Complainant

Respondent

Anonymised Parties

{A Clerical Officer}

{A Public Body}

Representatives

Orla Carroll Fórsa Trade Union

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-00019994-001

25/06/2018

The Complainant was employed as a Clerical Officer since 2006. He was dismissed on 9th March 2018 due to his conduct, specifically his absences and failure to comply with the sick-leave policies and his inability to provide regular and effective service to the Respondent.

The Complainant was employed on a fixed-term Temporary contract until he was appointed to a permanent position in 2012.

The Complainant says that his sick-leave dramatically increased following an assault on 10th February 2012. He then suffered from stress, and numerous physical injuries for a period. He also suffers from alcoholism and addiction which were exacerbated by the assault and sick-leave.

In November 2017 the Complainant was furnished details of his attendance. In December 2017 he was informed of his failure to comply with attendance and sick-leave regulations. He attended a disciplinary meeting on 16 January 2018. He was advised he had only attended work for 54 days since 2016.

At the meeting it was recommended that he be dismissed. He was issued with a letter on 15 February 2018 stating he was in breach of the Code of Standards and behaviour for not attending work. From 16 January 2018 to 9 March 2018 he attended work for 10 days in total but did not provide medical certificates for the days absent.

The Complainant did not appeal against his dismissal. He did not recall attending back to work interviews or returning on a phased basis as recommended by the Chief Medical Officer.

The Respondent has said the Complainant has incurred significant overpayments because of his erratic attendance record, failure to comply with the procedures and failure of local management to raise some absences in the relevant time frame.

The Complainant’s representatives say that management were critical of their own processes. The Complainant has refused representation as he was ashamed and embarrassed. His mental health deteriorated. His family member also worked in the Respondent.

The Complainant’s representatives claim that the Respondent made no attempt to treat the Complainant’s condition as a disability. The Complainant’s GP says he suffered from low mood and anxiety and partly to physical issues. In 2017 the dependency of the Complainant on alcohol and misusing substances emerged at his medical assessment. This was partly due to self-managing of the symptoms.

Employers have obligations to be proactive about making appropriate arrangements to allow employees with mental disabilities to participate in employment. Disability can be a condition, illness or disease which affects a person’s thought processes, their perception of reality and their judgement.

The Complainant’s representatives claim the Respondent failed to recognise the Complainant’s disability before dismissing him, failed to recognise and address his condition as a disability, failed to treat his condition as a disability before dismissing him, and failed to make reasonable efforts to provide the Complainant with representation. His medical certs referred to stress, assault and physical injuries. However, at the meeting of 20 January 2018 he advised the Respondent that he was taking anti-depressants and dealing with personal issues. He was getting counselling.

The Respondent failed to comply with its own policies following this meeting. There was no final Chief Medical Officer report. There was no exploration of “stress” and accommodation if there was a disability. Dismissal on grounds of excessive sick-leave is discrimination on the grounds of disability. There were no sick-leave review meetings.

The Chief Medical Officer reports say if is difficult to predict if the Complainant can provide regular service and he intends to discuss treatment options with his GP. There is no evidence that the Respondent sought information on this treatment or to determine if there was an underlying condition, but if the illness may recur. There was no investigation of these issues with a return to work interview or sick leave review meeting until 2017 but absences since 2014 were relied on as the reason for dismissal.

The Complainant went to meetings alone even though the Respondent were aware he was suffering with mental health issues and depression. Attending meetings on his own was not advisable.

The Respondent is satisfied that it has complied with its obligations towards the Complainant and his dismissal was fair and justified. The Respondent relies on S6 (4) (b) of the Unfair Dismissals Acts 1977-2015 which provides that the dismissal of an employee is deemed not to be an unfair dismissal if it results from the conduct of the employee.

The Complainant was employed as a Clerical Officer since 2016. He consistently failed to attend work and to comply with regulations in relation to sick-leave. He failed to report for work and to communicate his absences to his manager. His absences began to increase significantly in 2014. In 2016 and 2017 he had over 200 days of sick-leave each year. He only attended work for 10 days in 2018 until his dismissal on 8 March.

