ADJ-00018162

Complainant

Respondent

Anonymised Parties

A General Operative

A Pharmaceutical Devices Manufacturer

Representatives

SIPTU

IBEC

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-00023354-001

20/11/2018

The Respondent is engaged in the manufacture of pharmaceutical devices and employs a significant number of workers at the plant where the Complainant was employed. The Complainant was employed as a General Operative from 11 September, 2002 until 16 August, 2018 when his employment was terminated. The Complainant contends that he was unfairly dismissed from his employment following an absence from work on certified sick leave. The Complainant contends that the sanction of dismissal was disproportionate and the manner in which the dismissal was effected was procedurally flawed and unfair. The Respondent disputes the claim of unfair dismissal and contends that the Complainant was dismissed as a result of persistent absenteeism from work over a sustained period of time. The Respondent contends that the dismissal occurred following a thorough disciplinary process which was conducted in accordance with the company’s established disciplinary procedures.

The Complainant finished night work at 6 am on Friday, 3 August, 2018. When the Complainant arrived home, he had a fall and injured himself. On Tuesday, 7 August, 2018, the Complainant was due to report for work on the evening shift, but as he was unwell he contacted the Occupational Health Nurse employed by the Respondent and was advised to attend his General Practitioner, the Occupational Health Therapist advised that she would contact the HR Department. The Complainant informed his Supervisor that on the advice of the Occupational Health Practitioner, he would be attending his GP and would be unable to attend work that evening, the response to this was okay.

The Complainant on reflection although injured felt that he had no option but to attend work, as he had an active suspension on his record and feared for his job if he did not attend work. The Complainant met the Occupational Health Nurse when he attended for work and informed her that he felt he had no option but to attend work. As the Complainant was working he was approached by the First Aider who in turn called the Stand In Manager as the Complainant looked unwell. The Stand In Manager proceeded to phone the Occupational Nurse, who informed him that she had already seen the Complainant and that he needed to leave work and attend the company GP. The Stand In Manager concurred with this and the First Aider accompanied the Complainant to reception where she signed for a taxi voucher to take him to the company GP.

The company GP immediately sent the Complainant to the local hospital where he was subsequently certified unfit to attend work on 7/8 August, 2018. The Complainant was aware that he had an active suspension on his file that had two weeks left to run before it was removed and it was this fear of losing his livelihood that compelled him to attempt to return to work on 8 August, 2018 albeit while certified by the hospital unfit to work.

When the Complainant presented for work on 8 August, 2018 he approached a Manager, Mr. A, and explained his situation. The Manager informed the Complainant that he was not certified fit for work and would speak to the HR Department but that he was in trouble. The Complainant presented for work on 9 August, 2018 and was called into the Office by the Manager, Mr. A, who issued him with a letter to attend a disciplinary meeting and instructed him to read it and state if he understood it and if not, it would be explained to him.

On 13 August, 2018 a disciplinary meeting was convened, the Complainant was represented by two shop stewards and a trade union official. The Respondent outlined that the Complainant had an active suspension ongoing and had been notified if anything happened in between he would be facing dismissal. The Respondent further outlined the Complainant’s absenteeism record during the previous five years. At this point the Complainant explained once again the series of events that led to his being asked to leave work on 8 August, 2018 at the behest of the Occupational Health Nurse and the Stand In Manager and his subsequent certification by the Hospital. The Complainant’s representative also elaborated on the chain of events that had occurred and the reason he had attempted to attend work on two occasions was that he was in fear for his livelihood.

The disciplinary meeting reconvened on 16 August, 2018 with the same representatives from both sides. The Respondent indicated that they had looked at everything and due to the absenteeism of the Complainant over the previous number of years, he was being dismissed with immediate effect. A letter of dismissal was issued to the Complainant on 17 August, 2018.

The following submissions were made on behalf of the Complainant in support of his claim of unfair dismissal:

· The dismissal was disproportionate when the circumstances of the incident are examined. The incident involved an accident which was outside of the Complainant’s control and though he was injured, he still attempted to attend for work. It was at the behest of the Occupational Health Nurse and the Stand in Manager that the Complainant was not allowed to attend work. Inherent within disciplinary procedures is the concept of behaviour modification whereby a person should be given assistance and encouragement to amend their behaviour and not just have a punitive measure imposed, but most certainly not dismissal for an incident outside of their control.

