Complainant

Respondent

Anonymised Parties

Complainant

Respondent

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-00029174-001

19/06/2019

The complainant was employed as an operative at a production facility from 1996 until her dismissal on January 9th, 2019 with immediate effect albeit with pay in lieu of notice. She was suspended on full pay on July 27th, 2018. Prior to her suspension she was employed at weekends working twelve hours shifts on Saturday and Sunday. Following her suspension there was a report from a review and two disciplinary meetings following which the decision to dismiss her was issued by the respondent. There was an appeal hearing which was unsuccessful for the complainant. A detailed letter of dismissal referred to absences, a recurring pattern of previous behaviour, dissatisfaction with accounts given for certain absences; a lack of credibility regarding an account given of an accident at work; attending for work under the influence of alcohol and consequently unfit to work; informing other staff of an accident at work and later denying those reports, saying there was no accident; non-attendance at work owing to alcohol consumption; a lack of trust in her accounts versus the evidence; a high level of absence over a period of years, some due to being facilitated by the respondent to take time out to address her medical issues and a general inability to provide a consistent attendance over recent years. Concern was expressed about the blaming by the complainant of other staff for certain events and then accusing them of lying during the disciplinary process.

Much of the case presented at the hearing related to procedural issues of appeal, and the fairness or otherwise of the decision to dismiss. There were no witnesses called. Compensation was sought by way of remedy. The complainant is not in employment. It was submitted on her behalf that following the dismissal she was simply unable to look for work and was unwell until July 2019,when she began searching for work online. She is in receipt of a disability allowance which allows her to work on a graduated income formula. This aspect was the subject of some debate between the parties at the hearing as to whether the complainant is in fact fit for work, actively seeking work and/ or if the disability allowance would affect any formula for compensation.

The fact of a dismissal not being in dispute, the respondent defended the decision as one of conduct encompassing all of the complainant’s behaviour as set out in the letter of dismissal. As such , it was contended that the requirement to have a graduated approach to the imposition of disciplinary sanctions did not apply in this case. The complainant was accommodated by the respondent in her efforts to address her underlying health problems associated as recently as mid- 2016 and previously in 2011. When she returned to work in March 2017 she received a final written warning.

The record provided by the respondent showed short term absences in June and December 2017 using some holidays and unpaid leave. In January 2018 she was again absent and in a text on January 4th said her mother was hospitalised. She was absent with increasing frequency in February and March 2017- the absence in March was certified and extended. On March 20th a text said she was in hospital. This was the second day of a two-day absence. In April 2018 there were further absences and for one of these in April she referred to her mother attending at hospital. Despite written requests to do so she failed to provide any evidence of this attendance, later citing data protection. At her return to work interview at the end of April, she was warned of the potential consequences of continued absences. The HR manager met with her at the second attempt on May 23rd at which meeting she was asked to provide evidence for certain absences and the letter also referred to inconsistencies and repetitive reasons for absences. On May 26th she was said to have hurt her back at work. She was brought to hospital but left the a and e department citing various reasons such as they were too busy. Following a previously cancelled medical review, an Occupational Report of 31 May advised that the information provided at her assessment was ‘inconsistent’ with a workplace accident. On May 29th HR wrote her setting out details of the position discussed with her at the meeting on May 23rd. In June in response to the HR letter of May 29th she referred back to a complaint of sexual harassment she made in 2016. She said she was in counselling related to that incident from November 2017,she apologised for reporting that she was in a and e in February when she was not. She sought all of the details of her absences and the documentation relating to the complaint she made in 2016. On June 3rd a worker reported concern to her supervisor about her conduct and he sent her home as unfit for work due to alcohol consumption. On June 9th she refused to sign an accident report for the incident reported on May 26th. She sent in certificates in June citing depression as the cause of her absences that month. In July she rang the company nurse reporting that she had hurt her shoulder in an accident, one she would later admit had not occurred. She rang a senior manager   in July saying she was being unfairly treated. He was concerned about her demeanour and advised her to return to work the following day but instead she went out sick also ringing another manager saying there was no accident at work and that she had been drinking on the Friday and Saturday. On July 27th she was suspended with pay to allow for a review. In August 2018 the respondent received a solicitor’s letter which the respondents counsel made much of at the hearing-as generally unhelpful to the complainant in the eyes of the respondent. The review was completed in August and the complainant was invited to a disciplinary meeting in October. There were delays caused by the complainant in convening a second disciplinary meeting in November which seemed to indicate that the complainant was either ignoring the seriousness of the matter or claiming she did not really understand the seriousness of a clearly set out disciplinary process. The respondent had demonstrated the utmost patience with the complainant over a period of years. The respondent was entitled to take into account the conduct of the complainant in the period covered by the final written warning when that conduct was a repeat of similar and directly related behaviour both during and shortly after the period of that warning. The complainant knew from her return to work interviews that there was an issue regarding her attendance and the respondent could not be faulted simply because they did not initiate formal disciplinary proceedings to a further stage before the end of March 2018,when the written warning expired. The conduct of the complainant in her repeated absences, her unverifiable reasons for absences, changing her accounts and then denying those accounts breached the essential trust of the respondent in the complainant most significantly when she sought to blame others and accused them of lying. The respondent saw no prospect of a change in the pattern of absences or conduct based on the evidence before them after the review and two disciplinary hearings. No case was ever made to the respondent or in the claim before the WRC, of a disability related claim or complaint. It was the conduct of the employee which had led to her dismissal. On the procedural aspects, she had not put forward any witnesses to be interviewed at any stage and neither had she sought to cross examine any witness. She was represented at her appeal hearing by a local union representative which was agreed at the outset of the process and there were no complex legal considerations which would have necessitated the involvement of a legal representative. The complainant was represented by a union official at the appeal hearing and each of the grounds of appeal was dealt with extensively in a letter to the official dated 25 July 2019.

