UDD1912

Mr. O’Reilly, ‘the Claimant’ was dismissed by the Hospital, ‘the Respondent’. He had been employed as a Porter since 2002. His employment was terminated in October 2017 because of what the Respondent regarded as unacceptably high levels of absence.

He brought a claim under the Unfair Dismissals Act to the Workplace Relations Commission. The Adjudication Officer had found that the Claimant had not been dismissed unfairly. The Claimant appealed to the Court.

Respondent’s arguments

1 The Claimant had unacceptably high levels of absence for a number of years despite the significant support offered to him by the Respondent.

This had been dealt with through the Respondent’s disciplinary procedures and the Claimant had received verbal, written and final warnings under those procedures prior to the decision to dismiss.

2 The Claimant’s absence record was nearly 20% compared to the average among his colleagues of nearly 5%. This caused considerable disruption to the Portering Service.

3 The situation was exacerbated by a persistent failure to follow correct procedure in reporting absence.

4 It was made clear to the Claimant in his final written warning that continued difficulties with absences could lead to further disciplinary action up to and including dismissal. This was not appealed.

5 The decision to dismiss arose because the level and pattern of absenteeism was unsustainable in a small Department.

6 The processes used throughout were fair and in line with the LRC Code of Practice on Grievance and Disciplinary Procedures. There is no dispute about the level of absences.

7 The decision to dismiss was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.

8 ‘Blameworthiness’ of the employee, (i.e. whether or not any illness is genuine) is not an essential factor in the fair dismissal of an employee for unacceptably high levels of illness-related absenteeism.

Claimant’s arguments

1 The Claimant had an acceptable record for the first 11 years of his employment until 2013 when, due to an illness, his level of absenteeism grew. Following successful treatment for the illness, the Claimant suffered a series of medical and health issues which caused multiple, intermittent absences from work.

2 The decision to dismiss was disproportionate. There has never been any question by the Respondent that the Claimant is not genuinely suffering from the illnesses certified and ‘proportionality’ requires account to be taken of the gravity and effect of dismissal on the employee.

3 The reaction of the Respondent falls outside what is reasonable. There were other options, apart from dismissal, available to the employer and his length of service should have been taken into account, in line with previous case law. The Respondent could have acted more compassionately.

4 There had been an improvement in the Claimant’s record, to which insufficient weight was given, as there was no clear limit or target set for the Claimant.

5 In dismissing the Claimant, the Respondent expressed the view that a factor in the decision was that the pattern of absence was likely to continue.

This is purely speculative.

6 The investigation that led to dismissal proceedings was conducted by a person who participated in the deliberative process subsequently that led to the dismissal. This is contrary to the principle of natural justice that a man or woman should not be a judge in their own cause, ‘nemo iudex in sua causa’.

Legal issues for consideration

In the course of the hearing, the Respondent’s representative made reference to s.6(4) of the Unfair Dismissals Act, which states that’…the dismissal of an employee shall be deemed…not to be an unfair dismissal, if it results wholly or mainly from…(a) the capability…..of the employee..’

Quite correctly in response, the Claimant’s representative pointed to the judgement in Bolger v Showerings Limited (1990) ELR184, in which it was held that in order to demonstrate that a dismissal on grounds of capability is fair, the employer must show that ill health was the substantial reason for the dismissal. In fact, in this case, 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 Claimant, which is also a basis in s. 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 of British Leyland UK Ltd v. Swift (1981) IRLR 91, a test which was confirmed in this jurisdiction in Foley 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 misconduct is stated to be the basis for dismissal i.e. does the decision to dismiss fall within the ‘band of reasonableness’. In gauging that test, the Court has to be mindful of the absolute necessity for fair procedures. In this regard, the Court spent some time examining the very serious issue raised by the Claimant’s representative on the application of the principle of natural justice that a person may not be a judge in their own cause.

The Court heard evidence from the Respondent’s HR Director on the issue. It is never desirable that an investigator should participate in a deliberative process that derives from his/her investigation. In most instances employers should expect this to result in the outcome of the process being invalidated. The Respondent explained that the ‘investigation’ consisted of nothing more than a compilation of the undisputed facts regarding the Claimant’s absence record and a suggestion, as a result, that it was appropriate to activate further disciplinary processes. The Court weighed the facts and the explanation offered very carefully. It is, without question, a flaw in the Respondent’s procedures that could render fatal the Respondent’s subsequent decision. The question for the Court is whether there was a breach of natural justice in this instance, which, if such a breach had occurred, would render automatically the subsequent decision to dismiss to be unfair.

The explanation offered was that the 'investigation' consisted of nothing more than the compilation of facts that are not in dispute, together with a suggestion that the disciplinary process be re-activated as a result of these facts. Furthermore, it was stated that the ultimate decision to dismiss was taken by the HR Director and not by her colleague who had compiled the information. In light of these points, the Court accepts, on balance, that the procedural flaw was not fatal to the disciplinary process as, in reality, there was no breach of the rights of the Claimant to natural justice. It is the facts of this particular case that drew the Court to this conclusion. If the Court had found that the Claimant’s rights under natural justice had been breached then, irrespective of any other consideration, the dismissal would have been rendered unfair.

The Claimant’s representative, in questioning the proportionality of the decision to dismiss, referred to the observations in Frizelle v. New Ross Credit Union Ltd(1997) IEHC 137 in which Flood J stated that;

‘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 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.

In rebutting this point, the Respondent’s representative drew attention to the case of Dzierzawska v. Wincanton Ireland UD/7/2012, to which the Adjudication Officer had referred in his decision, in the course of which finding the Employment Appeals Tribunal had 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…’The questions, therefore, for the Court to consider are whether the decision to dismiss falls within the ‘band of reasonableness’ and also whether it was proportionate. In assessing these points, the Court considered the steps taken by the Respondent to deal with the Claimant’s absenteeism. In particular, the fact that the Respondent operated a clear step by step disciplinary process and that, as a result, the Claimant 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’.

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 this decision falls within any definition of a ‘band of reasonableness’.

The Court concludes that the decision to dismiss is not unfair.

Determination

The decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
4th March 2019______________________
CHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.