·         The Respondent did not afford proper consideration to the mitigating circumstances raised by the Complainant in his defence. The Complainant had only two weeks left to run on an active suspension and while injured attempted to attend work on two occasions, to prevent himself from potentially losing his livelihood. The Respondent’s disregarded the medical decision taken by its own Occupational Health Nurse and other medically qualified staff at the local hospital who had certified the Complainant medically unfit to work on 7/8 August, 2018. In applying the sanction of dismissal, the Respondent only considered the Complainant’s record of absenteeism and failed to take into account the mitigating circumstances that led to his absence on these dates. In doing so, the sanction of dismissal was pre-determined, and the Complainant was ultimately denied fair procedures and natural justice.  

The Respondent relied upon the following cases in support of his complaint, namely: Fergal Bryan -v- Iarnród Eireann UDD1857, A Childcare Manager -v- Ac Childcare Facility ADJ-00000775, Bolger -v- Showerings (Ireland) Limited [1990] ELR 184, Molloy -v- Wincanton Ireland Limited [2013] ELR 286 and Hoey -v- Whitehorse Insurance Ireland Limited UD1519/2003.

The Complainant was employed by the Respondent as a General Operative in 2002. Over the years of his employment there were issues with his level of attendance. The Complainant did not fulfil the attendance requirement and his levels of absence were significantly above the company norms. There was no discernible underlying pattern of cause such as would have allowed consideration of reasonable accommodation.

The Respondent’s policy on attendance management includes return to work reviews which are recorded on file, notified disciplinary hearings and union representation and a graduated warning procedure and lapsing provisions. It also included proactive offers of support by HR function and access to an EAP Programme, which the employee cannot be compelled to use. This process is applied consistently to all employees.

The absence pattern that led to the Complainant’s dismissal began in 2016. During the period from 2014 to 2018 the Complainant was absent from work for a total of 153 days with an average absence rate of 13%. An “Awareness Letter” was issued to the Complainant on 28 October, 2016. In that letter it was clearly outlined to the Complainant that the company needed to see an immediate and sustained improvement in his attendance. There followed a series of warnings: Verbal Warning on 7 February, 2017; Second Verbal Warning on 19 July, 2017; First Written Warning on 27 September, 2017; Suspension Without Pay on 6 April, 2018.

The Complainant was warned at the suspension stage in April, 2018 that the continuation of his employment was dependent on his ability to attend work on a regular and sustained basis. He was also informed that in the event of any further absences during the period of the suspension (i.e. the period of six months from 10 March, 2018 to 10 September, 2018) that the company would terminate his contract of employment.

In regard to the absence that led to the written warning on 27 September, 2017, the Complainant advised that he had attended hospital with his sick father. It is well used practice that in appropriate cases an employee can claim force majeure leave – the employee gets a note from the hospital. During the disciplinary process when the Complainant offered this explanation for his absence the company immediately advised him that this was not a disciplinary matter and that he should simply ask the hospital for the relevant note. The Complainant declined to do so, raising grave doubt on the company’s part about the veracity of his account.

The absence which led to the Complainant’s dismissal occurred on Tuesday and Wednesday, 7 and 8 August, 2018. The Complainant stated that he felt unwell on the night of Friday, 3 August, 2018 and that he did not have the money to go to a doctor. The Complainant attended for work on the following Tuesday, 7 August, 2018 but concern on the part of the company led to him being sent to the doctor. The Complainant was certified medically unfit for work on 7/8 August, 2018. Notwithstanding that the Complainant may have been unwell, this was a further instance when attendance was at issue.

The Complainant was requested to attend disciplinary meetings on 13 and 16 August, 2018 in relation to his further absences, where he was represented by his Trade Union. The decision was taken to dismiss the Complainant with effect from 16 August, 2018 on the basis that he had fully exhausted the disciplinary process in relation to his absenteeism and was unable to demonstrate the ability to attend work on a regular and sustained basis.

