FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DUBLIN CITY COUNCIL (REPRESENTED BY MICHAEL MAC NAMEE ,B.L.,INSTRUCTED BY SAMANTHA GILL, SOLICITOR - AND - STEPHEN MAGUIRE (REPRESENTED BY PATRICK MARRON,B.L., INSTRUCTED BY MC CARTAN AND BURKE, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No: ADJ-00007192 CA-00009679-001
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 16 May 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4 December 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr. Stephen Maguire against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 in a claim of unfair dismissal by his former employer, Dublin City Council. The Adjudication Officer found that the Complainant’s complaint was not well founded and therefore his claim did not succeed.
The claim under the Acts was referred to the Workplace Relations Commission on 13thFebruary 2017.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Stephen Maguire will be referred to as “the Complainant” and Dublin City Council will be referred to as “the Respondent”.
Background
The Complainant was employed as a Waste Management Operative with the Respondent. He commenced employment in May 2007 with responsibility for waste disposal and street cleaning. He was dismissed on 2ndDecember 2016. The Complainant had received a number of warnings for absenteeism as follows:-
- •July 2008 formal warning for 7 unauthorised absences.
•2nd April 2009 written warning for 14 days certified sick leave and one day uncertified,
•26th May 2009 he was removed from the sick pay scheme for twelve months for alleged abuse of the uncertified sick pay scheme,
•1st June 2010 exclusion from the sick pay scheme extended for a further twelve months,
•23rd July 2010 final written warning to expire after twelve months for late arrival into work and intermittent absences,
•1st September 2011 final written warning to expire after twelve months for sick leave absences,
•April 2012 to March 2014 it was noted that there was an improvement in his absence record, he had seven days absence in first 12 months and 12 days in second, he became a father on 23rd October 2012, and had an injury at work in March 2013 for which he did not take any sick leave,
•19th August 2014 final written warning to expire after twelve months for two weeks certified sick leave in May 2014 and one week certified at end of July 2014,
•5th March 2015 final written warning to expire after twelve months for 21 days sick leave since August 2014,
•24th March 2016 final written warning to expire after twelve months plus 2 days suspension due to 12 days certified sick leave in 2015 [25 days at end of January/beginning of February 2016 disregarded as arose from accident at work], this warning was appealed however it was unsuccessful,
•7th September 2016 placed on paid special leave, referred to Corporate Health Ireland for assessment due to 17 days absence from April 2016,
•11th October 2016, he was informed that his employment would be terminated from 24th October 2016 due to his unsatisfactory attendance record throughout his employment,
•appeal hearing 24th November 2016, unsuccessful,
•2nd December 2016 his employment terminated.
Summary of the Respondent’s Case
The Respondent was represented by Mr Michael MacNamee, B.L. instructed by Samantha Gill, Solicitor, Dublin City Council’s Legal Department. Mr MacNamee stated that the Complainant was dismissed for continuous absenteeism constituting a failure to provide the Respondent with regular and efficient service. In response to the Complainant’s argument that the Respondent should not be relying on the Complainant’s expired warnings to justify its decision to terminate his employment, Mr MacNamee made reference to the case ofDiosynth Ltd. v Thomson[2006] IRLR 284 where the Scottish Court of Session ruled that a dismissal was unfair where an expired warning was relied upon to effect a dismissal where it was accepted that the dismissal would not have occurred but for the warning. He said that in the later case ofAirbus UL Limited v Webb[2008]IRLR 309, the U.K. Court of Appeal took the opportunity to clarify the ratio inDiosynth.That decision was not authority for the proposition that an expired warning can never be taken into account, but only where the expired warning was the principal reason for the dismissal. He referred the Court to paragraph 55 of the judgement of Mummery L.J. which analyses previous decisions includingDiosynthandmakes the following observation:-
- “I agree that in those cases, after the time limit imposed on the penalty had expired, the penalty itself was spent. The warning penalty ceased to be relevant as such. However, neither judgment explored the possibility of the earlier underlying misconduct, in respect of which the warning penalty was imposed, itself being and surviving the spent penalty as a circumstance, which is relevant to reasonableness or unreasonableness of employers later action in dismissing the employee for similar subsequent misconduct. Although the warning penalty and the record of it on the file was time-limited, the misconduct in respect of which it was given was not itself time-limited. The warning ceased to have effect as a penalty which could be relied on as a conduct reason for dismissal. It did not necessarily follow that the misconduct, in respect of which the penalty was imposed, ceased to have any relevance to the reasonableness of the employer’s response to later misconduct. The previous misconduct was a fact which was not necessarily eradicated by the penalty itself or by its expiration or by its removal from the record.”
