Complainant

Respondent

Anonymised Parties

General Operative

Bakery

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-00030122-001

08/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030122-002

08/08/2019

The Complainant commenced employment with the Respondent on 15th August 2004 as a General Operative. He alleges that he was unfairly dismissed by the Respondent on 30th April 2019 and that he was not paid for the notice period as per his contract of employment.

The Respondent is a large bakery employing circa 200 employees. The Respondent submits that the Complainant’s employment was terminated on 30th April 2019 due to high levels of absenteeism and poor attendance at work over a prolonged period.   The Respondent denies that this dismissal was unfair.

There are 2 complaints for consideration:

CA – 00030122 - 001 under Section 8 of the Unfair Dismissals Act, 1969

CA - 00030122 – 002 under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA – 00030122-01

The Complainant submits that he was dismissed on 30th April 2019, he did not receive that decision in writing. He contends that he was suffering from anxiety and depression and that this condition had continued throughout the three years prior to his dismissal. He contends that the Respondent was aware of his condition and that he had provided verification of same from his GP.   He submits that he was a long - term employee of the Respondent with more preferential terms and conditions than employees who were recruited in recent times. He submits that this is the real reason why the Respondent terminated his employment. He submits that at all relevant times he provided medical certification as per his contractual requirements. He contends that he was not given the appropriate opportunity to improve his absence and that despite his appeal of his dismissal the decision to termination his employment was upheld. He has been out of work since his dismissal and has been actively seeking alternative employment since then. The Complainant is seeking reinstatement and compensation for his loss.

CA- 00030122-02

The Complaint submits that he commenced employment on 15 August 2004 and that his employment was terminated on 30 April 2019. He submits that based on this service he is entitled to 6 weeks pay in lieu of notice.   He contends that he did not receive any pay in lieu of notice.

CA – 00030122-01

The Respondent submits that the Complainant had excessive sickness absence over a prolonged period and that the matter had been addressed with him through the progressive stages of the company Disciplinary Procedure. The Respondent submits that the Complainant received a verbal warning as a result of poor attendance on 23 October 2017 which remained active for a 6- month period. Despite this warning there was no improvement and the Complainant was again disciplined, receiving a first written warning on 26 February 2018 for continued poor attendance. Again, this warning was active for 6 months.

Despite two previous warnings the Respondent contends that there was no improvement in the Complainants attendance and further absences resulted in him receiving a second written warning on 24 May 2018. This warning was active for a 12 -month period. The Respondent submits that the Complainant continued to have a poor attendance record, showing no improvement. As a consequence, the Respondent issued a final written warning to the Complainant on 26 November 2018. This warning was active for a period of 18 months. The Respondent submits that there was little improvement in the Complainant’s attendance throughout 2019, with further absences occurring between November 2018 and April 2019. The Respondent submits that as the Complainant already had four prior warnings on file, as an alternative to dismissal the Complainant was put on unpaid suspension for his further absences in late January/early February.

The Respondent submits that on Friday 19 April 2019 the Complainant was rostered to begin work at 8 pm. The Complainant had previously requested to take annual leave on this date, but the request was not granted due to staff shortages. At 7.30 pm on the night in question, the Complainant phoned in to advise that he would not be attending work as he had been sick throughout the day. The shift manager explained that he was short staffed for that night and requested that he attend work, but the Complainant refused and advised that he would call the following week. The Complainant was on holidays for the week that followed and made no further contact with the Respondent.

On Sunday 27 April the Complainant returned to work without notice.   On this occasion he was sent home as the Respondent had arranged to have his shift covered in the absence of any contact. A disciplinary meeting was held on Monday 29 April at which the Complainant was represented by a member of the works committee. In response to the number of days of absence without certification taken in 2019 the Respondent submits that the Complainant said he was not the worst. In relation to the absence of 19 April the Complainant did not accept that the Respondent was short staffed on the night but accepted “how it looked”.   He said that there was nothing he could do about the most recent case of absence.

The Respondent submits that the Complainant was suspended with pay pending decision and that   the meeting was adjourned. The meeting reconvened on 30 April to consider the matter further. The Respondent contends that the Complainant failed to offer any further explanation or persuasive argument in defence of his most recent absence and failed to accept that his levels of absence needed any improvement. In these circumstances the Respondent submits that there was no alternative but to terminate the Complainant’s employment. The outcome of the meeting was confirmed in writing by letter of 30 April and the letter also advised the Complainant of his right to appeal the decision.

The Respondent submits that the Complainant did appeal the decision to dismiss and the appeal was considered over three meetings held on 13, 20 and 24 May 2019. The appeal upheld the decision to dismiss the Complainant from the company.

The Respondent submits that every employer has the right to expect that all employees will present for work to carry out their duties and that the Complainant’s repeated and intermittent absences caused disruption to the operation of the bakery. His further failure to follow correct reporting procedures exacerbated the negative effects on his colleagues and on production. The Respondent submits that the Complainant was brought through the progressive stages of the Disciplinary Procedure but there was no substantial improvement in attendance or compliance with reporting requirements. Additionally, the Respondent contends that throughout the various disciplinary hearings the Complainant never raised any specific medical condition as giving rise to the absences, medical certificates, when provided did not shed any light as to a specific health issue and indeed many of the absences were uncertified. It was only at the appeal hearing after his dismissal that the Complainant first raised the matter of anxiety and depression.   In all these circumstances the Respondent submits that the dismissal was fair.

