Complainant

Respondent

Anonymised Parties

General Worker

Wholesale Retailer

Representatives

Judy McNamara IBEC

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-00018775-001

25/04/2018

The Complainant seeks adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977-2015, and submits that the dismissal was unfair and not in accordance with the provisions of the Respondents own Disciplinary Policy and Procedures or justified under the Unfair Dismissals Acts.

The Complainant was employed as a General Worker with the Respondent Company from the 12th May 2004 and received notice of the termination of his employment on the 10th November 2017 and his employment effectively ceased on the 5th January 2018.

The Complainant was   an employee of the Respondent Company for over 13 years and it was submitted on his behalf that in that period of time, his performance was more than satisfactory and this was purportedly recognised in his annual reviews by his supervisors. Prior to this disciplinary procedure that ultimately led to his dismissal, the Complainant was never the subject of any disciplinary procedures or sanctions by the Respondent Company and provided loyal and valuable service to said company.

The Complainant was dismissed due to his level of absenteeism. The time line in relation to the Complainants dismissal initiated with a verbal warning in May 2017, a written in warning in July 2017 and a further written warning in August 2017. It was submitted that the Respondent Company did not consider that the Complainant had provided any reasons or mitigating factors for his absenteeism and accordingly took the decision to dismiss him. Further, the Respondent Company had also contended that its Occupational Health Service had satisfied itself there was no underlying reasons which would explain the Complainants absence from work including his issue with alcohol. The Respondent Company also referred to the various supports it had offered the Complainant but they did not make any improvements in his attendance at work.

It was submitted on behalf of the Complainant, that it was important to appreciate that the incidents of absenteeism, in the circumstances of this matter, all related to the last 18-24 months of the Complainants employment and these absences were certified as days he was genuinely ill by his general practitioner. It is suggested that the Respondent Company failed in its duty of care to the Complainant in recognising or accepting that the Complainant was suffering from work related stress and anxiety at the time of the end of his employment. The various symptoms of stress that the Complainant presented with (low self esteem, low mood and dependence on alcohol) were not considered by the Respondent Company.

The Complainant contended, in the course of his evidence, that the Respondent Company never really understood or appreciated that the Complainant was suffering from stress and did not provide any meaningful support. In particular, the supports referred to in the letter of dismissal were essentially focused on discipline rather than seeking to assist the Complainant in managing his illness and his rehabilitation and could not be considered as any form of counselling and this can be confirmed by reviewing the minutes of the investigatory meetings.

Further, it is submitted, that the Employee Assistance program was of no benefit to the Complainant in dealing with his recognised illness and only provided contact details of the service. The Complainant contends that the nature of the two brief visits to the Respondent Company’s Occupational Health Service were totally inadequate and not framed in any way towards identifying the fact that the Complainant was suffering from stress. In particular, the Occupational Health Service arbitrarily dismissed the Complainants issue with alcohol and did not seek to engage with the Complainants general practitioner or refer him to an independent professional alcohol counsellor.

The Complainant was concerned that that the Occupational Health report of the 27th October 2017 was relied upon by the Respondent Company and did not reflect that the Complainant was suffering from stress, as certified by his own general practitioner, and dismissed any possibility that the Complainant was suffering from stress or anxiety.

It is submitted, that the Respondent Company did not treat the Complainant in a fair and reasonable manner in that they should have liaised with the Complainants general practitioner or alternatively engaged an independent qualified practitioner in the area of mental health to assess whether the Complainant was suffering from stress.

In relation to the disciplinary process itself, the Complainant accepts the various disciplinary meetings and warning issued to him. However, the Complainant contends that the minutes of the various investigatory meetings demonstrates his disengagement from the process and effectively highlight there were other underlying issues that should have been thoroughly investigated by the Respondent Company in order to explain the aforementioned absences from work in light of the Complainants lengthy and commendable service.

In summary, it is accepted, on behalf of the Complainant, that prior to the dismissal, the subject matter of this complaint, his level of absenteeism was high however the main reason for these absences was stress along with his mothers illness. The Complainant contends that the Respondent Company was focused on disciplining him rather than assisting him in dealing with work related stress and in that respect failed in their duty of care to the Complainant.

Further, it is submitted on behalf of the Complainant, that the Respondent Company could have considered an alternative sanction to dismissal, in consideration of the Complainants lengthy and unblemished record, and accordingly did not treat him in a fair and reasonable manner.

In consequence thereof, it is submitted that the dismissal of the Complainant by the Respondent Company, in the manner outlined was unfair in the circumstances.