Mr MacNamee said that the reason for the Complainant’s dismissal was the fact that he had incurred excessive sick leave of 17 days between 26th April 2016 and 11th October 2016 in circumstances where he was the subject of a live and current final written warning relating exclusively to excessive sick-leave. Such circumstances would have afforded the Respondent with sufficient grounds for dismissal taken by themselves without recourse to the Complainant’s previous history. However, it is contended that the previous warnings and unsatisfactory work history were relevant, albeit secondary issues, which affected the overall handling of the dismissal as they all related to his attendance record. Thus, regardless of their expiry, the fact that in previous years, multiple warnings were necessitated by the Complainant’s conduct gave rise to a genuine concern that he was most unlikely to tackle the issue of his sporadic sick-leave so as to avoid the necessity of further disciplinary action. As stated in his dismissal letter the“point of no return”had been reached.
As, for the first time, the Complainant appealed a warning, he was fully aware that the Final Written Warning issued in March 2016 and affirmed in April 2016 was active and that any breach of same would result in his dismissal. Nonetheless he failed to heed the warning and incurred further absenteeism which he could not adequately explain to HR on 7th September 2016. Mr McNamee submitted that the Respondent acted appropriately and professionally at the time, by referring the Complainant for independent medical assessment so as to rule out any medical or other issues that might have required reasonable accommodation on the part of the Respondent. Contrary to the Complainant’s assertions, non-work-related issues reported by the medical examiners were addressed at the appropriate times by the provision of appropriate supports. No personal or medical issues of any sort were raised by the Complainant during the initial meeting with HR on 7th September 2016, at the disciplinary hearing on 11th of October 2016 or at the appeal hearing on 29th November 2016. In fact, such issues were positively and repeatedly denied by the Complainant and by his representative. Mr McNamee said that the Complainant was never in any doubt that the excuses he proffered on each such occasion were rejected and that he had failed to take appropriate steps to tackle his absenteeism.
Mr McNamee said that insofar as there was any inaccuracy relating to the total absent days for previous years, there were no inaccuracies for the period when the written warning was given on 5th March 2015. He said that the Complainant was fully represented at all and every stage of the various disciplinary processes and was at all times fully aware that his position was in jeopardy arising from excessive absenteeism. The decision to terminate his employment was not in the nature of a first offence which required a second chance. The previous, repeated, attempts to focus the Complainant’s attention on the issue had proven ineffectual in that the pattern re-emerged and persisted.
Summary of the Complainant’s Case
The Complainant was represented by Mr Patrick Marron, B.L. instructed by McCartan & Burke Solicitors. Mr Marron stated that the dismissal of the Complainant was procedurally flawed. He said that the Complainant had received a number of warnings from July 2008 in relation to his absences from work, late attendance at work and alleged abuse of the sick pay scheme until 12th October 2016 when he was informed that his employment was being terminated with effect from 24th October 2016. However, he said that the Respondent gave little regard to the fact that the Complainant’s leave had been certified by his GP; his mother had a prolonged illness and passed away in April 2011; he incurred two accidents at work and his attendance had improved in the period April 2012 to March 2014.
Mr Marron disputed the Respondent’s figures on the number of days absence incurred by the Complainant. He submitted that the decision to impose a final written warning and a two-day suspension on the Complainant was disproportionate when account was taken of the average absenteeism level of the public service which in 2016 was 8.9 days and the average level among local authorities is 10.1 days per year, whereas the Complainant had 12 days sick leave in the 12-month period between March 2015 and March 2016.
He submitted that the Respondent was in breach of Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000, as it had undue regard to the Complainant’s sick leave history in the early years of his employment. He submitted that the purpose of final written warnings in a disciplinary process are to encourage an improvement in an employee’s performance. Nevertheless, he submitted that the purpose of a time limit on a warning is to give the employee a clean slate once an improvement has been achieved. However, he contended that the Respondent’s Disciplinary Procedures does not provide for the removal of warnings from the employee’s record. He referred to Mr Geraghty’s letter to the Complainant dated 29th November 2016, following the appeal of his dismissal hearing, which stated that the Complainant’s record throughout his employment had been unsatisfactory, thereby having regard to historical matters which Mr Marron submitted, should have been forgotten.