CA – 00030122-02

The Respondent accepted that pay in lieu of notice had not been given to the Complainant upon termination of his employment. The Respondent appeared not to be fully aware of obligations in this regard. When this was clarified at the hearing the Respondent undertook to arrange payment of same.

CA – 00030122-01

The facts of this case are not in dispute. Both parties agree that the absences referred to and the failure to report those absences in accordance with the relevant company policy did occur.   Both parties also agree that the Respondent did utilise the full progressive stages of the disciplinary procedure in addressing the within matters. It remains therefore to be considered whether the actions of the Respondent in issuing the ultimate sanction of dismissal was reasonable and proportionate in the circumstances described.

Section 6 (1) of the Unfair Dismissals Act states that “the dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances, there are substantial grounds justifying the dismissal”.  

Section 6(4)(b) of the Unfair Dismissals Act, 1977 states that “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:

(b) the conduct of the employee…”

The Respondent’s Employee Handbook clearly sets out the expectation on employees to maintain high standards of attendance and confirms the potential consequence for failing to do so. The Respondent repeatedly addressed the matter with the Complainant, ultimately through the progressive stages of the Disciplinary Procedure. In fact, the Respondent applied a sanction, other than dismissal, in early 2019, rather than apply that ultimate sanction at that time. At no time throughout 6 progressive disciplinary hearings did the Complainant ever raise any specific medical condition as underlying his absences, medical certificates provided did not refer to any mental health issues and many absences were uncertified. It was only at the appeal of the dismissal that the Complainant raised anxiety and depression as being the underlying cause for his absence, by which time the Respondent did not find this position credible.

The Complainant was clear that his absences were genuine and that because he had submitted medical certificates for many instances he should not be dismissed. He was of the view that the Respondent wanted to terminate his employment due to his preferential terms and conditions.   However, he offered no evidence to support this contention.

I have no doubt that the Claimant is sincere in relation to the genuineness of his absences. However, throughout the progressive disciplinary hearings he provided no evidence or information to support a claim that he was suffering from an underlying mental health condition. Medical certificates provided by him pointed otherwise.

However, I am also persuaded that the Respondent was not actively seeking to terminate the Complainant’s employment. The Respondent could have made the decision to dismiss at the disciplinary meeting held in early 2019 but chose instead to apply another sanction short of dismissal at that time. I am also persuaded by the evidence of the General Manager that the frequent and intermittent absences of the Complainant, particularly without appropriate and timely contact was having a detrimental impact on the efficiency of the operation and on his colleagues.

It is accepted that the employment relationship is based on mutuality of obligation i.e. the employer provides employment for consideration of wages and the employee undertakes to provide work in return for consideration. It follows therefore, that an employee must attend work in order to fulfil their contract. Such frequency and levels of absence as are present in this instance cannot be viewed as meeting that obligation.

In the case of Mooney and others v Rowntree Mackintosh Ltd, the Claimants argued that because they were ill during periods of short-tern intermittent absence and such illness was medically certified they should not have been penalised and would not have been penalised by a reasonable employer. The EAT held that whilst the Claimants were without blame in relation to their absences, “blameworthiness is not an essential factor in the fair dismissal of an employee for illness-related absenteeism.”

In another case heard by the EAT (Pfizer Chemicals Corporation v Carroll) the Tribunal stated that “What is required, in our judgement, is firstly that there should be a fair view by the employer of the attendance record and the reasons for it and, secondly appropriate warnings, after the employee has been given an opportunity to make representation. If then there is no adequate improvement in the attendance record, it is likely that in most cases the employer will be justified in treating the persistent absence as a sufficient reason for dismissing the employee…”

Based on the submissions, supporting documentation and arguments advanced at the hearing I find that the Respondent did consider carefully the attendance record and the reasons for absences based on the information provided to them.   I find that the Respondent went to some lengths to give the Complainant the opportunity to address the attendance record and non- compliance with reporting requirements or to raise mitigating reasons for the absences and I believe that the Respondent simply reached the point of saying “enough is enough” and concluded that the Complainant’s attendance record was not going to improve.

In all of these circumstances I find that the dismissal was fair.

CA-00030122-02

Both parties accept that the Complainant has an entitlement to 6 weeks’ pay in lieu of notice under the Minimum Notice & Terms of Employment Act, 1973 and I so find.

CA – 00030122-01

Based on the oral and written evidence and information provided by the parties I consider this dismissal to be a fair dismissal. Therefore, it is my decision that this case fails.

CA-00030122-02

Based on my finding above it is my decision that the Respondent is to pay the Complainant 6 weeks pay in lieu of notice. If this payment has been already made subsequent to the hearing no further payment is due. Only one payment of 6 weeks to be applied.

Unfair dismissal, intermittent absence

Pay in lieu of notice