Complainant

Respondent

Parties

Ann Marie Flanagan

Musgrave Operating Partners Ireland

Representatives

  Michael Ryan B.L. instructed by Tunney & Co. Solicitors

Ibec

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-00046194-001

10/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00046194-002

10/09/2021

The complainant referred the within complaints to the Workplace Relations Commission (the “WRC”) pursuant to the Unfair Dismissals Act 1977 and the Employment Equality Act 1998 (the “1998 Act”).

Further to communications from the WRC to the complainant regarding the parallel complaints, the WRC notified both the complainant and respondent by correspondence dated 2 November 2021 that the discriminatory dismissal complaint pursuant to the 1998 Act was deemed withdrawn. 

At the outset of the hearing, I confirmed with the complainant’s representative that in addition to the unfair dismissal complaint, there was a complaint for adjudication under the 1998 Act of failure to provide reasonable accommodation.  The complainant’s representative advised that the complainant wished to proceed with the claim of unfair dismissal.  A short break was facilitated to allow the complainant’s representative consult with the complainant on the matter of the complaints before me for adjudication.  When the hearing resumed, the complainant’s representative advised that it was not pursuing the complaint under the 1998 Act and confirmed that that complaint could be withdrawn.  The complainant’s representative further confirmed that the complainant wished to progress the unfair dismissal complaint against the respondent.  

The hearing proceeded on the foregoing basis with complaint CA-00046194-002 withdrawn by the complainant.

The respondent’s representative submitted that the facts leading up to the complainant’s dismissal from employment were not in dispute and the complainant’s representative accepted that to be the position.

The complainant commenced employment with the respondent in 2006 and had satisfactory service until 2018 when issues of lateness and failing to adhere to the respondent company’s policies arose. The complainant was suffering from stress during this period, some of which was attributable to the respondent.   The stress the complainant was suffering at the material time resulted in conduct that was not in keeping with the complainant’s prior service in employment. Whilst accepting that the last 3 years of the complainant’s service were not entirely satisfactory, the thrust of the complainant’s case was that the sanction of dismissal on 11 March 2021 was disproportionate having regard to the circumstances of the case, including her service in employment and the stress she was under and suffering from, which was in part attributable to her employment.

It was submitted that the dismissal of the complainant was unfair and that regard should be had to s.6(7) of the Unfair Dismissals Act 1977.

The complainant sought reinstatement.

Evidence of the complainant

The complainant commenced employment in 2006 and gave satisfactory service until lateness and absence commenced in 2018.  She had difficulties with her general mental health and stress did not help.  She said that she was feeling very unhappy in her employment from 2018 and was trying to go back to full-time education.  In accounting for her lateness during this period of her employment, the complainant said that she did try to make contact with the respondent if she was late.  She referred to particular incidences of lateness and non-attendance in February 2021; saying that she had called to apologise and that she had been accommodated by her supervisor with working a different shift or different days. She referred to swapping days when rostered and doing extra days to help out.   The complainant outlined the difficulties, staff shortages and stress associated with working as a front-line worker during Covid-19 and the effects of Covid-19 on her mental health.  The complainant said that she found not having variety in her work disheartening and found some of her supervisors not to be accommodating.  The complainant said that she was very shocked when dismissed, had not expected it at all and would like the opportunity to go back to work with the respondent.

In cross-examination, the complainant said that she went to her supervisor with a request to change roles and that she felt more comfortable speaking with colleagues than with HR about workplace issues that caused her stress.  The complainant said that she did not know that that she should have raised grievances, or referred to the issues that caused her stress, in her meetings with HR in connection with her lateness and absences.  The complainant accepted that the final written warning in August 2020 and second final written warning in February 2021 were opportunities given to her to improve her attendance.

The complainant said that it took her a while after March 2021 to start applying for jobs and that she didn’t know how to cope.  She could not recall specific jobs that she had applied for but said that she handed out her CV and applied online.  The complainant said that she hadn’t worked since March 2021.

The respondent acknowledged that the complainant had excellent service until attendance issues arose in 2018.  The respondent offered the complainant supports and initiated its attendance policy with absence awareness meetings with the complainant. The respondent applied fair procedures in dealing with the complainant’s lateness and absences and provided the complainant with details of its Employee Assistance Programme.  The complainant’s attendance did not improve and the respondent applied its disciplinary procedures in a fair and progressive manner which culminated in the termination of the complainant’s employment on 13 March 2021.  The respondent’s decision to dismiss was upheld on appeal. 

The respondent had sought to support the complainant both informally and formally over the 3-year period prior to her dismissal but the complainant had not fully engaged with the supports and the poor attendance pattern persisted. 