The submission on behalf of the complainant followed the same line as the appeal of the dismissal that the dismissal was unfair as the employer did not fully adhere to procedures ;the investigation was flawed, and the sanction was disproportionate. There was no clearly defined progressive process used by the respondent and that the complainant would say that this began in 2016 when she raised a complaint of sexual harassment. On the latter point, reference was made to the concluding line of a letter in relation to this matter which referenced serious matters regarding her own performance which needed to be addressed. Of the eleven absences cited in a letter of 29 May 2018,five dated back to 2017 but were only being raised with the complainant some months later. The complainant’s reasons for some of her absences related to her mother in April 2018 was now being queried and the complainants own reported attendance at a and e in February 2018. In her response in June 2018,the complainant referred back to the sexual harassment issues of 2016, the difficulties of caring for her mother and being in receipt of counselling. It was submitted that it was clear that the complainant was ill. The complainant sought documentation related to the 2016 complainant and at a meeting with a HR Manager in July, he began to question her regarding the matters she had raised in relation to the complaint of 2016 whereupon the complainant began to feel uncomfortable. His involvement in the final decision-making meeting was criticised. There followed a letter of July   27th which informed the complainant of a full attendance review together with references to her not providing evidence for absences previously requested by HR in May and other matters relating to the issues which had arisen, and which would remain part of the scenario, regarding reported or unreported accidents at work. Reference was made to a statement in the letter of suspension of July 27th advising the complainant to refrain from discussing the matter with anyone, which the complainant took to mean she could have no access to any of the individuals who had provided statements in the matters under review. SIPTU pointed to the inclusion of earlier absences stretching back to 2013;the non-impartiality of the reviewer of her attendance; that she was not allowed to cross examine witnesses; the inclusion of agreed absence designed to accommodate her illness in the total figures for absence. The points regarding the absences and annual leave were contained in the solicitor’s letter of August 2018. It was submitted that the complainant did not have any valid warning in place at the time of her suspension or dismissal and taking all the factors into account, the sanction of dismissal was disproportionate. The grounds of appeal set out at the appeal hearing were : not following the disciplinary procedures; failure to follow fair procedures in not allowing her to approach other employees; not being allowed legal representation; that the decision maker at the disciplinary process was not impartial as referenced in the solicitor’s correspondence. . A final written warning would have been the appropriate sanction in the circumstances.

