Complainant

Respondent

Parties

Mihalis Buinenko

Lidl Ireland Gmbh Lidl Head Office

Representatives

David Nohilly Larkin Tynan Nohilly Solicitors

Killian O'Reilly Fieldfisher

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-00044887-001

02/07/2021

The Complainant was employed as a Warehouse Operative by Lidl Ireland GMBH/the Respondent since 1 September 2010 and his employment was terminated on 4 June 2021. The Complainant alleged he was unfairly dismissed for alleged gross misconduct and subjected to an unfair disciplinary process. The Respondent disputes and denies the complaint and submits that its decision to dismiss was fair and reasonable.

The Respondent outlined its background as a leading retailer operating across Ireland. The Respondent stated that it commenced an investigation in May 2021 in relation to the Complainant’s alleged pattern of unreliable attendances over the previous 16 months. The report of the investigation concluded that there was alleged gross misconduct in relation to alleged excessive disruption to the operations of the Respondent – specifically:

-          Alleged failure to attend work on 69 occasions across 2020 to April 2021;

-          Allegedly leaving work early on 10 occasions across 2020 to April 2021;

-          Allegedly taking an extended break without management authorisation or approval on 13 occasions across 2020 to April 2021.

The outcome of the investigation stage resulted in the commencement of the Respondent’s  disciplinary procedure arising from which the Complainant was dismissed on the basis that he had breached company procedures and was unable to provide a valid reason for his repeated failure to attend work and leaving work early on multiple occasions. The Respondent submitted that the Complainant’s actions were excessively disruptive to the Respondent’s operations and that they resulted in a fundamental breakdown of trust in the working relationship.

Evidence of Regional Logistics Manager:

The Respondent's Regional Logistics Manager gave evidence in relation to what occurred at the investigation stage and in relation to his own involvement in the disciplinary process. He stated that the standard level of absences of employees was approximately six days/year but that in the case of the Complainant there had been an approximate 20% level of absenteeism which had significant consequences for the operations of the Respondent in terms of fellow employees being required to work extra hours to make up the shortfall. The Regional Logistics Manager also gave evidence in relation to the return to work meetings conducted with the Complainant which he stated repeatedly addressed the Respondent’s concerns about the Complainant’s attendance pattern. He stated that the Complainant was aware that his absences were disruptive, that there had been “multipleconversations” in relation to the matter but none had affected a change of behaviour on the part of the Complainant.

The Regional Logistics Manager gave evidence in relation to his decision to dismiss the Complainant including his letter of dismissal of 4 June 2021. In that regard he stated that the Complainant’s absences were completely disruptive of the operations of the Respondent and damaged working relationships. He stated that after due consideration, he did not see “any chance” that matters were “going to improve” and that the Respondent “had tried everything we could”.

The Regional Logistics Manager was cross examined on his evidence. Under cross-examination it was put to him that two of the charges in respect of allegedly leaving work on 10 occasions and allegedly taking extended breaks without authorisation or approval on 13 occasions, were not put to the Complainant at the investigation meeting of 7 May 2021. In response the Regional Logistics Manager stated that these issues were covered in the report of the investigation meeting and also identified in his letter of 19 May 2021 which notified the Complainant of the disciplinary hearing. Under cross examination, the Regional Logistics Manager accepted that specific dates were not put to the Complainant in the course of the investigation or disciplinary meeting. In terms of the 69 days of absence, the Regional Logistics Manager accepted under cross examination that these were not unauthorised absences and that the Complainant had complied with the Respondent’s absence policy in relation to sick leave. The Regional Logistics Manager accepted that the Respondent had not referred the Complainant for Occupational Health Assessment and stated that he did not know why, but he insisted these matters were addressed in the return to work meetings with the Complainant. Under cross-examination he stated that he never suggested the Complainant was lying but that he did not acknowledge that his pattern of attendance was disruptive.

It is the position of the Respondent that it has discharged the burden of proving the dismissal was fair, that the process was conducted in accordance with fair procedures and its own disciplinary procedures and policies, that the Complainant was afforded representation throughout and a right of appeal, and that the sanction of dismissal was proportionate and reasonable in all the circumstances.

The Complainant took issue with the lack of specific reasons for his dismissal referring to the findings that he “….had breached company procedures and was unable to provide a valid reason for his repeated failure to attend work or for leaving work on multiple occasions” and that there was a pattern of unreliability on his part. The Complainant also took issue with what he termed an “arbitrary period” of 16 months over which his absences were measured against a purported average of 6 days/employee.

The Complainant stated that he had been certified by a medical practitioner to cover his 69 absences in accordance with the Respondent’s handbook and that his GP certificates referred - inter alia - to him being an inpatient in hospital, to discopathy, back pain and hip pain. The Complainant stated that “….nobody ever said anything to [him] nobody ever said to [him] don’t be sick”, that no one spoke to him regarding the Respondent’s policy and that he wasn’t referred to the company doctor. The Complainant cited the Respondent’s Handbook that a medical certificate must be submitted for absences of more than two consecutive days, that absences not in accordance with this requirement would be treated as unauthorised and that included provision for the Respondent to refer to occupational health.

