Complainant

Respondent

Anonymised Parties

An Employment Advisor

An Employment Advice Service

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-00032212-001

12/11/2019

The complainant joined the respondent organisation on October 10th 2016 as an employment advisor. In this role, he provided support to people referred to the Jobpath programme by the Department of Employment Affairs and Social Protection. He was dismissed on June 17th 2019 because on 11 occasions over the previous 12 months, he was absent for 25 days.

On the form he submitted to the WRC, the complainant asserts that some of his absence was because of stress at work and he also claims that, in dismissing him, his employer did not follow the correct procedure.

Chronology Leading to the Complainant’s Dismissal

The complainant’s attendance was perfect during his probation from October 2016 until April 2017, and until July that year, when he was absent for four and a half days.   He was absent again in August, September and October.  On October 31st 2017, following a disciplinary investigation into 19.5 days of sickness absences and two days of unauthorised absence, the complainant was issued with a final written warning. The note of the disciplinary hearing shows that the complainant had been suffering from an ear infection which had caused him anxiety.

At the end of November 2017, the complainant had been absent for four days without contacting his manager. Following a disciplinary hearing on December 1st, on December 12th, he was issued with a second, final written warning.

Further absences occurred in February, March and April 2018. A disciplinary hearing took place on May 8th and on May 11th, the complainant was dismissed. By that stage, he had been absent 17 times for 33 days. The complainant appealed against his dismissal and on June 11th, his appeal was successful and the sanction was reduced to a final written warning. He returned to work on June 12th. Due to difficulties the complainant was having in the office where he was based, he was transferred, with his agreement, to a different office reporting to a different manager.

By the end of September 2018, the complainant had been absent again on three occasions for nine days, plus an additional six days of unauthorised absence. On November 14th 2018, he attended an absence review meeting with his line manager at which he confirmed that he had availed of counselling through the respondent’s employee assistance programme. His manager referred him for an appointment with the company’s occupational health consultant (OHC). In February 2019, the occupational health consultant said that the complainant was fit for work.

On February 25th 2019, the complainant attended a disciplinary hearing to discuss his ongoing absenteeism. On February 28th, he was issued with a further final written warning.   By the end of May, he had been absent again for four and a half days. He attended an absence review meeting on June 5th. When he attended a disciplinary meeting on June 14th, he had been absent for 25 days over 11 occasions in the previous 12 months. On June 17th, he was dismissed. In a letter of the same date, the deciding manager set out the reason for his dismissal as follows:

“We discussed the matter fully on Friday, 14th June where you put forward your case in this regard. Having considered your explanations, I do not find that they provide a reasonable explanation for your continued absence which is highly unacceptable and as such significantly impacts the service delivery to our clients and the wider team. I conclude that the company has made many attempts to support you and gave you a number of opportunities to achieve an acceptable attendance record which unfortunately has not transpired.

“Therefore it is with sincere regret I have taken the decision to terminate your employment with immediate effect. You will receive payment in lieu of one month’s notice on 28th June 2019 along with any outstanding payments due to you.”

On June 25th, the complainant appealed against his dismissal; however, in a letter of July 24th, the decision to terminate his employment was upheld.

It is the respondent’s case that the dismissal of the complainant was reasonable in the circumstances where their OHC found that he was fit for work and that there were no medical issues preventing him from coming to work regularly. The respondent had no issue with the complainant’s performance or the quality of his work and Mr Jolley described him as being “of benefit to the company.”

Mr Jolley submitted that the respondent did not adhere strictly to its own disciplinary procedure; four final written warnings were issued before the complainant was dismissed.   Mr Jolley argued that this was to the complainant’s advantage. The decision to overturn the complainant’s dismissal in May 2018 was also to his benefit.

Evidence of the Complainant’s Line Manager

The complainant’s line manager, “LM,” said that he was one of eight employment advisors who reported to her. She said that each advisor has a case load of around 120 clients. Clients must attend a meeting with an advisor every 15 days and the organisation is audited against the outcome of these meetings, which have the objective of directing people towards employment.

When the complainant joined her office in June 2018, LM was aware of his absence record and on his first day on her team, she said that she met him and informed him that she was aware that he had had a problem with his attendance. She said that she talked him through the available training and she assigned a mentor to him. LM said that the complainant was a good performer when he was at work and that he got on well with his colleagues. She said that the only problem was his absence.

LM said that when an employment advisor is out of work, their meetings have to be picked up by another team member. Apart from the added workload, this means that clients have to meet a new advisor, which creates a sense of disconnection and disorganisation for them.   LM said that when the complainant was absent, his team members had to do his work. Attendance problems then started to surface across the team.