S10 of the Civil Service Code of Standards and Behaviour requires that employees attend work as required and not absent themselves from duty without proper authorisation, to comply with the terms of the sick-leave regulations and act in a manner consistent with the proper performance of the functions of their position.

The Complainants absences impacted his colleagues and services provided. He was notified of the policies and procedures that apply when on sick-leave and signed an agreement to comply with these. The Complainant repeatedly failed to inform his managers when he was on sick-leave, not making contact or providing certificates in breach of circular 12/2015. He regularly requested holiday pay and uncertified sick-pay be used after the event. There are significant amounts of unauthorised uncertified leave where sick-certificates were never furnished. There were substantial overpayments of salary to him which was over 19,000 euro due at the date of his dismissal. He was put on to a scheme in September 2017 where he was paid only on attendance, which caused an administrative burden for his managers.

The Complainant had recent absences from 12th September 2016 to 19th February 2017 and 11th September 2017 to 17 November 2017. In September and October 2017 HR contacted him on 6 occasions. The Complainant indicated he would return to work on 5 dates in September and October 2017 but failed to do so. These periods were preceded by certified sick-leave.

In May to August 2017, medical certificates were provided following requests from HR. The Complainant’s application for retrospective annual leave was denied. There was a mix of certified leave and unauthorised leave. In September 2016 to March 2017 there was again a mix of certified leave and unauthorised absence.

The Complainant was referred to the Chief Medical Officer and Employee Assistance Service.

The Respondent wrote to the Complainant in November 2017 advising that his manager proposed to hold a disciplinary meeting with the Complainant to address excessive sick-leave, unacceptable attendance levels and unauthorised absences which are deemed serious misconduct.

However due to ongoing absences this did not take place. Due to unauthorised absence the Complainant was requested to attend a disciplinary meeting on 16th January 2018 when the Complainant had returned to work. The Complainant attended the meeting without representation. He attributed his poor attendance to stress, depression and some personal tragedies. He said he was obtaining assistance in relation to this. He sought another chance and promised a fresh start. He was advised his attendance was being monitored and any slip would be looked at very severely while this was under consideration. On 30 January 2018 the Complainant went out on sick-leave with a similar pattern of notifying return dates but not adhering to these. Recommendation to dismiss was given. The Complainant did not make representations about the sanction or appeal to the Appeals Board. Dismissal was approved on 8 March 2018, with effect from 9 March 2018.

I have carefully considered the written and oral submissions made by the parties at the hearing. The Complainant has been dismissed due to misconduct in consistently failing to attend work and to comply with sick-leave regulations.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

Arrangements for paid sick-leave for the Respondent’s employees are set out in Circular 12/2015. This provides that employees responsibilities …

“are to provide regular and effective service and have a responsibility for managing their own sick-leave and in particular adherence to the sick-leave Regulations. They must understand that they need to:

Be familiar and comply with the sick-leave Regulation and policy;

Maintain regular contact with the employing organisation during periods of sick absence;

Take all reasonable measures where possible to manage their own health and well being with a view to returning to full health;

Cooperate fully with all referrals to the CMO and or /CSEAS;

Cooperate fully with all rehabilitative measures to facilitate an early return to work”

Relevant line managers responsibilities are….

“Maintain regular contact with individuals on sick-leave;

Carry out a return to work interview after a period of sick-leave;

Monitor and measure attendance patterns;

Conduct a sick-leave review meeting with an employee who has an attendance pattern which is causing concern….”

In addition, if an employee is unable to attend work due to ill health, he must inform his manager within 1 hour of the normal starting time on the first day of absence that he is unable to attend work. Where the absence is 3 days or longer, provide a medical certificate. If the absence is 2 days or less complete a return to work form. For absences of 6 days or more a form to be completed to allow sick leave benefit to be paid to the employer. Where an employee exceeds 7 days self-certified sick leave in a rolling 24 month period, the employee will be notified that his pay will be reduced accordingly and the sum recouped. Unpaid absences are not pensionable service.