Mr Marron said that on occasions when the Complainant appealed decisions to issue warnings, the decision makers did not give reasons for upholding the decisions appealed. In this regard he referred toMallak v Minister for Justice[2012] IESC 39 Fennellv J made the following comments:-
- “[68] In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or the decision-making process at some stage. The most obvious means of achieving fairness is for the reasons to accompany the decision. However, it is not a matter of complying with a formal rule; the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person and been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”
This decision as followed by Laffoy J inMcEnery v Commissioner of an Garda Siochana[2016] IESC 66 where she stated at par. 65
- “I consider that the decision of the Commissioner to dismiss Sgt McEnery should be quashed on the grounds of the failure to give adequate reasons for the decision.”
InDillion v Board of Management of Catholic University School[2016] IEHC 674, Twomey J. in dismissing a judicial review of a disciplinary decision made the following obiter remarks at par. 20:-
- “….Furthermore, by its express terms the final written warning was to be removed (and thus treated as if it had not existed) from the applicant’s personnel file after 12 months.”
Mr Marron also stated that regard should be had to the fact that the Complainant carried out a difficult job, where assaults on staff are not uncommon, where unsocial hours are required, and where nature of the work requires inoculation against Hepatitis and other infectious diseases.
He contended that the Respondent had failed to adequately direct the Complainant to its own Staff Support Services with a view to addressing any of the underlying issues which may have caused the Complainant’s absenteeism.
Mr Marron alleged that in all the circumstances, the Complainant had been unfairly dismissed and sought to be re-instated in his job.
Summary of Ms Debbie McLoughlin’s Evidence
Ms Debbie McLoughlin, Administrative Officer, HR Department, has 35 years’ experience working with the Respondent. She told the Court that the Complainant’s file was referred to her on a list of “referbacks” to be reviewed by HR. Having reviewed the file, the witness said that she set up a meeting with the Complainant to discuss his late attendances at work and his absenteeism. This meeting took place on 15th March 2016. She said that the Complainant told her he had lost his driving licence and therefore had difficulties getting to work on time. She asked him about his recent absences, where he had had twelve days absence on six occasions in December 2015. She said she asked him about a possible addiction problem, but he assured her several time there were no issues, he did not drink or take drugs. She said that she was most concerned about him as he was a young man with two young children. She informed him that his attendance level would need to improve, and he gave her such a commitment. Ms McLoughlin said that she followed this up with a letter on 24thMarch 2016, outlining a report from the Occupational Medical Physician, Corporate Health Ireland (CHI) that he attended on 29th February 2016 which stated that he had no chronic underlying medical condition which would prevent him from giving regular attendance. She re-issued a final written warning to him and suspended him for a period of two days. In his letter she explained that failure to provide regular uninterrupted attendance could lead to the termination of his employment.
The witness said that the Complainant’s attendance record continued to be a problem and it appeared to her that he was not taking the disciplinary warnings seriously. Therefore, in order to give him every opportunity, she placed him on special leave on 7th September 2016 and again referred him to CHI. The Occupational Physician assessed him on 26th September 2016 and reported that he had no ongoing reason for any issue with absence from work. The witness said that she asked him did he think the Council could continue to tolerate his absences and he replied that no it could not.
Ms McLoughlin said that as he had 17 days absence on four occasions since his last warning was issued, she called him to a meeting on 11th October 2016, to review the CHI report and the explanation given by the Complainant for his absences was that when the children get sick, he gets sick. The witness said that no decision was made at that meeting as she needed to consider the situation. On 12th October 2016, she sent him a letter informing him that as he was not taking the appropriate steps to deal with the causes of his absenteeism, and the Council were at the point of no return she had no alternative but to dismiss him.
In cross-examination she was asked about the number of days absence the Complainant had over the years as it was put to her that the Council were working off incorrect figures. Ms McLoughlin said that she did not examine figures prior to 2016, she only took account of the absence level since the last final written warning, which was the fifth such warning, the most recent being 26th March 2016 and he had had 17 days absence between that date and the beginning of September. She said that the Complainant has had five final warnings and had paid no attention to them as his absence record continued to be a problem. She said that she had interviewed him on three occasions in 2016 but gave no mitigation reasons for his absences and she was concerned about his ability and commitment to provide an uninterrupted service.