LM said that between her and her deputy manager, they worked collaboratively with the complainant, they referred him to the OHC and gave him time off to attend counselling.   He was given compassionate leave when a family member was in hospital.

LM was asked about the absence review meeting with the complainant on June 5th 2019, the purpose of which was to draw his attention to the problems cause by his absence and to try to identify the underlying cause. Asked if the complainant was made aware of the seriousness of his absence, LM said that he knew that he was likely to be dismissed.   She said that she was surprised that the complainant didn’t bring a colleague with him to the meeting.   When she tried to focus the discussion on the absence problem, LM said that the complainant kept referring back to his time before he transferred to her office a year previously.

Cross-examining of the Line Manager

In cross-examining, the complainant said that, at the meeting of June 5th 2019, he was offered the opportunity to discuss anything else that might be affecting his attendance. He said that he referred himself to the employee assistance programme.   Referring to the notes of the meeting, the complainant said that LM didn’t give him a chance to put his case forward. LM responded that the notes show that the complainant said “yes” and “okay” in response to her summary of the problem, but she expected him to give her an explanation for his absence.

The complainant asked LM what she was relying on to show that he knew he would be dismissed. LM said that the final written warning issued in June 2018, and the previous warnings, all refer to the possibility of being dismissed if the attendance problem was not resolved. The complainant said that he knew that it was possible that he could be dismissed but he asked LM why she did not tell him directly.

Re-directing Questions to the Line Manager

Following the complainant’s evidence, Mr Jolley asked LM some further questions regarding his allegation that he was bullied by her when he moved to her office in June 2018.   LM said that an incident occurred where the complainant did not act in compliance with their procedures regarding correspondence to be sent to a client. She said that she brought this to the complainant’s attention and that he over-reacted to a routine instruction to do something in a certain way.   She said that the complainant sent her an email and she was surprised at the contents. It was apparent to her that he was trying to allege that he was being bullied. She said that she replied that what he had done was unacceptable.

Evidence of the Manager who Conducted the Disciplinary Hearing

The Manager who conducted the disciplinary hearing, “DH,” is based in a midlands office and had no previous connection with he complainant. On June 14th 2019, he said that he conducted a disciplinary meeting and reviewed the complainant’s attendance over the previous 12 months. He said that he knew that the complainant had availed of support from the employee assistance service. DH said that he gave the complainant an opportunity to explain the reason for his absence but he was surprised by his reference to his experience of working at the office he was in before he transferred to LM’s team. DH said that he told the complainant that he would check out an allegation that he was bullied when he worked at the previous office. He said that he contacted the HR department and he decided that the issue wasn’t relevant to the absence problem over the previous 12 months.

At the meeting, DH said that the complainant didn’t challenge the accuracy of the record concerning his absence, but accepted that it was correct. He said that the complainant was aware of the potential outcome of the meeting, and he said that he knew that any absence could mean that he could lose his job. He was aware of this because in February 2019, he was issued with a final written warning.

Cross-examining of the Manager who Conducted the Disciplinary Hearing

In cross-examining, the complainant asked DM if he recollected that he told him that his line manager bullied him about not sending a letter to a client. DM said that there were no allegations of bullying against his line manager.  

The Reason the Complainant was Dismissed

For the respondent, Mr Jolley said that they accept that they have not followed the disciplinary process with 100% accuracy, but he argued that this has not prejudiced the complainant in any respect. To the contrary, he was given every reasonable opportunity to improve his attendance, was given every reasonable support and opportunity for improvement and was provided with medical advice, counselling and the offer of reduced working hours. Despite all of this, from the beginning of his employment in October 2016 until he was dismissed in June 2019, he failed to properly perform his obligations under his contract regarding attendance at work. Mr Jolley submitted that any technical non-adherence to the stated policy was at all times to the benefit of the complainant and any suggestion that the respondent did not adhere to fair procedures is refuted. The respondent’s case is that it has exceeded it obligations to the complainant, and such excessive assistance cannot be a cause for criticism by him.

While the complainant was in work, he performed his duties well, but his absenteeism and his failure to provide appropriate medical certificates or to improve on his attendance record resulted in the termination of his employment.

It is the respondent’s case that they operate a fair and balanced policy to manage absenteeism and that this policy has been applied in a consistent manner in favour of employees. Despite the availability of support and opportunities to address his attendance problem, the complainant did not improve on his significant history of extraordinarily regular absenteeism.

