Complainant

Respondent

Anonymised Parties

A General Operative

A Local Authority

Complainant

Respondent

Representatives

none

none

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035044-001

04/03/2020

The complainant joined the Environment and Transportation, Waste Management Division of the local authority in June 2004 on a temporary contract. He was made permanent in that division in January 2006 and, at the time of his dismissal, his annual salary was just over €35,000. On February 28th 2020, he was dismissed due to lateness and his poor attendance record. He claims that his dismissal was unfair, partly because it was complicated by a conduct issue and also, because his absences were caused by his very difficult personal circumstances.

Chronology Leading to the Complainant’s Dismissal

On December 19th 2018, following a meeting in accordance with the respondent’s disciplinary policy, the complainant was issued with a written warning because of his failure to adhere to the attendance management policy and because of the number of days he had been absent.

By early March 2019, the complainant had been absent due to illness for a further 11 days on four occasions and he was requested to attend a meeting with a senior staff officer in the HR department. He explained to the staff officer that he was going through a marriage break-up and was attending the respondent’s employee counselling service and he asked the staff officer to enquire about the possibility of additional sessions being arranged. Following the meeting, the staff officer contacted the counselling service and was informed that the complainant had not attended since June 2018 and that he had not turned up for two appointments. On March 8th, he was issued with a final written warning.  

On April 5th 2019, the complainant attended another meeting with a staff officer from the HR department. By this stage, since he had been issued with the final written warning, he had been late for work on 13 occasions, he had one self-certified sick day and one day of unauthorised absence. On April 12th, the staff officer wrote to the complainant informing him that he was suspended without pay for three days. He was informed that his attendance would be closely monitored and that he would be dismissed if he did not address his pattern of lateness and absence.

On January 13th 2020, the complainant attended a meeting to discuss his absence and the unauthorised collection of waste from a house near where his aunt lives.   At the meeting, the administrative officer from the HR department informed the complainant and his union representative that, since he was suspended in April 2019, he had been late 28 times, and absent due to sick leave for 10 days on seven occasions and marked absent without pay on two occasions. He had also been permitted to take two weeks of unpaid leave. The other issue addressed at this meeting was a report by the inspector in the depot where the complainant worked, concerning the unauthorised collection and disposal of two bags of waste. The complainant had left work early to have tea with his aunt and he noticed two bags of rubbish on the street, which he put into the back of the local authority van he was driving. At the meeting on January 13th, the complainant accepted that he had collected the rubbish and he said that he had called in to see his aunt during his break.

On January 16th 2020, the administrative officer wrote to the complainant and informed him that he was dismissed with effect from January 31st 2020.   In the letter, the administrative officer said that the collection of the two bags of rubbish was not included in the reason for the complainant’s dismissal and the reason for terminating his employment was explained as follows:

“I believe that you had sufficient information to know that any further transgressions after the issuing to you of the letter of 8th April 2019 could lead to your dismissal from your employment with (the local authority). The record shows that you still breached, in a very substantial way, both the Attendance Policy and the Disciplinary Policy… As you are on a current Final Written Warning I feel there is no option but to recommend your dismissal … with effect from close of business on 31st January 2020. You will be paid eight weeks’ pay in lieu of notice.”

The complainant appealed against this decision at a meeting on February 4th 2020.   The complainant’s union representative told the respondent’s executive manager in the HR department that there were mitigating reasons for the complainant’s poor attendance which were associated with depression and the break-up of his relationship. He said that he had been suicidal and that he was attending Pieta House for assessment. The executive manager asked the complainant to provide details from Pieta House regarding the programme he was attending and the complainant agreed that he would get these details.

On February 13th, the executive manager wrote to the complainant to inform him that a letter he had sent to him dated February 4th confirming that he was attending Pieta House was not adequate to show that he was engaged in a programme of rehabilitation. The complainant was asked to provide a more appropriate letter setting out the nature of the programme he was on and the issues being addressed.   The complainant did not send any other information from Pieta House and on February 27th, the executive manager confirmed that his dismissal was upheld.

The Respondent’s Case that the Dismissal of the Complainant was not Unfair

In the submission provided in advance of the hearing on December 15th 2020, the respondent said that at each stage of the disciplinary procedure, the complainant was given notice of the disciplinary meetings, the issues to be discussed and details of the possible consequences. He was represented at all the meetings and he was informed of his right to appeal.

After each disciplinary meeting, the complainant was given an opportunity to address his attendance problem and he was warned that failure to improve would lead to further disciplinary action up to and including dismissal. Despite these warnings, the complainant’s attendance continued to deteriorate.

At the appeal meeting on February 4th 2020, the complainant gave a commitment to provide the executive manager with evidence of the exact programme he was attending in Pieta House, but he provided only a letter of attendance. Although he was given a further 10 days to get more information, he failed to provide the manager hearing his appeal with the information that he requested regarding his rehabilitation programme.

It is the respondent’s case that the complainant was given an opportunity to address the issues causing his attendance problems. He was offered staff welfare assistance through the employee counselling service, but he failed to turn up for some of the appointments. The respondent’s position is that an employee has a responsibility to address the problems that cause their poor attendance, but the complainant failed to do so and this, and his underlying health problem led to his dismissal. For these reasons, the respondent’s case is that the dismissal of the complainant was not unfair.

In his evidence at the hearing, the executive manager said that he is aware of the difficulties that the complainant has gone through on the personal front. He said that, through the respondent’s employee assistance services, he was offered help, but that the complainant had a responsibility to provide an acceptable level of service to his employer. The executive manager said that he had no contact with the complainant or his union representative after he wrote to him on February 13th asking for the precise details of the programme he was attending in Pieta House. For this reason, his appeal against his dismissal was not successful.

