Complainant

Respondent

Parties

Roisin  Breslin

Marks And Spencer Limited

Representatives

John Callan                                                Mandate Trade Union

Judy McNamara                                                             IBEC

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-00042922-001

08/03/2021

This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 8th of March 2021 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment by reason of absenteeism. The employment was terminated by letter dated the 23rd of September 2020 and the decision was reached after an investigative and disciplinary process had been completed. The claim is brought within the time limits allowed.

The fact of dismissal is not in dispute, and the Respondent accepts that the burden of proof rests with it to demonstrate that it has acted fairly and reasonably in all the circumstances.

Both parties opened up this case by way of written and oral submissions. These have been comprehensively considered by me as has the significant amount of oral evidence I have heard which was tested through cross-examination.

The Complainant was represented by her Union Representative. Two separate written submissions were received by in the course of two days of hearing. The Complainant herself gave evidence and this was tested by the Respondent representative. I additionally made pertinent further inquiries. The Complainant believes her dismissal and unfair and in particular that it was unfair for the Respondent to calculate days that she was sent home with a possible Covid issue.

The Respondent was represented by IBEC and I was provided with three separate written submissions by the Respondent Representative. I additionally heard oral evidence from a number of the Respondent staff. The evidence was scrutinised by the Complainant’s representation. The Respondent is clear that its final dismissal was justified and that it was a decision made after years of standing by and otherwise accommodating the Complainant despite a pattern of chronic absenteeism.

have carefully considered the evidence adduced in the course of this hearing. The complainant herein has worked with the respondent retail company since 2005. The Complainant has indicated that she has never worked anywhere else and is very attached to this workplace. There can be no doubt that there was no problem with the Complainant in the workplace and she was a good employee. In fact, I might go so far as to say that the Respondent’s forbearance over the course of this employment might be seen as evidence of it’s high regard for the Complainant as an employee.

However, there can be no denying that the complainant history of absenteeism and/or late arrivals has been considerable. I have had the history of the absentees and the late arrivals opened to me at length. Over the years the complainant has been in receipt of an unusually high number of disciplinary sanctions relating to this aspect of her performance. The workplace herein allows for four separate sanctions to be applied under its disciplinary policy. These range from verbal warning, formal warning, written morning, and final written warning. Over the years the complainant has received up to 25 different sanctions, all relating to absenteeism and or being late.

I note that over the years, the complainant had some success in appealing and or reducing the sanctions and that the respondent itself demonstrated leniency in stepping back from making a final decision to dismiss this employee. On at least one occasion, back in 2016, the complainant was suspended without pay for a two week period.

I further note that the complainant was completely honest with her employer and that it was understood that she had issues around her anxiety and general mental health. I understand the complainant did visit the company doctor on at least one occasion but says she preferred to attend with her own physician. The complainant had also attended with an occupational therapist in 2016 who indicated that he anticipated that the complainants attendance would improve and that actually when she is at work she functions well.

In response to the ongoing difficulties being experienced by the complainant the employer would from time to time adjust the working schedule to facilitate the complainant. For example, the complainant was allowed to start late on a Monday, the complainant shifts rostered around a request to attend yoga and/or mediation classes. Despite this, on the 26th of July 2019 the complaint was issued with a final written warning which would remain active on her file for a period of 12 months. In yet another attempt to help the complainant, the respondent agreed to reduce the complainant’s working week from a five-day week to a four day week from August of 2019.

The complainant's line manager TK requested that the complainant attend once again for occupational health assessment as she was accruing more instances of absenteeism (despite now working fewer days each week). In January 2020 the complainant provided a letter from her GP stating that an investigative test carried out on her had identified vitamin D deficiency and it was hoped that new medication would assist and improve our health. However, things did not improve and by the middle of June 2020 the complainant had accrued a further 14 absentees dating back to the issuing of the last final written morning on the 26th of July 2019. In consequence of these high numbers a disciplinary process was initiated by the Respondent. The complainant was accompanied by her trade union representative and I accept that in the that in the course of this process a number of issues were discussed in addition to the lamentable absence record. Th issues which cam up for discussion included the perceived refusal by the Complainant to attend the company’s own doctors and the company’s nominated occupational therapist. It is noted that Mr TD the commercial manager resisted taking the final step of dismissing the complainant at this time and instead issued a further stage four final written warning which issued on the 6th of July 2020 overlapping as it happens the 26th of July 2019 final written warning already on the complainants personnel file. In the aftermath of this disciplinary process the complainant requested a four week unpaid break from work to allow her an opportunity to reflect and regather and this suggestion was agreed to by the respondent. The complainant was due to return on or about the towards the end of August 2020. In the meantime, it is noted that the complainant had opted to appeal the final written warning of the  6th of July 2020.