The Legal Position

The respondent submitted that the complainant was dismissed in accordance with section 6(4)(a) of the Unfair Dismissals Act, as it arose from his failure to perform the work that he was employed to do. The complainant was provided with copies of the respondent’s and disciplinary procedure and the process that resulted in his dismissal was rational and fair.

In terms of legal precedent, Mr Jolley referred to the high court case of Baile Atha Cliath Dublin Bus v Claire McKevitt [2018] IEH 78, where Ms Justice Ní Raifeartaigh stated:

“However, what is clearly relevant to the present case is the decision of the High Court (Lardner J.) in Bolger v Showerings [1990] ELR 184, where it was held that, in a case involving dismissal for incapacity, the onus is on the employer to show:

i.   That it was the incapacity that was the reason for the dismissal

ii.   The reason was substantial

iii.   The employee received fair notice that the question of his dismissal for incapacity was being considered; and

iv. The employee was afforded an opportunity of being heard.”

The respondent relies on the principles set out in the Bolger case, in the context of a medical report which confirmed that the complainant was fit to attend work and carry out all his duties. The complainant failed to improve, even where a number of warnings were in place and he was afforded fair procedures.   At all times, Mr Jolley said that the complainant was aware that his attendance was causing concern to his employer and that his dismissal was in prospect if he failed to improve.

Evidence of the Complainant

In his direct evidence at the hearing, the complainant said the in April 2018, he informed a HR manager that a manager in the office where he worked “made my life hell.”   He said that when he moved to the second office in June 2019, he was bullied by his line manager there. He said that his complaint in April 2018 was ignored by HR. When he moved to the second office, the complainant said that he was “shaking in fear and distress” that he would be fired.

In relation to the procedures followed during the management of his attendance problem, he said that he “didn’t receive anything other than a final written warning.”   He said he received four final written warnings.

At the absence review meeting on June 5th 2019, the complainant said that he didn’t get an opportunity to speak. He could have explained that his attendance had improved, but he said that he wasn’t allowed to say this. At the meeting, he was given a letter inviting him to a disciplinary hearing. His manager had this letter prepared and printed before the meeting started. This has led him to a conclusion that he has a good case regarding his dismissal. He also said that in the letter inviting him to the absence review meeting on June 5th and the disciplinary hearing on June 14th, he was not informed that he could be dismissed. If he had known that this was a possibility, the complainant said that he would have brought legal representation or a colleague.

The complainant said that his managers never said that his absence had implications for the clients and his colleagues and that this argument is false. He said that his absence didn’t impact on clients or on the wider team and there is no link between attendance and performance.

It is the complainant’s view that, in April 2018, he should have got a written warning and not a final written warning, and then the bullying issue should have been dealt with. He disputes the record of the days that he was absent without authorisation and he said that he contacted the company on those days.

Cross-examining of the Complainant

Mr Jolley referred to the fact that the complainant was not absent on any days during the six months of his probation; however, between July 2017 and June 2019, he was absent for more than 80 days. The complainant said that accepts that he was dismissed because of his absence, but that he does not accept that his absence had an effect on the clients or on his team.

Mr Jolley said that the first time he mentioned problems with his line manager was at the disciplinary hearing in June 2019. The complainant said that he didn’t make a complaint about his line manager because he didn’t think he would get a response from the HR department.

Mr Jolley referred to the final written warnings issued to the complainant in October 2017 and in December 2017, against which he did not submit appeals. The complainant replied, “I couldn’t appeal.” Mr Jolley said that that is not accurate.

Mr Jolley said that, while the complainant appealed against his dismissal in May 2018, none of the grounds of his appeal were upheld. However, the operations director who heard his appeal decided to reduce the sanction to a final written warning. Mr Jolley said that the complainant agreed to move to a different office, but in response, he said that he had no choice. He said that he would have preferred to go to a different office, but there was no opportunity for him to do so.

Mr Jolley referred to the letter issued by the operations director in June 2018 to confirm that his dismissal was reduced to a final written warning. In the letter, the operations director stated:

“It is important that you are clear that any further breaches of the absence policy, either with regards to notification or certification, may result in further disciplinary action and potential dismissal.”

The complainant said that he was told that if he was absent again he would be fired.

The complainant disagreed that the notes of all the meetings he had with management were accurate. He referred to one statement at a meeting in September 2018 where he is reputed to have said that his absence was because of “a range of issues.”

Mr Jolley referred to a statement in the minutes where LM said that the complainant’s “integration into the team and your level of work has been very good, my only concern is your level of absenteeism.” The complainant agreed that “she may have said that.”

