficiencies – there were no submissions made on behalf of the Claimant.

·         The CEO issued the outcome of the appeal in writing on 16th January 2018 which upheld the decision to dismiss on the basis that:

A full disciplinary process was conducted which concluded that the “pattern of absence has a significant impact on the portering services … and on the grounds of probability, most likely to continue;

The consequences of the absences had been pointed out to the Claimant at all stages of the disciplinary process;

No new evidence was presented at the appeal to demonstrate to me that there would be a significant and substantial improvement in the Claimant’s attendance record”;

Satisfied that all mitigating factors were considered and that the decision to dismiss was proportionate.

THE RESPONDENT’S POSITION:

1.       In accordance with the Unfair Dismissals Act 1977 – 2015 (Section 6(4)), the dismissal of an employee shall be deemed not be to unfair if it results wholly or mainly from the capability competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, nor should it be unfair if it results wholly or mainly from the employee’s conduct.

2.       The facts of this case are not in dispute.

3.       Procedurally, the Company conducted a fair process and the Claimant was afforded all benefits of fair procedure, in line with the Company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

4.       The Claimant was given a clear and unequivocal final warning in writing that failure to improve would result in the termination of his employment. The final written warning was not appealed and the Respondent would submit, in line with established practice, that the Respondent is entitled to rely on that final written warning. The essential principle established in Davies v Sandwell Metropolitan Borough Council is that it is legitimate for an employer to rely on a final warning when deciding to dismiss for a further offence, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it.

5.       The Claimant was entirely cognisant of the correct processes, procedures and rules as regards absence as set out in the Sickness Absence Management Procedures and through regular meetings with his line manager and latterly with senior managers and HR representatives. He was also aware of why these processes, procedures and rules were so important as this was discussed with him on numerous occasions as to the impact his absence had on the morale and efficiency of the portering service.   However, the Respondent was not convinced that the Claimant ever assimilated the effect that his actions had on his colleagues and on the portering service.

6.       The Claimant was always informed in advance of formal meetings that he could avail of Trade Union Representation.

7.       The dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.   The negative consequences of the Claimant’s actions on the portering service was significant. The Company’s action in taking the decision to dismiss was in accordance with what a reasonable employer would have done in the circumstances.

CONCLUSION:

1.       Considering the Claimant’s level of repeated intermittent absence and the fact that the Respondent made every effort to support the Claimant in relation to his attendance, the Respondent was left with no option but to initiate disciplinary procedures against him to address same.

2.       It is quite clear from the case law that an employer can discipline an employee for both certified and uncertified absence, with different considerations being applied for intermittent absence as opposed to long term absence. It is quite clear in this instant case that the Respondent disciplined the Claimant for his intermittent absences and failure to report such absences correctly since 2016.

3.       Therefore, we respectfully request that the Adjudicator find that the Company’s decision to dismiss the Claimant was justified and fair and that, accordingly, the present claim should fail.

I have carefully gone over the facts of this case and considered comprehensive submissions from both parties.

The Complainant’s representative correctly points out that it is not the place of the Adjudicator to determine what sanctions he may have imposed but rather to determine if the actions of the Respondent fall within a range of reasonable responses that would have been pursued by a reasonable and fair employer.

Procedurally the Respondent has conducted what they believe to be a fair process and the Complainant was afforded all the benefits of fair procedure, in line with the Respondent’s established policy and in line with the Labour Relations Commission (LRC) Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). In addition to a comprehensive submission the Respondent’s representative also produced a comprehensive booklet of papers at the hearing. At appendix 6 of this document there is a copy of the “Sickness Absent Management – Employee Handbook” and at appendix 19 there is a “Disciplinary Procedure Policy”. In considering all the facts presented at the hearing I must accept that the Respondent at all times has conducted its affairs in this matter exactly in line with their own procedures.

The Respondent cites many cases of dismissal, I believe the most relevant of these is UD 7 /2012Dzierzawska v. Wincanton Ireland, the Complainant in this case had a high level of absence for both certified and uncertified absence and was progressively managed through the company disciplinary process. Ultimately the dismissal was held to be fair, with the Tribunal finding “[An] employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for the absence are genuine…”

After consideration of all relevant matters in this case I cannot find in favour of the Complainant – he was not unfairly dismissed and thus the complaint must fail.

Complaint fails

Unfair Dismissal ; Fair Procedures.