Complainant

Respondent

Anonymised Parties

A Production Operator

A Manufacturing Company

Representatives

Andrew Turner - Hamilton Turner Solicitors

John Brennan IBEC West

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-00028795-001

31/05/2019

The Complainant commenced work with the Respondent, a multi-national industrial manufacturing company, in the role of Production Operator, on 9 April 2006.

On 22 February 2017, the Complainant was issued with a Stage I Verbal Warning for excessive absenteeism.   On 7 July 2017, the Complainant was issued with a Stage II Written Warning, following a 10-day absence period in June 2017.

On 14 November 2017, the Complainant was issued with a Stage 3 Final Written Warning, On the basis that his 12-month rolling average absence had escalated to 11 instances, representing 44 days and unauthorised absence rate of 18.7%. The Complainant was advised that this warming would remain on file for a nine-month period, to August 2018.

Between 23 January 2018 and 27 February 2018, the Complainant registered a further 26 days absence from work. The Complainant attended a disciplinary meeting on 7 March 2018, at which he was advised that the Stage III Final Written Warning, issued in November 2017, would be extended by a further three months up to 30 November 2018.

Following two further days absence, in May/June 2018, the Complainant attended a disciplinary meeting on 15 June 2018, at which he disclosed that he was addicted to alcohol and prescription drugs. The Respondent’s Human Resources Department, in conjunction with their Occupational Health Unit, immediately agreed to support the Complainant in attending an addiction treatment programme. On 21 June 2018, the Respondent issued a further extension to the Stage III Final Written Warning, to expire on 13 February 2019.

Following his attendance at the treatment programme, the Complainant returned to work on 22 August 2018, having been certified as fit to do so by the Respondent’s Occupation Health Unit.

On 26 September 2018, the Complainant was absent from work for a half-day. As a result of this the Complainant was counselled by his manager and no further action was taken. On 21 December 2018, the day on which the company was shutting down for Christmas and finishing early at lunchtime, the Complainant did not attend for work.

On 2 January 2019, the Complainant was called to a meeting with his manager at 9:15am, at which he was advised that the two incidents of absence since his return from his rehabilitation programme would be considered as potential excessive absenteeism. The Complainant was invited to an investigative meeting at 2pm that afternoon to discuss his excessive absence. Following this meeting, the Complainant was informed that, due to the seriousness of the matter and in line with Stage IV of the Disciplinary Procedure, he was being suspended with pay pending the outcome of an investigation.

Following an investigation meeting on 3 January 2019, a report was submitted, on 14 January 2019, to the Respondent’s Operations Manager (Mr A) to decide what level of disciplinary action should be taken. On 16 January 2019, the Complainant attended a disciplinary meeting with Mr A. On 22 January 2019, the Complainant was issued with a letter advising him that his contract of employment was terminated with immediate effect. The Complainant appealed this decision and was advised, by way of letter dated 13 February 2019, that the original sanction of dismissal had been upheld at appeal.

On 31 May 2019, the Complainant submitted a complaint of unfair dismissal to the Workplace Relations Commission. That complaint is the subject of this adjudication.

Background:

The Complainant’s representative provided a detailed account of the background to the complaint, the chronology of which was consistent with that set out above. A number of additional points were made, under this heading, with regard to the background/employment of the Complainant with the Respondent.

With regard to the investigation, which took place in January 2019 and eventually led to the Complainant’s dismissal, it was submitted that he fully addressed each of the six incidents of absence raised by the Respondent, as set out in the Investigation Report dated 14 January 2019. According to the Complainant’s submission, four the six instances predated the meeting of 14 June 2018, at which the Respondent was informed and put on notice of the Complainant’s serious health issues and upon which the said absences were predicated. According to submissions made on his behalf, the Complainant had already been disciplined in respect of these four absences.

Consequently, the Complainant submitted that the basis for any investigative meeting pertained only to the absences, occurring on 26 September and 21 December 2018 (0.5 day), respectively.