In summary, the Respondent submits that the Complainant had a problem with regular and routine attendance over a sustained period. His absence profile was significantly worse than company norms. A graduated disciplinary process was applied, wherein the Complainant was represented at all times. The company in these circumstances was entitled to terminate the Complainant’s contract of employment.

The Law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) 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.

…

(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

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The Respondent contends that the Complainant was dismissed as a result of persistent absenteeism from work over a sustained period of time and that the dismissal occurred following a thorough disciplinary process with a series of graduated warnings which was conducted in accordance with the company’s established disciplinary procedures. The Complainant was not in a position to dispute the Respondent’s evidence in relation to the high level of absenteeism during the two-year prior to his dismissal. However, the Complainant contends that the sanction of dismissal was disproportionate, and the Respondent failed to take into consideration the mitigating circumstances relating to his absence from work on 7/8 August, 2018 which ultimately led to his dismissal. The Complainant also contends that the dismissal was procedurally unfair and that the was denied the right to appeal his dismissal.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. 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.

Put very simply, principles of natural justice must be unequivocally applied.”.

Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and 2) whether the dismissal adhered to the principles fair procedures.

In considering the issue of whether or not the Respondent acted reasonably in dismissing the Complainant, I note the Respondent’s evidence that the Complainant had a significant rate of absenteeism during the period from 2014 until his dismissal in August, 2018. The Respondent adduced evidence that the Complainant was absent for a total of 153 days during this period and this absenteeism consisted of a combination of certified and uncertified absences. The Complainant was not in a position to dispute the Respondent’s evidence in relation to his levels of absenteeism during the material period in question. It was not in dispute that the Complainant was progressed through a graduated disciplinary process arising from this absenteeism which resulted in him being issued with a verbal warning, a second verbal warning, a final written warning and suspension without pay.

Based on the evidence adduced, I am satisfied that it was reasonable for the Respondent in the circumstances to invoke the internal disciplinary procedures in response to the Complainant’s levels of absenteeism which had occurred over a sustained period of time. I note that the Complainant was taken through the graduated steps provided for in the internal grievance procedures and was given a Verbal Warning on 7 February, 2017; Second Verbal Warning on 19 July, 2017; First Written Warning on 27 September, 2017 and Suspension Without Pay on 6 April, 2018. The Complainant was notified following the suspension (being Stage 4 of the disciplinary process) on 3 April, 2018 that the continuation of his employment was dependent on his ability to attend work on a regular and sustained basis and was also informed that in the event of any further absences during the following six-month period (i.e. from 10 March, 2018 to 10 September, 2018) that the company would terminate his contract of employment.

It was common case that the Complainant did not have any further absences from work until 7/8 August, 2018 when he was certified medically unfit to work after sustaining an injury in a fall at home.

In this regard, I note that the facts surrounding the Complainant’s absence from work on 7/8 August, 2018 are largely undisputed by the parties. It was common case that the Complainant attended for work on 7 August, 2018 despite the fact that he was feeling unwell and was subsequently instructed by the Respondent’s Occupational Health Nurse and his Manager to leave work and attend the company’s GP. The Complainant was referred to the local hospital by the company GP and was certified medically unfit for work on 7/8 August, 2018. The Complainant, being aware of the precarious situation relating to his continued employment with the Respondent, attended work again on 8 August, 2018 despite the fact that he was certified medically unfit but was sent home again by his Manager. The Complainant was informed on 9 August, 2018 that he was required to attend a disciplinary meeting in relation to his ongoing absences and the decision was taken by the Respondent to dismiss him on the basis that he had fully exhausted the disciplinary process in relation to his absenteeism and was unable to demonstrate the ability to attend work on a regular and sustained basis.

The Complainant has argued that the Respondent failed to take into account the mitigating circumstances surrounding his absence on 7/8 August, 2018 and that the sanction of dismissal was excessive and disproportionate in the circumstances. The question I must decide is whether the actions of the Respondent in dismissing the Complainant fall within the range of actions which a reasonable employer would take in the circumstances.