Referring to the final written warning that he received in February 2019, the complainant said, “this could mean anything” and that the respondent failed to follow procedures.   He said, “I was numb to this stuff.”   From about seven months after he joined the company, he said that he knew they were going to dismiss him. What about overturning dismissal? He disagreed that he was given every opportunity to improve. Concluding his evidence, the complainant said that if the respondent had followed their own procedures, he should have been given a written warning and not a final written warning in February 2019.  

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides 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 all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. In the case of this complainant, the conduct which resulted in his dismissal is the respondent’s belief that, having been warned on a number of occasions, he could not be relied upon to attend work on a regular basis.

Section 6(4)(a) of the Act provides that;

“…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

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

In the case under consideration here, the issue is the complainant’s capability – is he capable of regular attendance? The essence of the contract between an employer and an employee is that an employee will come to work regularly on the days they are contracted to do so.   It is accepted that when an employee is ill, they should not attend for work; however, where an illness interferes with an employee’s ability to attend work regularly, a dismissal for reasons of incapacity may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

In my consideration of this complaint, it is my view that it would be unfair to the complainant to consider his historical attendance record and I have decided to take account only of the final 12 months of his service until he was dismissed on June 17th 2019. The complainant’s absence record that was submitted in a document at the hearing and about which there was no dispute, shows that between July 9th 2018 and May 22nd 2019, the complainant was absent on 11 occasions for a total of 24 days. He also took compassionate leave and he was absent for more than six days on which he failed to contact his manager and he did not provide a medical certificate.

The issue of the reasonableness of the respondent’s actions is well set out in a case at the industrial tribunal in the United Kingdom of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Judge Browne-Wilkinson refers to the function of the tribunal, and now my function as the adjudicator,

“to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

The circumstances of this particular case are that in June 2018, the complainant moved to a different office in an effort to have a fresh start with a new manager and to address his chronic absence record. His new manager appointed a mentor to support him and it seemed that he was capable of doing his job, he got on well with his colleagues and he integrated well into his new team. Three months later however, he had been absent for 15 days, six of which were unauthorised. He contacted the company’s employee assistance service and he received eight sessions of counselling. In February 2019, the company’s OHC reported that the complainant had physical symptoms relating to perceived workplace stressors but that the issue was resolved and he was fit for work. The OHC said that his condition should not affect his future performance or his attendance at work. He said that no adjustment was required to work task or work environment and that there was no need for further medical intervention. Finally, the OHC said that the complainant’s “health problems have resolved and is not likely to affect his future attendance.”

The complainant was out sick again in February 2019 and, following a disciplinary hearing, he was issued with a final written warning, the fourth occasion on which he received such a warning. The warning was to remain on the complainant’s file for 12 months. The letter of February 28th 2019 confirming the warning concludes:

“Any further absence during this period is likely to result in further disciplinary action up to and including dismissal.”

It appears that the complainant attended work every day in March and April, but in May, he was absent again for two and a half days, and he took two days of compassionate leave.   He attended an absence review meeting on June 5th, at which he provided no reasonable explanation for his failure to attend work regularly. Following a disciplinary hearing on June 14th, he was dismissed.

The Complainant’s Case that his Dismissal was Unfair

In April 2018, the complainant telephoned a HR manager and made a complaint about what he referred to as an “unofficial grievance” concerning how he was treated by a manager in the first location that he worked at. The HR manager said that someone would contact him to discuss his grievance, but this didn’t happen. He said that he was bullied again by his new line manager but he didn’t report this to HR because his previous complaint was ignored.

At the hearing of this complaint, we learned that the person who was assigned to respond to the complainant in April 2018 went on maternity leave earlier than planned and some of her work was not handed over to her replacement. For this reason, no one contacted the complainant about his grievance.

It is my view that if the complainant was serious about his desire to have his grievance investigated, he would have contacted the HR manager that he spoke to on April 25th to alert him to the fact that no one had got in touch with him.   The fact that he did not do so leads me to conclude that the issue was not so significant that it warranted an investigation. Regarding the complainant’s allegation that he was bullied by his second line manager, I find this allegation to be disingenuous and untrue. I have reached this conclusion because the complainant raised this matter for the first time at his disciplinary hearing on June 14th, referring to an incident where he was admonished for failing to carry out a task in accordance with the respondent’s procedures.   This is not an example of bullying.   Also, the notes of an absence review meeting of September 28th 2018 record that the complainant stated:

“I thought I started here with a clean slate. It’s stressful having this hanging over me (the final written warning from June 2018) knowing that if I am sick there may be more meetings like this, which only adds to it. Since all the issues…I feel like someone in head office has it in for me, like the ‘sword of Damocles’ hanging over me. This all adds to the stress. You both have been amazing so far with me though.”