With regard to the incident on 26 September 2018, the Complainant submitted that he left work at 9am for a scheduled 10am appointment with his dentist. It was further submitted that the Complainant visit to the dentist resulted in a tooth having to be pulled. According to the Complainant’s submission, following the extraction, he fainted and had to be driven home by the on-duty receptionist, at the dental surgery, to ensure he made it home safely. It was further submitted that the dentist instructed the Complainant not to return to work that day.

According to the Complainant’s submission, he requested his uncle, who was also an employee of the Respondent, to contact the Respondent and inform them that he was not fit to return to work that day. The Complainant submitted that, on the following day, he submitted an after-care sheet from the dentist. According to the Complainant, he offered to obtain an official letter from his attending dentist confirming the instruction that the Complainant should not return to work as a result of the procedure which had taken place. However, the Complainant submitted that the Respondent never requested the official letter and, as a result, he was not on notice that this incident had been treated as an un-certified absence. The Complainant submitted that, in any event, he made sure that all future appointments would arise outside of normal working hours.

In conclusion with regard to the absence on 26 September 2018, it was further submitted by the Complainant that, following the disciplinary meeting of 17 January 2019, he submitted a letter, dated 23 January 2019, from the dentist confirming that the Complainant: “had a surgical extraction of the LL6 here at our clinic on 26/09/18 and would have been unfit for work that day”.

With regard to absence on 26 September 2018, the Complainant contended that the manner in which the Respondent handled this absence was unfair. According to the Complainant’s submission, on that occasion, he followed the dentist’s advice on health and safety grounds, notified the Respondent of the position on the day in question and according to the Complainant he was told by the Respondent that such certification was not necessary. However, the Complainant submitted that it is evident that this was not the case, as the lack of certification forms the basis for the charge and that this proceeded to be the basis on which the decision was formed to terminate his contract of employment.

With regard to the incident on 21 December 2018, the Complainant submitted that his childminder provided no notice to him of the fact that she will be unable to mind his children that day. The Complainant further submitted that due to his circumstances at the time, he was unable to leave his children unattended. The Complainant submitted that on this occasion he also contacted his uncle and explained the situation that had arisen. Finally, the Complainant submitted that he was unable to attend work on that particular day due to events outside of his control.

In concluding submission in relation to the background to the termination, the Complainant’s representative highlighted how the Respondent was aware that the rehabilitation programme, which the Complainant had attended, had dramatically improved his health, as evidenced by the major reduction in his rate of absenteeism. It was further submitted that the decision, by the Respondent, to terminate the Complainant’s contract of employment was a breach of its duty of care in view of the fact that it had specific knowledge regarding the serious and life-threatening nature of the health issues which the Complainant faced and which they had been made privy to.

Legal submission:

In submission in support of the Complainant’s claim, his representative made direct reference to Section 6 (1) and Section 8 (1a) of the Unfair Dismissal Act, 1977.

The investigation process:

In support of his submission that the Respondent failed to carry out proper and fair investigation where dismissal for conduct was the issue and further sanctions imposed did not lie within the range of reasonable responses, the Complainant cited the case of Michael Morales v Carton Bros [UD 835/2011].

With regard to the within case, it was submitted on behalf of the Complainant that at the investigative meeting, on 3 January 2019, the Respondent failed, refused and/or neglected to properly take account of the decision taken to support the Complainant in his recovery from addiction. It was further submitted that the Respondent failed to take account of the circumstances surrounding the Complainant’s final two instances of absence, as being circumstances outside of the Complainant’s control.

The Disciplinary Procedures and proportionality:

It was submitted on behalf of the Complainant, that it is necessary to consider the proportionality of an employer’s decision to dismiss an employee in the light of the surrounding circumstances. According to the Complainant’s submission, the test for reasonableness in this regard was set out by the EAT in the case of Noritake (Ireland) Ltd v Kenna [UD88/1983]. It was submitted that the Respondent failed to consider the totality of the case, specifically the Complainant’s previous full disclosure in respect of the alcohol and drugs issues which he was suffering from and the progress he has made through his full participation in the rehabilitation programme. It was further submitted that the decision by the Respondent to dismiss the Complainant on foot of an effectively certified absence and a flawed investigation, disciplinary and appeals process was disproportionate.