The witness was asked about the average absenteeism rates within the Council, she replied that it was 4 ½%. She said that the Complainant was above average especially for a person with no underlying medical condition, on a final written warning and where he has been advised that he could be facing dismissal. She said that despite the fact that he’s an outdoor worker and there are approximately 450 outdoor workers in similar conditions, his absence rates were excessive.
Summary of Mr Gerry Geraghty’s Evidence
Mr Gerry Geraghty, Executive Manager HR Department, gave evidence on behalf of the Respondent. He told the Court that he carried out the Complainant’s appeal of his dismissal.
Mr Geraghty gave details of the process he engaged in as part of the Complainant’s appeal. He said that he reviewed the absenteeism procedures to ensure they had been properly complied with. He said that he examined the medical certificates and reports and considered the arguments made by the Complainant’s trade union representative. The trade union representative had argued that dismissal was harsh considering that most absences were certified.
Mr Geraghty said that he was willing to consider any information that may not have been disclosed previously, such as any medical concerns that might need to be taken into account, any personal issues or perhaps any addiction problems. He was informed that there were no addiction problems, no underlying medical or chronic issues and the Complainant was not on any long-term medication. He said that the Complainant’s trade union representative said that there were no specific medical reasons for his absences. He said that there was very little put forward in mitigation for his absences. A medical report dated 26thSeptember 2016 indicated that his condition was self-limiting and there should be no ongoing reason for any issues with absence from work.
Mr Geraghty said that the facts showed that the Complainant had an unsatisfactory service record and since his last final written warning was issued on 24thMarch 2016 he had had a further 17 days certified days sick leave on four separate occasions. He said that as the Complainant’s attendance record had not improved while he was on a final written warning he decided to uphold the decision to dismiss as his attendance was a disruption to the workplace.
In cross-examination, the witness was asked to clarify the number of days in each year the Complainant was absent as it appeared that Mr Geraghty had relied upon inaccurate details.Mr Geraghty gave the following details:-
- 2011 89 days on 5 occasions
2012 12 days on 6 occasions
2013 25½ days on 11 occasions
2014 41 days on 10 occasions
2015 19 days on 8 occasions
2016 46 days on 5 occasions
When questioned whether he had taken account of lapsed warning when making his decision, he said that he relied upon the 17 days taken since the warning was issued on 24thMarch 2016 and due to the Complainant’s previous record he considered the likely future possibility of further absences. In answer to a question on this point he answered, “looking at figures and putting weight on them were two different things”. He said that the Complainant had been given a number of opportunities to improve yet there was no sustainable improvement.
Mr Geraghty said that the average absenteeism in the Council was approximately 5 % (10 – 12 days per annum) and the Complainant’s were way above the average.
The witness was asked about training opportunities given to the Complainant. Mr Geraghty said that he had been given specific training courses on waste management, driver training and heavy driving techniques. He had also attended a course on access to promotion. He had had training in IT skills, work skills and return to work skills.
The witness was asked if he was aware of an argument the Complainant had with the Respondent’s Attendance Officer. He replied that he had no knowledge of that.
Summary of the Complainant’s Evidence
The Complainant told the Court that he commenced working with the Respondent when he was seventeen and was provided with time off to complete his Leaving Cert exams.
He said that he was aware that his attendance was not good over the years. He said that his mother was admitted to a hospice in 2009 and she died in April 2011. He was asked if he had ever had an addiction problem, he said that in 2012 he had a problem, he was referred to Staff Support Services and it was sorted out. He said that he does not drink or take drugs. He said that he had put in two transfer requests over the years, but they were refused.
The Complainant accepted that he had not appealed most of the warnings. He said that while he accepted that his absence record was not good, he said that he was trying to improve it, yet he understood that the warnings were likely to lead to his eventual dismissal. In cross-examination when he was asked what more could the Respondent have done, he replied that the Council could have given him one more chance. He said that he was not deliberately missing days. He accepted that he was represented by a trade union official at all of the meetings and was well advised by them.
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.