The respondent fully disputed the claim of unfair dismissal and redress sought.  It referred to a prolonged disciplinary procedure that included informal counselling and four warnings prior to the complainant’s dismissal.  It further disputed that it was on notice of any stress attributable to the workplace and maintained that at no stage had the Complainant referred to stress from the workplace as the cause of her attendance issues.

In making my decision on this claim for unfair dismissal, I have carefully considered the submissions of the parties and the evidence adduced.

The complainant commenced employment with the respondent in 2006 and worked as a sales assistant in one of its stores. 

The facts leading up to the termination of the complainant’s employment on 11 March 2021 on grounds of capability were not in dispute between the parties. 

The complainant contends that the sanction of dismissal was disproportionate in the circumstances and that a lesser sanction should have been accommodated or negotiated. 

In determining this claim, I must consider whether, having regard to all the circumstances, there were substantial grounds justifying the respondent’s decision to dismiss.  In doing so, I have had regard to the reasonableness or otherwise of the respondent’s conduct in relation to the dismissal.  I have therefore reviewed the factual background to the complainant’s dismissal, the respondent’s rules and procedures on attendance, their application in this case and any mitigating circumstances.   

The Factual Background

The respondent invited the complainant to an absence awareness meeting in January 2018 and provided her with details of its Employee Assistance Programme (“EAP”) and absence guidelines.  The complainant’s timekeeping and attendance did not improve.  A second absence awareness meeting took place in May 2018.

The respondent met with the complainant and her union representative in July 2019 in connection with the complainant’s failure to contact store management to notify absence from work in June 2019.  The respondent explained to the complainant the importance of contact and communication and provided the complainant with the store manager’s personal telephone number, in addition to the general phone number, to use for calling in absence.  The complainant returned to work on a three-day week following a period of absence in June 2019.

Absence and non-adherence to the reporting procedures in August and September 2019 resulted in the respondent initiating its disciplinary policy to address these issues with the complainant and a verbal warning issued to the complainant in October 2019.  There were further instances of no attendance/no contact by the complainant and the respondent applied progressive disciplinary measures in 2019 and 2020 to address same.  The complainant was issued with a final written warning in August 2020.  The complainant did not exercise a right to appeal these disciplinary decisions.

An intervention meeting took place in October 2020 to advise the complainant that her attendance had not improved and that she was still not following attendance guidelines.  The complainant was advised at this meeting that she was at risk of losing her job and told again what she needed to do if she was late for, or unable to attend, work.

The respondent convened an investigation meeting with the complainant in December 2020 concerning the complainant being late for 11 out of 13 shifts she was rostered to work in October and November 2020 and a failure to notify store management in line with the attendance guidelines.  The respondent progressed these issues to a disciplinary meeting.  The complainant failed to attend the disciplinary meeting scheduled for 14 January 2021 and the rescheduled meeting on 21 January 2021.  At this point, the respondent wrote to the complainant referring to the complainant’s unauthorised absence from work since 8 January 2021 and her ongoing failure to engage with the respondent.  It advised the complainant to contact the regional HR manager by 28 January 2021 and that a failure to do so would be treated as the complainant’s resignation from employment.   A disciplinary meeting with the complainant and her union representative ultimately took place on 5 February 2021; the outcome of which was a further final written warning issuing to the complainant on 12 February 2021.  This warning letter also required the complainant to engage in mandatory EAP sessions and put in place a framework for fortnightly meetings between the complainant and her manager for a period to ensure the complainant followed process and to monitor her attendance.  The complainant did not avail of her right to appeal this final written warning.

There were attendance issues on 3 subsequent days in February and, on 19 February 2021, the complainant was suspended from work with full pay pending investigation.  The complainant was accompanied by her trade union representative to an investigation meeting on 25 February 2021 and a disciplinary hearing on 5 March 2021 concerning ongoing absence and absence with no contact in breach of attendance guidelines.  The respondent took the decision to dismiss the complainant based on continuing attendance issues, her non-adherence to the attendance guidelines and her failure to engage with the process and supports.  The complainant was notified of the termination of employment by letter dated 11 March 2021.  The complainant appealed this dismissal decision and was accompanied by her trade union representative at an appeal meeting on 28 April 2021.  The appeal was heard by a regional HR manager who did not consider a lesser sanction to be appropriate and upheld the decision to dismiss. 

Respondent’s rules and procedures relating to attendance

The respondent’s attendance policy applies to persistent intermittent absence and unauthorised absence.  It states that timekeeping and attendance are monitored because these issues disrupt the effectiveness of a team.  It also details absence notification procedures. 

The respondent’s disciplinary procedure details time keeping and attendance as conduct falling within the scope of the disciplinary process and makes provision for progressive timebound sanctions from verbal warning to disciplinary layoff or dismissal.