According to submission made on behalf of the Complainant, the Respondent acted in an excessive and disproportionate manner to the somewhat engineered charge against him for the explained absences which arose. It was further submitted that it is clear that the punishment “did not fit crime”. In this regard, the Complainant cited the case of McGee v Peamount Hospital, where, in particular, he noted the EAT’s finding that “the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses ”. According to the Complainant’s submission, the sanction of dismissal, imposed by the Respondent in this case, was not within the range of reasonable responses.

It was further submitted by the Complainant, that the action taken by the Respondent, in dismissing him was not supported by the facts. According to the submissions made on behalf of the Complainant, there was an apparent motivation, on behalf of the Respondent, to misconstrue the recording of the absences, which formed the basis of the dismissal, in order to suit its objective of removing the Complainant from his position.

Employer’s conduct:

The Complainant’s representative submitted that, pursuant to Section 6 (7) of the 1977 Act, regard must be had to, inter alia, the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to dismissal. According to the Complainant, this principle was applied by the EAT in the case of Dowling v Harbour Technology Ltd [UD 500/2002] and the UK case of Williams v CompAir Maxam Ltd [1982 IRLR 83]

According to the Complainant’s submission, in circumstances where he was effectively dismissed from his employment for one certified absence and one uncertified absence, the Respondent acted unreasonably in doing so and further acted unreasonably in considering the previous absences, which had already been addressed and with which he had engaged fully at the time.

Redress address:

It was submitted that the Complainant had made every effort to mitigate his losses after being unfairly dismissed. According to the Complainant, he took up an position on or about 28 May 2019 before securing a position with his current employer on 13 September 2019. Based on this, the Complainant’s representative presented a detailed calculation of the Complainant’s losses.

However, it is contended that, given the “callous nature” in which the Respondent dismissed the Complainant, the Adjudication Officer is invited to mark his disapproval of the conduct of the Respondent and extend the award to the Complainant beyond his actual losses to date.

Conclusion:

In conclusion, it was submitted on behalf of the Complainant that, whilst it is acknowledged that there was an absenteeism monitoring system in place, it was misused and resulted in the mis-recording of the Complainant’s authorised and certified absence resulting in a breach of Sections 6 and 8 of the Unfair Dismissal Act, 1977.

The Complainant submitted that, the investigation, disciplinary and appeal processes were entirely outside what would be expected within the provisions of fair procedure natural justice.

Accordingly, on the basis of the foregoing, the Complainant submitted that his dismissal was unfair and sought a finding in that regard.

Background:

The Respondent provided a detailed chronology of the events covering the period from February 2017, when the Complainant was issued with the Stage I Verbal Warning for excessive absenteeism, through to January/February 2019, when the Complainant’s contract of employment was terminated.

The Respondent submitted that, while they manage absenteeism on a rolling 12-month basis, the disciplinary process relating to the Complainant was first initiated almost two years prior to his dismissal.

Respondent’s Arguments:

a) Level of absenteeism:

The Respondent submitted that when the Complainant attended an investigative meeting, on 3 January 2019, he was already on this Stage 3 written warning, which had been extended on two previous occasions by three months in each instance. According to the Respondent, the investigator, Mr B, found that the Complainant’s level of absence was excessive. It was submitted that the facts illustrate that the Complainant’s absence rate, for a rolling 12 months in 2018, was exceptionally high at 29.87%, over six incidents including the rehabilitation period.

According to the Respondent’s submission, even when the time spent in rehabilitation is excluded it is noted that the Complainant’s absence rate was 12.5%. The Respondent further submitted that Mr B’s investigation report points to an established pattern with the Complainant’s absence rate record 18.29% for 2017. The Respondent submitted that the company average for that year was 2.2%, while the industry average was 2.9%.

Consequently, the Respondent submitted that, from their point of view, this level of absenteeism is unacceptable from a productivity and a continuity perspective. According to the Respondent, the Complainant did not provide reliable attendance.

b) Fair Procedure:

According to the Respondent’s submission, they followed fair procedure throughout the process and under the agreed procedures as per the Company/Union Agreement.

