Complainant

Respondent

Anonymised Parties

An Accounts Assistant

An organisation providing services to people with autism

Representatives

Self 

Niamh Daly, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00034018-001

27/01/2020

The respondent organisation provides residential, supported living and outreach services for people with autism. They employ around 230 people. From July 2017, the complainant was employed through an agency and assigned to work with the respondent as an accounts assistant. She left in July 2018, but returned in September of that year, when she was offered a permanent contract. The complainant was dismissed on February 21st 2019 due to her failure to attend work regularly. She complains her dismissal was unfair.

Because the complainant worked for the respondent for five months, she has no protection under the Unfair Dismissals Act 1977 and, for this reason, she brings her complaint of unfair dismissal under the Industrial Relations Act 1969.

Background

It is the complainant’s case that she was absent from work in December 2018 and January and February 2019 because of recurring throat and sinus infections. She claims that she became ill because of the requirement to work long hours over weekends and evenings to clear a backlog of work due to under-staffing. The complainant was only absent for four days when she was an agency worker.

Having commenced in September 2018, the complainant had a probation review meeting on November 22nd, and she was considered by the then Director of Finance to be doing a good job. At that point, she had been absent for two days in October. She said that all absences were medically certified and she produced evidence to this effect. She claims that she “had no choice” regarding her absences.

Procedural Failings

In reaching his decision to dismiss her, the complainant claims that fair procedures were not followed by the new Director of Finance and that the organisation breached the provisions of the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000). When she joined the organisation in September 2018, she said that she was not sent for a pre-employment medical and that this might have identified the underlying condition which she has suffered from since childhood. The complainant said that she is waiting to have a tonsillectomy. She also said that she was not given access to the online database of policies and procedures.

Referring to the procedure that ended with her dismissal, the complainant said that she was not informed that her job was at risk due to her absence, she did not receive notice of a disciplinary meeting, nor was she offered the right to be represented.   At the disciplinary meeting which was held on February 21st 2019, the complainant said that she wasn’t given an opportunity to reply to the allegation that her sick leave was excessive; neither was she informed that she could appeal the decision and she did not receive a letter setting out the reason for her dismissal.

Referral to Occupational Health

When she was out sick, on February 15th 2019, the complainant attended for an examination by the respondent’s occupational health consultant (OHC). The OHC concluded that she was fit for work and not expected to be absent any more than an average person in the future.   However, at a meeting on February 19th, the complainant informed her manager and the HR Business Partner that she had a heart murmur and that she was also referred for a tonsillectomy. She did not mention these illnesses to the OHC and she said that she was unaware of them at the time of the consultation on February 15th.

The Complainant’s Relationship with her Manager

At the meeting with her manager at which the decision to dismiss her was confirmed, the complainant said that her manager claimed that he found it difficult to get information from her. As an example, he said that she didn’t inform him about outstanding things to be done for the payroll while she was out sick. The complainant said that she was only at work with her new manager for 11 days and she finds it unbelievable that, based on this short experience, he could reach a conclusion that it would be difficult for them to work together.

Precedents

In support of her case that her dismissal is procedurally unfair, the complainant referred to the following precedents:

LCR-21798:   Beechside Company Limited (trading as the Park Hotel Kenmare) and a Worker

The Labour Court found that the dismissal of the Worker in this case following four months’ employment was procedurally unfair.

ADJ-00002259

The parties are un-named in this case, which centres on the dismissal of an employee following an intermittent pattern of absenteeism due to illness during probation. The adjudicator found that the dismissal of the complainant was procedurally unfair.

Background

The complainant had a probation review on November 22nd 2018, two months after she started her permanent contract and it was noted that she had been absent for two days.   She was absent again for seven days in December, and a total of 25 days between January and February. On February 15th, the OHC for the organisation found that she was fit for work. On February 21st, she was requested to attend a meeting at which she was informed that her employment was being terminated due to her high level of absence. She was paid one month’s pay in lieu of notice.

Reason for the Dismissal of the Complainant

It is the respondent’s case that it has a right to expect employees to attend work for and to carry out their duties to ensure the efficiency of the operation. The complainant’s repeated and intermitted absences, totalling 32 days over three months, was disruptive to the finance department and meant that her colleagues had to do her work.

The respondent submitted that there is a significant body of case law that supports an employer’s decision to dismiss an employee for certified and uncertified absence, with different considerations being applied for intermittent and long term absences.

In conclusion, Ms Daly said that the complainant’s high level of absence during probation was the reason for her dismissal.