If an employee will not attend the CMO or seeks to postpone their appointment without satisfactory explanation, HR may regard the employee’s absence as a disciplinary rather than health matter. If the employee postpones or cancels the appointment on three occasions, it will be referred to HR to examine if it is a disciplinary matter.

The Complainant submitted sick-certificates during his employment due to varying causes. He has high levels of certified sick-leave, and also unauthorised absence extending back to 2014. He had almost 300 days of absence in 2016. The Complainant’s representatives complain that he did not receive return to work interviews or sick-leave reviews by his employer in breach of Circular 12/2015, however it is clear from the events the Complainant substantially contributed this. The Respondent has adduced evidence of the recurring failure of the Complainant to return to work when he advised of a return date. This caused great administrative difficulty and a large overpayment of sick-pay as the procedures provide that staff notify their employer of absences and fitness for work. It also led to delays in clarifying when the Complainant was absent due to sick-leave in order for HR to take action. The Respondent accepts that the absences were not monitored as carefully as should have been the case.

Where there was a failure to produce medical certificates the remaining absences are deemed unauthorised leave. The Complainant was notified that this was a breach of the disciplinary policy and a serious matter.

The Complainant’s absence for gastroenteritis/ anxiety was referred to the Chief Medical Officer in November 2015. The Complainant missed his 2 appointments scheduled with the CMO. He was then assessed by the CMO who said the Complainant had been diagnosed by his GP with a medical condition in 2015. He was attending his GP for a course of treatment. In June 2016 the Complainant attended again with the CMO, but was unfit for work. He was subsequently found fit for work on 25 July 2016. In November 2016, the Complainant was certified fit to attend work but he did not do so without explanation until January.

The Respondent says the Complainant was notified of the seriousness of the situation at the disciplinary meeting on 16 January 2018, when he sought another chance. The Complainant said he would mend his ways. He subsequently went out on sick-leave with the same pattern of non-attendance seen previously.

The Complainant’s representatives say that the employer was aware that he suffered from a serious assault, head injury and broken bones in 2012. The Complainant was suffering from stress and anti-depressants which is a disability and they should have ensured the Complainant had representation. However, when the Complainant returned to work he was certified fit to return without any accommodations sought. Other than in November 2017 when his GP issued a fitness certificate on the express condition the Complainant engages with the Employee Assistance Service.

The Complainant was advised on numerous occasions of his breach of procedures and of the seriousness of the matter. Disciplinary proceedings subsequently commenced in November 2017.

In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 the High Court, set out a list of premises which must be established to support an employer’s 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 interference or conclusion.

3 The employee should be interviewed and his version noted and furnished to a 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.

It is a serious matter for an employer when an employee does not give regular and consistent attendance. The burden falls on colleagues and can ultimately damage the service provided. As stated by Lardner J in Bolger v Showerings (Ireland ) Ltd [1990] /ELR 184 an employer is entitled to expect that as part of the contract of employment an employee would be capable of carrying out the tasks for which he had been employed.

There are substantial grounds for the Complainant’s dismissal which is wholly or mainly related to the conduct of the Complainant. The Complainant was notified of the seriousness of the disciplinary proceedings and his right to representation. There is no breach of fair procedures.

In Bunyan v United Dominions Trust [1982] ILRM 404 the Employment Appeals Tribunal adopted the principle outlined by the UK EAT in NC Watling Co Ltd v Richardson [1978] IRLR 225.

“ The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/ or concluded.”

I find the response of the Respondent to dismiss the Complainant is within the reasonable band of responses given the gravity of the conduct, the length of time over which it extended and impact on the service.

The decision to dismiss is fair and the complaint fails.

The decision to dismiss is within the reasonable band of responses of the employer and the dismissal is fair. The complaint fails.

Misconduct, capacity, breach of sick regulations, dismissal for misconduct fair,