The Respondent submitted that appropriate representation was allowed at all meetings. (Mr C). In addition, it was submitted that the Complainant was provided with an opportunity to appeal disciplinary decisions at each stage of the process, including the final dismissal stage.

The Respondent also referred in submission to the fact that the Complainant had been afforded two extensions to the Stage 3 final written warning which is above and beyond the requirements of the agreed procedures.

According to the Respondent submission, an unbiased investigation was carried out and the findings issued to the Complainant. It was further submitted that these findings were fully considered by two members of senior management before a final recommendation was made to dismiss the Complainant. In addition, it was submitted that all matters were again considered by the Plant Manager, when arriving at his decision to terminate the Complainant’s employment. Consequently, the Respondent submitted that all procedures of natural justice were complied with throughout the process leading to the Complainant’s dismissal.

Finally, in this regard, the Respondent submitted that, in conjunction with their Occupational Health Unit, they fully supported the Complainant during his rehabilitation programme. According to the Respondent, in order to support the Complainant with his recovery, he received full sick pay for the duration of the related absence from 28 June to 21 August 2018.

c) Grounds of Appeal;

In their submission, the Respondent referred to the two grounds on which the Complainant based his internal appeal against the dismissal decision. These were (a) that the Respondent had failed in its duty of care by terminating the Complainant’s contract of employment at a time when he was on the road to recovery following years of substance abuse and (b) that it was unfair to include the incident involving a dental appointment as one of the two absences, as the Complainant had attended work that morning. In addition, the Complainant believed that when his manager told him it was not necessary to get a cert, that was the end of the matter.

With regard to the first ground, as detailed above, the Respondent submitted that they engaged with the Complainant from January 2017, when it commenced disciplinary process following five instances resulting in 42 days of absence. The Respondent further submitted that they continued, in their duty of care towards the Complainant, to engage with him until 21 December 2018, which resulted in 13 various interventions from back to work interviews, counselling sessions, final written warnings, which were extended on two occasions and a referral by the Occupational Health Unit (OHU) to a rehabilitation programme whereby he was fully paid.

According to the Respondent’s submission, they were consistent in their approach in managing absence referring to a rolling 12-month period and could not reference a period of four months (i.e. September to December 2018) solely in its application of the disciplinary procedures. According to the Respondent, the Complainant was deemed fully fit for work by the OHU following the rehabilitation programme and he did not seek further assistance from the Unit following his return to work on 22 August 2019.

With regard to the second ground of appeal, as detailed above, the Respondent submitted that the Complainant had annual leave available to him to facilitate attending the dentist. However, the Respondent submitted that the Complainant did not mitigate against an issue arising despite the fact that he was on a twice extended final written warning.

In addition, the Respondent submitted that the Complainant was aware that, under the sick pay policy, an absence of three days or less does not require medical certificate and, therefore, his manager advised incorrectly that certificate was not necessary. It was further submitted by the Respondent that the Complainant admitted in his appeal meeting that his manager did not advise him that the absence would not be recorded as such.

d) Legal Argument:

The Respondent rejected the accusation that the dismissal was unfair on both procedural and substantive grounds.

With regard to the substantive grounds for dismissal, the Respondent submitted that its actions were in accordance with Section 4 (a) and (b) of the Unfair Dismissals Act, 1977 – 2015. According to the Respondent’s submission, based on both the “capability” and “conduct” grounds as referred to in these sections of the Act, the dismissal of the Complainant should be deemed fair.

According to the Respondent, the Complainant’s absences were far in excess of those to be allowed for by any reasonable employer. The Respondent submitted that they ensured all steps were taken to support the Complainant through his illness, following his disclosure of his addiction on 15 June 2018.

The Respondent further submitted that, even if the Complainant’s absence while on his rehabilitation programme was removed, the absence rate for the rolling 12 months in 2018 is lowered from 29.87% to 12.5%. In this regard, the Respondent submitted that these figures compare with an in-house average of 2.2% and an industry average of 2.9% for the same period. According to the Respondent, the Complainant was far beyond this average when on his Final Written Warning.