Was the Decision to Dismiss the Complainant Reasonable?

For any reasonable employer, it is a matter of serious concern when a probationer employee is absent for 32 days in three months. I find that it was reasonable for the employer to attempt to address this with the complainant, because, as an agency worker between July 2017 and July 2018, she was hardly absent at all. The complainant’s health issues coincided with her permanent contract and the fact that, when she became a direct employee, she also became entitled to be paid when she was out sick. It was worrying also for this employer, to find that the complainant became aware of a serious health condition (a heart murmur and a need for a tonsillectomy) only after her examination by the OHC. No medical evidence was submitted at the hearing regarding these illnesses. Finally, at the meeting on February 19th 2019, the HR Business Partner said that the complainant could not give an undertaking that she would be able to attend work regularly, saying that she “couldn’t guarantee” that she wouldn’t be out sick again.

The purpose of probation is to give an employee an opportunity to learn the rudiments of a new job and for an employer to assess an employee’s suitability, from the perspectives of performance and “fit.” It is apparent from the review of the complainant’s performance in November 2019, that she was suitable for the job, and the fact that she was offered a permanent contract having been an agency worker for over a year is testament to her competence. The problem with persistent absence is that the job doesn’t get done, unless it is picked up by others in the workplace, and this is not feasible on an indefinite basis.

The issue of the reasonableness of an employer’s response to the absence of an employee who is ill is well set out in the case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which Browne-Wilkinson J, refers to the function of the industrial 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.”

While the complainant had only five months of service with the respondent, the best-practice guidance in the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000) provides that all employees are entitled to be treated reasonably in respect of the risk of dismissal and that fair procedures should be followed. Following the authority in the case referred to above, I must consider if the decision to dismiss the complainant followed from a reasonable concern on the part of her employer about sickness absence, and secondly, if her dismissal was in accordance with fair procedures. It is my view 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.

Was the Process Fair?

The High Court case of Bolger V Showerings (Ireland) Ltd [1990] ELR 184, provides a useful synopsis of the requirement for a fair process where the dismissal of an employee due to illness-related absence is contemplated. Mr Bolger’s claim of unfair dismissal was dismissed by the Employment Appeals Tribunal, but this outcome was overturned by the Circuit Court.   In the appeal to the High Court, finding in favour of the appellant (the employer at this stage) Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

“(1)   It was the ill health that was the reason for the dismissal;

“(2)   That this was the substantial reason;

“(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

“(4)   That the employee was afforded an opportunity of being heard.”

I accept that, in general, a complaint being considered under the Industrial Relations Act is a less formal matter than the prosecution of a point of law in a case of Unfair Dismissal in the High Court. That said, the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act, and the Labour Court has consistently determined that employees with short service come within the protection of the Code of Practice on Grievance and Disciplinary Procedures. This is clear from the Beechside Trading case referred to by the complainant.

Considering the four requirements set out in Bolger, it is apparent that the respondent in this case failed in respect of point 3; the requirement to inform the complainant that her dismissal for incapacity was being considered, and point 4; the requirement to give her an opportunity to respond. At the return to work meeting with the Finance Director and the HR Business Partner on February 19th 2019, the complainant said that she couldn’t give a commitment that she could come to work regularly. It is my view that, shortly afterwards, she should have been informed that her dismissal was being contemplated. It would then have been incumbent on her to demonstrate that she could attend work regularly, or, to repeat her assertion that she would continue to be out sick until she had a tonsillectomy. These failings on the part of the respondent have compromised any assertion that fair procedures were followed.

Conclusion

At the hearing, Ms Daly referred to “a significant body of case law” that supports an employer’s entitlement to dismiss an employee for reasons related to absence. I accept that such precedents exist (although none were adduced) and I accept that the dismissal of the complainant due to her failure to attend work regularly was not an unreasonable decision. I am mindful however, that a dismissal procedure is a sequence of actions and not just one act. The objective is to avoid dismissal by providing clear guidance to the employee regarding the issue that places their employment at risk and to give them an opportunity to take action to avoid being dismissed. The respondent in this case failed to act in a procedural manner and, in my view, reached the decision to terminate the complainant’s employment with unnecessary haste. While it was not unreasonable for the respondent to dismiss the complainant, the process followed in reaching the decision to dismiss her was flawed and unfair.  

I have concluded that the dismissal of the complainant was unfair. As she was employed by the respondent for five months and she was paid one month’s pay in lieu of notice, I recommend that the respondent pay the complainant compensation of €3,100, equivalent to one month’s pay.

Dismissal, procedural flaws