Discussion and Conclusions of theCourt
The arguments adduced by the Respondent are not based on issues of ill health but rather on the levels of absence. Therefore, the legal basis for the dismissal is grounded in the ‘conduct’ of the Complainant, which is also a basis in Section 6(4) under which a dismissal may be deemed not to be ‘unfair’.
The test for the Court in such cases is not whether the Court would itself decide to dismiss an employee for their conduct. Rather, the test for the Court is that which was set by Lord Denning in the British case ofBritish Leyland UK Ltd v. Swift(1981) IRLR 91, a test which was confirmed in this jurisdiction inFoley v. Post Office(2000) ICR1283. Lord Denning stated that:-
- “If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.”
He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but “If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him”. This is the test for the Court in cases where the conduct of an employee is stated to be the basis for dismissal i.e. does the decision to dismiss fall within the ‘band of reasonableness’. As was pointed out by the Respondent, inRedmond on Dismissal Law, 3rdedition, paragraph 13.25 – 13.35, a dismissal may be deemed within the band of reasonableness where it can be shown that a reasonable employer would regard the circumstances as a sufficient reason for dismissing. An employer does not have to show that no reasonable employer would have dismissed.
The Court has considered in detail the written and oral submissions of the parties and the witness testimony presented to the Court. The extensive attendance and absence pattern of the Complainant is not in dispute and neither is it disputed that his absence pattern regularly resulted in a substantial number of warnings being issued to him in accordance with the Respondent’s Disciplinary Policy, where the Complainant was advised that such absences could lead to his employment being in jeopardy if they continued.
The Court notes that in April 2012, when he finally admitted to an underlying reason for his inability to provide the required satisfactory service, he was referred to the Respondent’s Staff Support Services and was offered special leave without pay to deal with his problems. He was given the necessary assistance by the Staff Support Services and his problem was sorted. However, on 24th January 2013, he was again issued with a written warning due to his unsatisfactory absences, another final written warning was issued on 19th August 2014 which was re-issued on 5th March 2015, another final written warning on 24th March 2016 and he was notified of the decision to dismiss him on 12th October 2016.
On each occasion that he was furnished with a warning he was informed that his regular intermittent absences, some of which were unauthorised, could not be tolerated, he was reminded that he was expected to provide an efficient regular service and to comply with the terms of the Sick Pay Scheme. It was very clearly pointed out to the Complainant in the letter from Ms McLoughlin dated 24th March 2016 when he was given his last final written warning what would happen if he did not improve and he was warned that his attendance at work would be closely monitored for the period the warning was in place. The Court notes that at each meeting with management, the Complainant was represented by his trade union representative.
It was argued on the facts of this case that the decision to dismiss was not proportionate and that other steps were available to the employer to address the issue of absenteeism, particularly as there was no dispute about the genuine nature of the sick absences.
InDzierzawska v. Wincanton IrelandUD/7/2012, the Employment Appeals Tribunal observed that :-
- ‘…an employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for the absence are genuine…
In assessing whether the decision to dismiss falls within the ‘band of reasonableness’ and also whether it was proportionate, the Court considered the steps taken by the Respondent to deal with the Complainant’s absenteeism. In particular, the fact that the Respondent operated a clear step by step disciplinary process and that, as a result, the Complainant was given opportunities to improve his attendance record and, indeed, was warned of the consequences of not doing so after he received verbal, written and final written warnings, suggest to the Court that the Respondent’s ultimate decision to dismiss was proportionate to the gravity of the complaint. Such levels of absenteeism, which if repeated widely within the Council, would have been wholly unsustainable for the Respondent.
The Respondent, having done all that was reasonably possible to explore the reasons for the continued absenteeism and having taken a series of progressive, measured and appropriate steps to reverse it, reasonably formed the view that it had run out of options and that no further action could reasonably have been deployed in the circumstances to secure the Complainant’s regular and efficient service.
The fact that he was afforded opportunities to appeal each outcome of the disciplinary process, including the decision to dismiss, strengthens the Court’s view in this regard. Furthermore, in the circumstances of the case, the Court is satisfied that the decision to dismiss falls within the definition of a ‘band of reasonableness’.
The Court concludes that the decision to dismiss was not unfair.
Determination
The Decision of the Adjudication Officer is upheld. The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
12 December 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.