According to the Respondent’s submission, the Complainant had been deemed fit to work, following his return from his rehabilitation programme, and yet he still had a further two instances of absence. The Respondent submitted that this is a clear conduct issue and that, given that the Complainant was on a Final Written Warning, it was absolutely fair as per Section 4 (a) of the Act for them to dismiss him.

In support of their submission that the Complainant’s dismissal was procedurally fair and that they acted reasonably at all times with regard to the dismissal, the Respondent referred to Section 4 (7) (a) of the Act. Further, in this regard, the Respondent cited the following cases in support of their arguments: General Worker v A Wholesale Retailer [ADJ-00014381], Bord Gais Eireann v A Worker [AD 1377], and Dzierzawska v Wincanton Ireland [UD7/2012]

Based on the above, the Respondent submitted that the lengthy process, which eventually ended in the Complainant’s dismissal, was absolutely fair and reasonable.

e) Conclusion:

In summary, the Respondent refuted the allegation that the Complainant was unfairly dismissed and, based on the evidence presented, requested a finding in their favour.

The documentary evidence adduced in this case, shows that the Complainant was dismissed, on 22 January 2019, on the grounds of excessive absenteeism, based on 12 month rolling averages. Given that the absence management process, which eventually led to the Complainant’s dismissal, commenced in February 2017, the assessment of the Complainant's complaint of unfair dismissal must be considered against the background of the events which took place over that extended period.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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, or (b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“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 other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.

With regard to the issues of reasonableness, there is well established case law in this regard. In Looney v. Looney, [UD83/1984] the EAT referred to its role to ’..consider, against the facts, what a reasonable employer…would have done…’. This view built on the earlier observation by the Tribunal in Bunyan v United Dominions Trust, [1982 ILRM 404] that ‘the fairness or unfairness of a 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’.

It is not the function of the Adjudicator to establish the guilt or innocence of the employee. Rather, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

Another related factor to be considered is whether or not the decision to dismiss is proportionate to the gravity of the complaint and , indeed, as Flood J. observed in Frizelle v. New Ross Credit Union Ltd., [1997 IEHC 137] the decision must also be proportionate to the ‘gravity and effect of dismissal on the employee’. In applying these principles, regard must be had to the procedures used by the employer in reaching the decision to dismiss. In Pacelli v, Irish Distillers Ltd, [2004 ELR25], the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

With regards to the within case, the facts are straightforward and uncontested in the main. The evidence shows that, for a number of years, the Complainant’s attendance record was very poor and his level of absenteeism was significantly higher than the average for the Respondent’s business and also comparable industry statistics.

According to the evidence adduced, in February 2017, the Respondent commenced a process to address the issue through the Disciplinary Procedures. On 22 February 2017, the Complainant was issued with a Stage I Verbal Warning. Following this, the Complainant amassed a further 14.5 days absence by June 2017. As a result, the Complainant was issued with a Stage II Written Warning on 7 July 2070. From August to September 2017, the Complainant had a further 3.5 days absence, which led to him being issued with a Stage 3 Final Written Warning on 14 November 2017. This warning was to remain active for a period of nine months, which would see it expire in August 2018.

The evidence shows that, in the two-month period following the issuing of the final written warning, a further 26 absences were recorded against the Complainant. At this point, the Complainant was registering an overall absence rate of 18.7%. at the disciplinary meeting held on 7 March 2018 to discuss the situation, the Respondent decided to extend the Stage III Final Written Warning by a further three months to 13 November 2018.

In the context of the overall situation, I consider the the Respondent’s decision, following the meeting of 7 March 2018, to extend the final written warning by a further three months, to be a highly significant development in their management of the Complainant’s absenteeism. At a point in time when there was still five months to run on the Complainant’s final written warning, the Respondent decided to extend the period of the warning by a further three months.

In my view, such a decision could only be seen as sending a clear indication to the Complainant that the Respondent was reasonably and genuinely trying to assist him in addressing the precarious situation which existed at that point with regard to his employment. It may indeed have provided the catalyst for the Complainant’s self-disclosure on 15 June 2018, at a meeting which had been called to discuss two instances of absence which had occurred since March, that he was addicted to alcohol and prescription drugs.