The complainant returned to the workplace on or about the 24th of August 2020 this was after the four-week period of leave that she had agreed with the respondent. Two days later the complainant was absent from the workplace again. The complainant was next scheduled to work on the 31st of August 2020 a Monday. The complainant recalls feeling quite dizzy that day and being discovered by a colleague when she was sitting in the staff locker room and being told by their colleagues that she looked awful and that colleague was going to get a line manager to have a look at her. There is some disagreement between the parties on exactly what passed between the complainant and the manager MD who assessed the situation.

There does not seem to be any doubt that the complainant’s absence from the workplace between the dates 26th to the 29th of August 2020 was by reason of a diagnosed bacterial infection giving rise to tonsillitis. The complainant had had this diagnosed over the phone by her GP (this was at a time when the country was going through the covid pandemic). The Complainant was on a course of antibiotics which she was to take these for 10 days. So, it was that on her return to work on the 31st of August 2020 the complainant was on a course of antibiotics which had possibly not yet had any effect on the diagnosed tonsillitis and she was feeling most unwell. It cannot be forgotten that the country was in the grips of an ongoing and rolling pandemic in August of 2020 and  there is certainly conflict over whether or not a conversation took place concerning what symptoms the complainant had or did not have, and whether the complainant had or had not contracted Covid. It seems to me, given the prevailing situation in the country, that there must have been a very real fear at the time that the Complainant might be in the workplace with covid-type symptoms. This must have been playing both on the mind of the complainant and the minds of  those colleagues gathered around her.  The complainant says she was asked by MD have you had a covid test? MD says she never asked that question and fully accepted the complainant’s statement when she said she was on a course of antibiotics for tonsillitis. One way or another it seems clear the complainant was too ill to continue in the workplace and was sent home. It is understood that the complainant was going to contact her doctor on getting home. The complainant did not return to the workplace until the 6th of September 2020 and thus had been absent again for another six or seven days. There was never any diagnosis of Covid and no reason to stay out in accordance with Government guidelines as suggested by the Complainant.

Even though the absences described here are clearly related to absences by reason of illness (capable of being certified) the complainant was nonetheless disciplined for what was perceived to be yet another pattern of absenteeism. By now, the complainant had been absent from work for 70 days since October 2018. October 2018 was the timeframe for the start of te disciplinary process which brought about the first final written warning in July of 2019. Which was, as already discussed above, topped up with a second final warning issued in July 2020.

I am satisfied that the complainant must have been aware that she could not expect indefinite leniency on the part of her employer. In a busy employment environment such as the one run by the respondent I would have to accept that habitual absenteeism makes it difficult for management and colleagues alike. I appreciate that there was a pattern of informing the Employer of absenteeism as they arose - by both phone and text message. However, doing the right thing by informing the employer that you wont’ be coming in does not negate the difficulty it creates in the workplace where others have to shoulder the workload.

 In fact, I would have to say that the employer herein demonstrated remarkable patience and forbearance when it came to this particular complainant and I acknowledge that this is probably because when she was actually on the floor she was a good employee. However, the terms of the disciplinary process are crystal clear and at a certain point the final decision has to be made. The complainant had had the benefit of a number of steps not being proceeded with. I note that the  complainant had previously had a sanction of a two week suspension imposed on her. This sanction saw no overall improvement. So it was, that there was really was only one option left to the respondent at this time. I am satisfied that the complainant was not unfairly dismissed but was dismissed in accordance with the disciplining process. In this regard I am accepting that the rates of absenteeism were inordinate and unacceptable. It is also noted that the company policy clearly provides that even certified absences do not exempt an individual from being put on disciplinary notice.

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

CA-00042922-001 The Complaint herein fails. The Complainant was not Unfairly dismissed