This dismissal was not unfair. In arriving at this conclusion, consideration was given to the fact that is losing her job ,the complainant lost not only her basic income, but also access to a bonus scheme, a defined benefit pension scheme and a sick pay scheme, all after many years of employment. However, based on the evidence as presented, it is accepted that the respondent arrived at the decision to dismiss after an extended period, in the face of a repeating pattern of absences, many at short notice utilising annual leave, unpaid leave and sick leave with no obvious sign of a likely change in that pattern of behaviour or an ability to maintain a capacity to tackle the underlying problem of excessive alcohol consumption which caused not only the absences, but the attendance of the respondent at work under the influence of alcohol. In addition and for whatever reason, there was the erratic behaviour of the complainant which in some instances at least, seemed to result in an attempted diversion away from her own conduct to another incident or event, the account of which would then alter e.g. a reported accident at work, or for which she could provide no evidence that the event occurred e.g. attending hospital with her mother or attending the a and e Department at the hospital. At her second disciplinary hearing, the complainant referred to another underlying medical problem and her acceptance for a disability allowance after the termination of employment may well indicate there was another underlying health issue-however no medical evidence or details of such a disability which could have been considered were put forward to the employer. This was an employer who had previously accommodated the complainant in her efforts to address her known medical problem with alcohol and cannot be regarded as being dismissive of the complainant’s difficulties at any stage. What they observed at the disciplinary meetings was someone willing to acknowledge her absences but little else and willing to blame other employees for her erratic behaviour, including managers who she would confided in on previous occasions. This was a case of capacity and conduct surrounding the one person and it is not unreasonable to conclude that the management had simply had enough, seeing no prospect of a sustainable and manageable improvement. The time and energy consumed by the complainant in 2017 and 2018 is quite striking given that she worked only two days per week-at weekends. That managers lost patience is not surprising and was neither unfair or unreasonable. The case made for and on behalf of complainant essentially narrows down to the ground of a disproportionate sanction. To be clear, I find no flaw in the procedures followed by the respondent which could justifiably lead to a finding of an unfair dismissal. The complainant was adequately represented, she knew the issues she had to address, she offered no witness and no person for cross examination. The manager she referenced about a concern that he was involved in the decision to dismiss was the same manager she had phoned outside of working hours in July 2018 to express her concerns about fairness and thanking him for his understanding and listening at a meeting a few days earlier. Thus, her later expression of concern about his involvement runs counter to her own positive attitude to him prior to her suspension. Reverting to the point about the degree of the sanction, there is an issue of consideration about the expiry of the previous final written warning and the confluence of all periods of time concerning the conduct of the complainant. The expiry of a warning in any process means just that, it has expired. Counsels argument that an employer can go back in time when that time is adjacent or when the offence is repeated cannot be accepted as a generalisation , for to do so would be to contradict the plain meaning of the term expire and potentially leave an employee in a never-ending process. The respondent in this case is saved by the fact that the complainant was told of the requirement to be present for work on February 18th, 2018 and again on March 25th, 2018,both inside the period of her written warning of March 2017. The matter of the complainant’s erratic conduct is also a significant factor in this matter as were the differing accounts of the various events and her decision to blame others or other events at every stage rather than taking responsibility for her own contribution to the need for the respondent to investigate and consider matters in addition her absence levels. Her attendance under the influence of alcohol and leaving work for the same reason are not minor events in the overall context. She was aware of the managements concerns regarding her absences in February and March but was absent in April when she was warned at a return to work meeting on April 28th of the possibility of termination resulting from a failure to show an immediate and sustained improvement in her attendance. Instead of heeding the seriousness of the situation, she cancelled health appointments ,left the hospital where she was taken after she reported an accident which she would later say did not occur, informed the medical adviser that it was the employer who was causing her stress, exacerbating her depression and anxiety. This assertion occurred after she was informed that the employer was concerned about her absences and conduct and sought evidence to support some of her absences. When she did reply, she admitted to not telling the truth about one absence and then began another chain of dialogue about events in 2016. It was not the process which was never ending by July 2018-but the absences and related conduct of the complainant. In all the circumstances, the action of the respondent in deciding on a dismissal could not be regarded as disproportionate. It may well be that the complainant was unable to help herself in any meaningful way which could have influenced the employer to make another decision, but the employer in this instance cannot be held to account for this conclusion.

I find that the decision to dismiss the complainant in this case was not unfair under the Unfair Dismissals Act 1977,as amended.

Absence related dismissal; conduct.