The Respondent Company summarised their position , at the outset of their evidence, that the Complainant was dismissed for poor attendance and in that respect he had a total of 80 days absent in less than a year. The fact of the dismissal is not in dispute.

The background to the Complainants dismissal was outlined as follows. On the 3rd May 2017 the Complainant was issued with a verbal warning for five occasions of absence totalling 44 days. This warning was issued in accordance with the Respondent Company’s disciplinary and attendance policies. The Complainant was represented by SIPTU at this meeting and chose not to appeal this warning which was to remain on his file for six months.

Following this verbal warning, the Complainant was absent for a further period of fourteen days in the next two months. Accordingly, on July 24th 2017 the Complainant was issued with a written warning for poor attendance. The warning letter indicated that unless there was satisfactory and sustained improvement in the Complainants attendance then further disciplinary action may be taken up to and including dismissal. The Complainant was represented by SIPTU at this meeting and chose not to appeal this warning which was to remain on his file for 12 months.

Following, this written warning the Complainant had a further two instances of absence totalling six days.

On the 31st August 2017 the Complainant was issued with a final written warning for poor attendance. This warning letter indicated and warned, as in the previous written warning, that unless there was a satisfactory and sustained improvement in the Complainants attendance then further disciplinary action may be taken up to and including dismissal. The Complainant was represented by SIPTU at this meeting and chose not to appeal this warning which was to remain on his file for 12 months.

On the 12th September 2017, the Respondent Company was caused to write to the Complainant following his failure to attend at his workplace for three days and where he had not made any contact to explain his absence. Accordingly, an investigation meeting took place on the 21st September 2017 and the Complainant was in attendance with his SIPTU representative. In the course of this meeting, the Complainant stated that his non attendance had been due to issues with alcohol. The Complainant was then referred to Occupational Health Services in relation to these alcohol issues.

The Complainant attended with the Occupational Physician on the 27th October 2017 and the report that issued opined that the Complainant was fit to partake in internal investigations and fit to remain in work. Although the Complainant admits to regular heavy alcohol consumption he does not believe that this is a problem or is affecting his work.

A disciplinary hearing took place on the 1st November 2017 wherein the Complainant was represented by SIPTU and ultimately this resulted in the Complainant being dismissed. The Complainant was afforded the right of appeal against his dismissal but declined this opportunity.

The Respondent Company, in the course of their submissions, indicated that the Complainants dismissal was not unfair as it resulted wholly from the conduct of the employee in accordance with section 6(4) (b) of the Unfair Dismissals Act 1977.

In the circumstances of this matter, the Complainant received three warnings prior to his dismissal and failed to reach a minimum standard required of him as an employee in attending his workplace. It is submitted that the Complainant was afforded all the benefits of fair procedures in accordance with the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the principles of natural justice. In particular, it is noted that the Complainant was afforded the right to appeal at each stage of this disciplinary process but declined these opportunities.

In that respect, the Respondent Company believes that the dismissal was substantively and procedurally fair in all respects.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Section 6 of the Unfair   Dismissals Act 1977 as amended (‘the Act’) provides inter alia as follows:

‘(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.’

Subsection (4) (c)

“provides that a dismissal of an employee will not be unfair if it   results wholly or mainly from inter alia the conduct of the employee. In addition, subsection (7) provides that   where appropriate, regard may be had to the reasonableness of the conduct of   the Respondent with regard to the dismissal.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations ( and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 )as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am   satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In consideration of this matter, I am conscious of the case of Dzierzawska -v- Wincanton Ireland (UD7/2012) wherein the Complainant in this case had a high level of absences for both certified and uncertified absences 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…”

I further note the Complainant did not, at any juncture, appeal the decision to dismiss or any of the previous warnings. In that respect, the case of Pungor -v- MBCC Foods Limited (UD584/2015) the EAT outlined that the employee “has an obligation to exhaust the internal disciplinary processes prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.” This position was endorsed by the Labour Court in the case of Aryzta -v- Vilnis Cacs UD/17/106 wherein it was stated that the “ there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so ….taking account if the failure of the Claimant to exercise his right of internal appeal, the Court finds that the Claimant was not fairly dismissed.”

In order to make a decision in relation to the issue of unfair dismissal, I have sought to weigh up the detailed submissions and oral evidence of the respective parties along with the statutory requirements and definitions and the relevant case law, discussed above, in order to assess whether the complaint, in the circumstances of this matter, have been met.

I am sympathetic to the Complainants personal situation and of the difficulties encountered in the course of his employment however, upon the consideration of the above I prefer the evidence of the Respondent and accordingly the Complainants case does not succeed.

I find that the Complaint (CA-00018775-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977 fails.

Unfair Dismissal