Complainant

Respondent

Anonymised Parties

A Materials Handler

A Promotional Product Company

Representatives

Seamus Roe & Co. Solicitors

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-00032178-001

13/11/2019

The complainant was employed by the respondent as a Materials Handler from 14th March 2000 until his position was terminated on 23rd April 2019. The complainant was also paid for eight weeks in lieu of his notice entitlements. The complaint was submitted to the Workplace Relations Commission (WRC) on 13th November 2019 and relates to an alleged unfair dismissal.

The respondent contends that the complainant was not unfairly dismissed. The respondent acknowledged the complainant’s long service and that he was a valued employee, however the respondent contends that it acted reasonably in dismissing the complainant for repeated breaches of the Timekeeping and Absence Policy.

The respondent outlined that the complainant had excessive incidents of absence over a prolonged period and was subject to the respondent’s disciplinary procedures as a result. The respondent outlined that in March 2018 the complainant was given a verbal warning following a disciplinary process relating to approximately 51 days of absence in eight periods of sick leave between September 2017 and 9th February 2018.

The respondent stated that since receiving the verbal warning in March 2018, there was a further 14 days of absence in seven periods of sick leave up to 6th June 2018. The respondent stated that a further disciplinary process meeting took place and the complainant received a first written warning on or about 2nd July 2018.

The respondent stated that a further disciplinary meeting took place on 26th July 2018 as a result of the complainant being late on two occasions and leaving work early on another occasion. The respondent stated that there was no formal disciplinary warning given to the complainant as a result of this process although the complainant was moved to another area of the business where his level of absence would have less of an impact on production. The respondent stated that the complainant did not appeal any of the warnings received as a result of the disciplinary process but did appeal the change of work location which was unsuccessful.

On the 15th October 2018 a further disciplinary meeting took place as the complainant was absent for a further four days of absence in four periods of sick leave between July 2018 and early October 2018. The complainant was issued with a final written warning on 22nd October 2018.

On the 4th February 2019 a further disciplinary meeting took place as the complainant was absent for a further four days of absence in four periods of sick leave. Having informed the respondent that he suffered from Depression, the complainant was assessed by the Occupational Health Physician and was deemed fit to return to work immediately despite “personal stressors” which were not divulged by the complainant. The complainant remained absent on sick leave from 5th February 2019 until 16th April 2019. On his return the complainant’s employment was terminated. An appeal hearing took place on 10th May 2019 which proved unsuccessful.

The respondent stated that it provided every possible support to the complainant throughout but ultimately was left with no option but to dismiss him after repeated breaches of the Timekeeping and Absence Policy.

The respondent cited the cases of International Sports Co Ltd v Thomson, [1980] IRLR 340, Pfizer Chemicals Corporation v Carroll UD 749/1980, Mooney and Others v Rowntree Mackintosh Ltd UD473,474, 475 AND 478/1980, Behan v An Post Limited UD320/2006, Dzierzawska v Wincanton Ireland Limited UD7/2012 and O’Gorman v Yves Rocher Ltd UD466/2015 in support of its position that it acted reasonably at all times but given the level of sick leave as well as the significant number of unexplained short absences, it was left with no alternative but to terminate the complainant’s employment.

The complainant stated that he had long service with the respondent and was experiencing personal problems throughout the period in question. The complainant stated that his representation at the disciplinary meetings was limited to a work colleague which he claims was unfair and restrictive. The complainant also stated that the decision to dismiss him was unfair on the basis that the respondent failed to take into account the improvements in his attendance since he received the first written warning in July 2018. The complainant stated that he was unaware of the corrective action plan associated with the first written warning or the fact that he had an opportunity to appeal the warnings that were issued to him. The complainant further stated that the respondent behaved unreasonably in dismissing him as it failed to take into account the fact that he had attended counselling for six weeks prior to his dismissal in an attempt to improve his health and increase his attendance at work. The complainant also alleged that the respondent considered issues that occurred after the meeting of 4th February 2019, in its decision to terminate his employment. The complainant contends that this was unfair as he was not given an opportunity to respond to these issues.

In conclusion, the complainant contends that the respondent acted unreasonably and that its decision to dismiss him was unfair.

Mitigation of Loss

The complainant’s representative confirmed that the complainant remains unfit for work and has been certified as such since June 2019. In those circumstances, the complainant has been unable to seek employment in an effort to mitigate his losses.

I have considered the submissions of both parties to the within complaint.

It is clear that the complainant had a significant level of absence in the eighteen-month period between September 2017 until February 2019 (approximately 73 days of absence in 23 periods of sick leave.) The complainant’s absences were a mixture of certified absences and short term uncertified sick leave. The complainant was also absent on sick leave from February 2019 until April 2019 and unfortunately was certified medically unfit to work from June 2019 and remains as such to date.

The respondent provided detailed written submissions and appendices at the adjudication hearing and gave a detailed chronology of the processes it undertook in line with its policies and procedures in relation to the eventual dismissal of the complainant from his employment.

The complainant’s representative argued that the respondent acted unreasonably for various reasons and that the complainant was unfairly dismissed. In particular the complainant’s representative argued that the complainant was not facilitated with representation at the disciplinary hearings. On this point I note the respondent’s contention that the complainant attended the meetings without formal representation and did not raise any issues of disatisfaction at the time.

The Applicable Law

Representation at disciplinary process

The complainant outlined at the adjudication hearing that he was denied formal representation (legal or otherwise) during the disciplinary process. The complainant stated that his right to representation was limited to a work colleague at the time.

On the issue of legal representation, I note the Supreme Court decision in Burns and Hartigan v Governor of Castlerea Prison [2009] 20 E.L.R. 109 which provides that an employee may be entitled to legal representation in a disciplinary process in certain “exceptional circumstances”. The decision in Burns provides a list of factors that require consideration prior to deciding if exceptional circumstance exist and whether legal representation is required. These factors are as follows:

the seriousness of the charge and the proposed penalty, whether any points of law are likely to arise, the capacity of the particular person to present his or her own case, procedural difficulty, the need for reasonable speed in making the adjudication, that being an important consideration and the need for fairness between the different categories of people involved in the process.

This has been clarified by the Court of Appeal in its decision in the case of Irish Rail v Barry McKelvey (2018) IECA 346, which states as follows:

“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view the allegation of misconduct against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in a position to deal with adequately with the assistance of {his trade union official}.”

Having considered the factors above and applying them to the instant case, I do not find that such circumstances existed that would have necessitated the requirement for professional representation during the disciplinary process. The respondent was acting in line with its policies and procedures, copies of which had been provided to the complainant, and there were no issues of dissatisfaction raised by the complainant at any time.

The Unfair Dismissals Act, 1977.

Sections 6(1) and 6(4) of the Unfair Dismissal Act provide as follows:

6.(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.

6.(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes 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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or 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 any statute or instrument made under statute.

The complainant was dismissed in line with the provisions of Section 6(4)(b) of the Unfair Dismissals Act, 1977.

Band of reasonable responses

As to whether there were substantial grounds for the Complainant’s dismissal on the grounds of his conduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In line with the above decision the role of the Adjudication Officer is to decide whether the decision of the respondent to dismiss the complainant was reasonable having considered all of the circumstances of the complaint. Given the level of the complainant’s absence over a prolonged period of time as well as the efforts of the respondent to support the complainant, I am satisfied that the ultimate decision to dismiss the complainant from his employment was within the range of reasonable responses of a reasonable employer. Accordingly, I find that the complainant was not unfairly dismissed.

Having considered the submissions of both parties, I find that the complainant was not unfairly dismissed. Accordingly, the complaint is not well founded.

Unfair Dismissal