It is well established that the primary purpose of a disciplinary procedure is not to terminate an employee’s employment but rather to assist the employee in his or her performance. I note that the Employment Appeals Tribunal held in the case of Philip Molloy -v- Wincanton Ireland Limited[2] that: “This is a misconstruction of the purpose of a final written warning. It is just that, a final warning. It is not merely a step in a disciplinary process that must be either passed or skipped. That it is in writing is to mark its formality and the serious intention of the employer. But it must be a warning in respect of future conduct. Its purpose is to let an employee know that he is in the last chance saloon and that no future infractions will be tolerated. However, essential to it is the concept that the employee has an opportunity to reform his conduct or performance and pull himself back from the brink. The claimant was not afforded such an opportunity.”

In applying these principles to the circumstances of the present case, I am satisfied that the Respondent did not afford ample consideration to the mitigating factors proffered by the Complainant during the final stage of the disciplinary process which led to his dismissal including the fact that his absence on 7/8 August, 2018 arose as a result of circumstances outside of his control and that he had made a genuine and reasonable effort to attend work on these dates. I have also taken into consideration that the Respondent did not take account of the significant improvement in the Complainant’s attendance record after he had progressed to the suspension stage (Stage 4) of the disciplinary process and that there had not been any further absences from that point up to the events that transpired on 7/8 August, 2018. I am satisfied that the Respondent did not act reasonably by failing to consider whether dismissal was a decision proportionate to the gravity of the situation, and of the gravity and effect of dismissal on the employee as required in Frizelle -v- New Ross Credit Union Ltd case.

In all the circumstances, I find that the actions of the Respondent in terms of the sanction of dismissal were not within the range of reasonable responses open to it in the circumstances and that substantial grounds did not exist to justify his dismissal at the material time in question.

I must also consider the issue of whether or not the Complainant’s dismissal adhered to the principles fair procedures. In this regard, I note that the Respondent had an established Grievance and Disciplinary Policy in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[3]. I am satisfied that the Complainant was brought through the various stages of the disciplinary process in response to his absenteeism in accordance with the company’s internal disciplinary procedures and that the manner in which the disciplinary process was applied to him up to the stage of the process when he was issued with a suspension on 3 April, 2018 complied with fair procedures and natural justice.

I have also considered the procedures that were applied to the Complainant in relation to the final stage of the disciplinary process following his absence on 7/8 August, 2018. In this regard, I am satisfied that the Complainant was given advance notice of the disciplinary meeting which took place on 13 and 16 August, 2018, was advised of the seriousness of the matters being investigated and was offered representation. However, I find that the Respondent’s failure to take account of the aforementioned mitigating circumstances proffered by the Complainant during the final stage of the disciplinary process and its failure to advise him about his right to appeal the dismissal amounted to significant procedural deficiencies in the disciplinary process.

Having reviewed the evidence adduced before me at the hearing, while I have concluded that the dismissal was unfair I consider that the Complainant made a significant contribution to the dismissal and that it is just and equitable in the circumstances to take this into consideration in relation to the redress to be awarded.

In the circumstances, I find that the Complainant’s dismissal was both substantively and procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

Having regard to the Complainant’s contribution to the dismissal, I do not consider compensation or re-instatement to be an appropriate remedy in the circumstances. Accordingly, I deem that the Complainant is entitled to re-engagement in accordance with Section 7(1)(b) of the Unfair Dismissals Act, 1977, as amended.

On that basis, I order the Respondent to re-engage the Complainant within 6 weeks of the date of this decision into his old position as a General Operative and on the same terms and conditions of employment. I further order that the Complainant should remain at Stage 4 of the disciplinary process on his re-engagement and that a copy of the suspension letter should remain active for a further period of one month following his re-engagement (being the duration of the period of this sanction which remained prior to his dismissal).

I further order that the Complainant’s service should not be interrupted by the period between his dismissal and re-engagement (i.e. the Complainant’s service for that period is continuous for all statutory and allied purposes). Instead that period of time should be treated as a period of suspension without pay from work (i.e. the Complainant’s service for that period is non-reckonable for all statutory and allied purposes).

Unfair Dismissals Acts, 1977 to 2015 – Absenteeism – Disciplinary Procedures - Disproportionate Sanction – Mitigating factors – Re-engagement