It is clear from this statement that, even in the middle of a meeting to review his poor attendance, the complainant was complimentary of how he was treated by his manager and her deputy manager.

The second issue raised by the complainant which he thinks makes his dismissal unfair, is the fact that he was never issued with a warning other than a final written warning.   He also appears to believe that his dismissal in June 2018 was reversed and that no sanction resulted, when in fact, it was reduced to a final written warning. As I have mentioned, I do not wish to examine the absences prior to June 2018 when the respondent rescinded its decision to dismiss the complainant, but it is clear that, while he moved to the new location as a fresh start, it was not with “a clean slate” as he had hoped.

Despite the existence of the live written warning, the “sword of Damocles” as he described it, the complainant was absent again for a number of days every month from July to November 2018. The respondent would have been following their own procedure correctly if he had been dismissed, but instead, in November 2018, he was invited to attend an absence review meeting. This concluded with a letter to the complainant confirming that if there was no improvement in his attendance, he would be subject to formal disciplinary action.

It is apparent that the respondent had some sympathy for the complainant, because he was issued with a fourth final written warning in February 2019, having been out sick during December 2018 and in February itself. In some respects, it is not difficult to appreciate that the complainant was, as he said, “numb to this stuff” but a final written warning is not something to become numb about, and, if he was serious about staying in his job, he should have come to work every day.

It is my view that the issuing of a final written warning in June 2018 and another such warning in February 2019 was done with the objective of getting the complainant to see sense and to make an effort to save his job. It’s also of significance that the respondent company is involved in helping people to get employment, and my sense is that they contemplated a dismissal only very reluctantly. It was evident that the complainant was capable of coming to work regularly, as he had done so for the first eight months of his employment, during which he had no absences. He also had perfect attendance for three months in November and December 2017 and January 2018. There were no underlying health conditions preventing him from coming to work and his absences were for a variety of ailments like stomach pain, anxiety, chest infections, the vomiting bug and family-related matters.

The third issue raised by the complainant was the fact that, at the meeting to review his absence on June 5th 2019, he was given a letter inviting him to a disciplinary hearing on June 14th. I find that nothing arises from the preparation of this letter in advance of the meeting. It is apparent that the respondent was not in any way expeditious in their handling of the complainant’s absence problem. The prepared letter would not have been issued if the complainant had given a reasonable explanation for his absence in May, and an undertaking that he would address the problem.

Was the Process Fair?

The Bolger case at the high court which was cited by Mr Jolley provides a useful synopsis of the requirement for a fair process following a decision by an employer to dismiss for ill health.   Mr Bolger’s claim of unfair dismissal was not upheld by the Employment Appeals Tribunal, but this decision was overturned by the Circuit Court. In the case under consideration here, the complainant was dismissed because he was absent too often for a variety of health-related reasons. He also didn’t come to work on a number of occasions without contacting his manager.

Consistent with the principles set out in the Bolger case, the complainant was informed at meetings and in writing (as recently as February 2019) that he would be dismissed if his attendance did not improve. He was advised to be accompanied at meetings and he appealed against the decision to dismiss him. A slight weakness in the process results from the fact that he was issued with a final written warning in February 2019, when, from a more correct procedural perspective, he could have been dismissed. The forbearance shown here could have led to an impression that he might never be dismissed. It is my view that the complainant could have adopted a more reasonable approach and accepted the tolerance offered and made an effort to improve. Having examined all the circumstances, I find that the process followed by the respondent was a fair process.

Conclusion

Having considered all the facts, it is my view that the complainant’s failure to attend work regularly placed an unacceptable burden of monitoring and administration on the respondent. His poor attendance was a negative example to other employees and caused inconvenience for his manager, his colleagues and for clients. I note that the complainant submitted medical certificates explaining the reasons for his absences, and on no occasion, did the managers suggest that he was not sick. In the case of an employee who has a pattern of numerous absences for a variety of illnesses, the reason for the absence becomes irrelevant. The problem is the intermittent nature of the absence and not the cause.

I find that the respondent’s decision to dismiss the complainant fell within the band of reasonable responses expected of a reasonable employer in the circumstances which have been outlined.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well-founded and does not succeed.

Dismissal, absenteeism