I note that the respondent applied progressive disciplinary sanctions in dealing with the complainant’s time keeping and attendance from October 2019 onwards.  The complainant was given four warnings in respect of her time keeping and attendance and I am satisfied that the warnings given were consistent generally with the warning stages outlined in the respondent’s disciplinary procedure and were in line with the objectives of the disciplinary process.   I further note that an investigation and disciplinary meeting was convened at each stage of the disciplinary process with a right of representation afforded to the complainant.  She was informed of the subject matter of each meeting, advised of the consequences in the event of further disciplinary issues occurring, the timeframe for the sanction and the right to appeal.  The complainant did not appeal any of the disciplinary sanctions until the sanction of dismissal issued on 11 March 2021. 

The respondent applied its disciplinary process to address issues that had arisen with the complainant’s time keeping and attendance.  The complainant was provided with supports including information on the EAP, an intervention meeting, a framework for engaging with EAP and follow-up meetings with the store manager.  There is also evidence of the respondent displaying leniency towards the complainant by rescheduling meetings that the complainant failed to attend.  The complainant did not challenge the procedure followed by the respondent in the lead-up to dismissal, other than the assertion that a lesser sanction than dismissal would have been more appropriate. 

I find that the procedure followed by the respondent was fair and proper and in line with the Code of Practice on Grievance and Disciplinary Procedures in S.I. 146 of 2000. 

Mitigating circumstances

I note that the complainant disclosed in meetings with the respondent in 2019 that she was on medication and experiencing mental health and personal difficulties. 

The complainant in the disciplinary meeting of 5 February 2021 refers to “a lot going on outside of here” but she does not expand on this, nor does she outline any mitigating circumstances for HR to be aware of or anything affecting the complainant coming to work.

The complainant at an investigation meeting on 25 February 2021 refers to a difficult living situation which had made life very hard for her over the preceding months.  I note also that she advised at the related disciplinary meeting that she had contacted EAP as the respondent had requested in its final written warning of 12 February 2021. 

I have reviewed the notes of the investigation and disciplinary meetings and am satisfied that at no time did the complainant in her meetings attribute stress or medical issues to the respondent or the workplace rather she referred to matters extraneous to the workplace.  The complainant in her evidence accepted this to be the position. I have no doubt that the period from March 2020 in the workplace was a worrying time for the complainant and her family because of Covid-19 however there was no evidence before me that this was the cause of the attendance issues or that the complainant raised this with HR as an issue that was impacting upon her attendance.  In this regard also, I note that the respondent had cause to address the complainant’s attendance before March 2020.   I further note that the respondent considered, in its deliberations on the disciplinary sanction, the points made by the complainant in a disciplinary meeting in February 2021 concerning personal difficulties.

Decision to dismiss

The complainant’s attendance and timekeeping record were not in dispute and there can be no denying that it was not satisfactory. I accept as legitimate the respondent’s emphasis on good timekeeping and regular attendance, not least as being key to the ongoing sustainability of its business but also because of the impact on an employee’s co-workers when an employee does not attend for a rostered shift or is late for work.  This issue is exacerbated when an employee does not contact management to let them know that they are running late or not in a position to attend work; no contact by an employee creates an additional pressure point.  The respondent has sought, through its attendance guidelines, to avoid or minimise the impact of non-attendance and poor timekeeping.  I also acknowledge the respondent’s frustration as, despite repeat instruction, the complainant was not adhering to the absence notification or timekeeping procedures, and it was not seeing improvements in attendance.

I consider other significant features of this case to be that the respondent sought to support the complainant before and during the disciplinary process, it applied progressive disciplinary and interim corrective measures and adhered to fair and proper procedure in addressing disciplinary matters with the complainant. 

I am satisfied that the termination of the complainant’s employment resulted wholly or mainly from persistent attendance issues on the part of the complainant and that the complainant was dismissed in accordance with the respondent’s disciplinary process.  I consider the sanction of dismissal to have been proportionate having regard to the timeline over which these issues occurred, the respondent’s framework for disciplinary action, the respondent’s efforts to assist the complainant with any mitigating circumstances and the persistent nature of the disciplinary issues.  I find that the respondent’s decision to dismiss was reasonable and that it was not a disproportionate response in the circumstances.

For the reasons stated herein, I am satisfied that there were substantial grounds justifying the termination of the complainant’s employment and I find that this was not an unfair dismissal.

CA-00046194-001 Complaint under s.8 of the Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with s. 7 of the 1977 Act.

I find the complainant was not unfairly dismissed.  The complaint of unfair dismissal fails.

CA-00046194-002 Complaint under s.77 of the Employment Equality Act 1998

This complaint was withdrawn by the complainant.

Unfair dismissal – Attendance issues – Disciplinary procedure