This disclosure, coupled with the Respondent’s generous and supportive response in the circumstances, led to the Complainant attending a treatment/rehabilitation programme over the months June to August 2018. The certification, by the Respondent’s Occupational Health Unit on 22 August 2018, that the Complainant was fit to return to work suggested that the treatment was successful. However, the real success of the Complainant’s attempts to address his intolerable levels of absenteeism will only be judged on his record following return to work.

In the period between his return to work on 22 August 2018 and the closure of operations for the Christmas break, on 21 December 2018, the Complainant recorded 1.5 days absences, which were regarded by the Respondent as being uncertified or unapproved.   This represents an absence rate of 1.13% for the period in question, which is lower than both the Respondent’s in-house average which stood at 2.2% and the National industrial average withstood 2.9%.

Notwithstanding the fact that the above figures represent a very significant improvement in the Complainant’s attendance rate, when compared at any point in the previous 2/3 years, it is of greater significance that neither absence was related to the addiction issues, which were the source of the Complainant’s absences prior to his treatment/rehabilitation.

While the contentions of the Respondent that the ultimate decision to dismiss the Complainant related to his overall attendance record based on rolling annual averages is noted, the reality of the situation is that the termination of the Complainant’s employment was predicated on 1.5 days absence over a three-month period following his return to work after his treatment programme.

The submissions of both the Complainant and the Respondent, as set out above, clearly show that one of those absences related to a dental appointment during which the dentist assessed the Complainant as being unfit to return to work. The second absence, comprising of a half day’s lost work, took place on the day the Respondent was closing down of the Christmas break and arose as a result of unscheduled challenges experienced, on the day, by the Complainant in relation to childcare.

It is clear from the evidence that the Respondent had been extremely tolerant with the Complainant’s levels of absenteeism which were significantly above any comparable standard/average. Having reviewed all of the evidence, I am satisfied that there were a number of points in the disciplinary process when it would be completely justifiable and understandable for the Respondent to have terminated the Complainant’s employment.   However, the evidence also shows that, rather than take the ultimate decision, the Respondent decided to give the Complainant the opportunity to rectify the situation by extending the final written warning on two occasions.

In addition to the tolerant approach, as outlined above, the Respondent also acted in a very reasonable and supportive manner when the Complainant disclosed the situation in relation to his addiction. Not only did the Respondent provide direct support, through its Occupational Health Unit, with regard to the Complainant’s admission to a treatment program, but generously provided the Complainant with full pay for the duration of his absence from work while on the programme.

Consequently, against that background, it is difficult to reconcile the Respondent’s decision to terminate the Complainant’s employment based on the two incidents of absence that occurred following his return to work after treatment. In the disciplinary process which led to his dismissal, the Complainant was in a position to explain the reasons for his absence. In particular, with regard to the dental appointment, which took place on a day when he had actually attended work that morning, the Complainant provided verifiable evidence from the dentist confirming the reasons why he was not in a position to return to work. The evidence also suggests that on both occasions the Complainant sought to advise the Respondent of the situation, however, it is unclear as to whether this information was adequately or clearly passed to the appropriate authorities.

Having carefully considered all the evidence adduced, I am satisfied that any reasonable, objective observer would conclude that the Respondent’s decision to terminate the Complainant’s employment, at the point in time which they did, lacked the reasonableness and proportionality which the overall circumstances call for.

Consequently, taking all of the above into consideration, I find that the Respondent’s termination of the Complainant’s employment lacked reasonableness and proportionality to the extent that I consider the dismissal to be on unfair and, therefore, that the Complainant’s claim in this regard is well-founded.

In submission on behalf of the Complainant, his representative indicated that, as the Complainant had acquired alternative employment, he was seeking compensation as his preferred means of redress. Against the background of the reasonable and supportive approach taken by the Respondent, for the most part, in their dealings with the Complainant and his excessive absenteeism, I believe it would be inappropriate and unrepresentative of the overall approach to accede to the Complainant’s request that the award be extended to include a punitive element. Consequently, I am satisfied an amount of €10,000 represents fair and reasonable compensation in all circumstances.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision I award the Complainant €10,000 in compensation for the breach of his statutory rights.

Unfair Dismissal