In his evidence at the hearing on December 15th 2020, the complainant said that, at the meeting on January 16th 2020 that resulted in his dismissal, the respondent included the issue of the collection of unauthorised rubbish with the attendance problem. The complainant’s case is that this was unfair and that it caused confusion. He submitted that this meant that a proper procedure was not followed in the lead up to his dismissal.

Giving evidence on behalf of the complainant, his former colleague from work said that at the disciplinary meeting on January 16th, the complainant’s inspector said that the problem was not the unauthorised collection of waste, but the fact that, on the day in question, the complainant was off his work route visiting his aunt. He said that no one got a chance to put the complainant’s side across at the meeting.

In his own evidence, the complainant accepted that the waste issue was set aside in his letter of dismissal. He said that, at the final disciplinary meeting, he apologised for all the times he was late. With regard to the letter with the details of the rehabilitation programme, the complainant said that he phoned his union representative and he told him that he couldn’t get the details from Pieta House, apart from the letter saying he was attending for an assessment. He said that his union representative said that he would phone the executive manager who heard the appeal to let him know.

The complainant said that he has been through a very difficult time, coming out as a gay man, having been married with three children. He said that he had been suicidal and that he has been suffering from depression. He is attending a long-term counselling programme in Pieta House.   He said that he needs his job and he wants to be reinstated.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”), 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, and having proceeded through the stages of the disciplinary procedure, 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? When an employee is ill, it is accepted that they should not attend work, and an employer is expected to exercise forbearance and to give the employee a chance to get better and return to work.   However, in the unfortunate circumstances where an illness or a variety of illnesses interferes with an employee’s ability to attend work regularly, a dismissal may not be unfair.

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

As was established almost forty years ago in the case at the Employment Appeals Tribunal (EAT) of Bunyan v UDT (Ireland) Limited [1982] IRLM 404, the fairness or otherwise of an employer’s decision to impose the most serious sanction of dismissal must be judged by an objective test:

“…the fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Taking the circumstances confronting this employer and this employee into account, my role, as the adjudicator and the successor to the EAT is to determine if the decision of the local authority to dismiss the complainant was the action of a reasonable employer.

All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage. When an employee fails to attend work, an employer must give some consideration to the cause. The complainant was dismissed because he failed to attend work regularly due to a variety of sicknesses. In his evidence at the hearing, we learned that he has been through very difficult personal circumstances, that he was suffering from depression and that he had felt like committing suicide. We also heard from the respondent that their employee welfare supports were available to the complainant and that, twice, he didn’t turn up for his appointments.   From the evidence of the complainant’s work colleague, it is apparent that he was supported by his co-workers, and I am certain that on occasions, his manager was reasonably tolerant of some of his transgressions.

From the evidence of both sides at the hearing of this complaint, it seems to me that the complainant pushed the limits of the respondent’s patience, at the depot where he worked, and in the HR department. As I have set out above, the contract, or the “deal” in the employment relationship is that an employee turns up for work regularly and provides a fair day’s work in return for an agreed wage. No manager wants to dismiss an employee, particularly someone in personal difficulties. For this employee, one of the most consistent, reliable and organised aspects of his life was his job, providing him with not just wages, but a regular routine and friendship. It is unfortunate that he wasn’t able to keep his part of the deal.

I acknowledge the difficulties the complainant was going through. I have some understanding of the myriad of implications that coming out as a married man has on every aspect of life and relationships. That said, my task here is to consider if the employer acted reasonably and fairly, in accordance with section 6 of the Unfair Dismissals Act, and if there were substantial grounds justifying his dismissal. It is my view that, based on his continued failure to attend work regularly and on time, the respondent’s decision to dismiss the complainant was one that would have been taken by a reasonable employer in similar circumstances. I find therefore, that it was not an unfair decision.

Was the Process Fair?

At the hearing into this matter, there was no argument about the extent of the warnings issued and the adherence of the respondent to their disciplinary procedure. Less than 12 months before he was dismissed, on March 8th 2019, the complainant was issued with a final written warning due to his absence and his failure to adhere his employer’s attendance procedures.   Despite that warning, in the following four weeks, he was absent again twice and late 13 times. Following a disciplinary meeting, rather than being dismissed, he was suspended without pay for three days. On April 12th 2019, confirming his suspension, the administrative officer issued him with a letter in which she stated:

“Despite being issued with a Final Written Warning last month your attendance remains completely unsatisfactory.   It is your responsibility to ensure that you are in a position to provide the regular and efficient service that the Council expects.

“Having examined your record, I would be justified in recommending the termination of your employment at this point. However, I am recommending that you are suspended without pay for 3 days, all days to run concurrently.

“Your record will be closely monitored & if there is any further cause for concerns with any other aspect of your Service with (the local authority), your continued employment will be in jeopardy and your dismissal from its service is likely to follow.”

While there was some dispute about the inclusion at the final disciplinary meeting of the unauthorised disposal of waste, I am satisfied that this was not the cause of the complainant’s dismissal.

In the case under consideration here, the complainant was dismissed because he was absent too often for a variety of health-related reasons. He was informed at numerous meetings and in writing that he would be dismissed if his attendance did not improve. He was advised to be accompanied at meetings and he was offered the opportunity to appeal against each warning that was issued. He appealed against the decision to dismiss him.   The forbearance shown to the complainant could have led to an impression that he might never be dismissed.   Others however, might have appreciated 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.

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.

Dismissal, absenteeism