The Complainant cited the Respondent’s Handbook in relation to the sick pay scheme and in that regard he stated: “It should be noted that there is no sanction for taking an excessive amount of sick days, nor is there any provision for disciplinary actionmerely for taking sick days, there is a requirement simply that the sick days be certified by a medical practitioner and that there be no abuse of the sick pay scheme”. The Complainant stated that having an illness and taking sick leave as a result, was not per se a disciplinary matter under the employee handbook as otherwise it would constitute unlawful discrimination contrary to the Employment Equality Act [1998-2022].

The Complainant took issue with various return to work meetings or that they dealt with his levels of attendance. The Complainant stated that he had sought and obtained the permission of his Line Manager for short absences, for example when there was a death in the family due to Covid-19. The Complainant also raised the interview of an unknown co-worker on 1 June 2021 as part of the disciplinary process on the basis that he was never appraised of the identity of this person nor afforded an opportunity to respond to what was said. The Complainant also took issue with the person who conducted the initial investigation on behalf of the Respondent on the basis that he had instigated a previous grievance against this person.

By way of mitigation of his losses, the Complainant stated that after applying for approximately 26 vacancies, he found new employment on 8 February 2022. He outlined his losses to be in the sum of €22,954.57 and stated that he was seeking compensation and aggravated damages.

The Complainant was cross examined on his evidence. Under cross examination, the Complainant accepted that the Respondent was entitled to review his levels of attendance and he accepted that his level of attendance was a problem for the Respondent. The Complainant also accepted under cross examination that his attendance was the subject of a previous investigation. It was put to him that he attended return to work meetings where his absences were raised which he did not accept and he disputed Former Deputy Logistics Manager’s statement of 17 May 2021. The Complainant accepted under cross examination that the Respondent assisted him in terms of allocation of different duties. In relation to mitigation of losses, the Complainant accepted that he had not looked for alternative work in June or July 2021 which he stated was due to stress, that his first application was on 30 July and that he made no application in November 2021. He also clarified under cross-examination that he was in receipt of jobseekers benefit after his dismissal.

It is the position of the Complainant that characterising his authorised sick leave absences as gross misconduct was perverse, that he never intended his absences to be disruptive and that the matter did not warrant escalation to disciplinary. He stated that he had been an employee for over ten years, that at the time of his dismissal he had an unblemished record and that in all the circumstances, the sanction of dismissal was unreasonable and disproportionate.

CA-00044887-001

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:

6 (4) “Without prejudice to the generality of subsection (1) of this section, 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 work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice, and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are reasonable based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated: 

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ......It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators…….”

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I make the following conclusions:

-          As regards the application of fair procedures, I am satisfied that overall the Respondent conducted the disciplinary process in accordance with its procedures in terms of ensuring that the different stages of the disciplinary process were conducted by different personnel and that the Complainant was afforded a right of appeal and representation. In this regard, I consider that the Complainant has not demonstrated a conflict of interest such that would have excluded the Logistics Manager from conducting the investigation stage. I also accept the position of the Respondent in relation to a previous disciplinary sanction which was expunged from the Complainant’s record as the action taken against the Complainant was summary dismissal.

-          In relation to the charges and findings against the Complainant –  described in general terms as a “pattern of unreliability”, “poor attendance”, “excessive disruption”, breach of “Company procedures and rules”, I consider that as a matter of fair procedures and the provisions of SI 146/2000, the Complainant was entitled to be appraised in specific terms of the reasons for these charges/findings relevant to the specific dates, procedures and rules under consideration. In relation to the absences, the Respondent has accepted that it only provided the totality of numbers such as 69 sick leave days, 10 occasions when the Complainant allegedly left work early and 13 occasions when he allegedly left without management authorisation or approval. This in my view was not sufficient for the purposes of affording the Complainant the opportunity to respond to and/or challenge specific times and dates relevant to the charges.  

-          Whilst I accept that the records show that the Complainant’s absences were the subject of discussion at his return to work meetings, for the reasons already outlined, I am persuaded that any such discussions were not sufficiently particular or detailed for the purpose of grounding charges and findings leading to a dismissal.

-           As a matter of fair procedure and as part of the disciplinary process, ideally the Complainant should have been afforded the opportunity to respond directly to the Deputy Logistics Manager in relation to his statement of 17 May 2021. However I acknowledge this may not have been possible if this person was no longer in the employ of the Respondent.

-          In relation to the findings of poor attendance, disruption and unreliability made against the Complainant, I consider that it was unreasonable of the Respondent to include the Complainant’s sick leave as a basis for reaching those findings. Whilst it is true that the Complainant availed of a significant amount of sick leave/69 days across 2020 to April 2021, the Respondent has accepted this was certified sick leave and that the Complainant complied with the Respondent’s policy in that regard.  Where an employee is ill, it is standard practice that they will consult their GP. In this instance, the Complainant was obliged by virtue of the Respondent’s sick leave policy, to provide a medical certificate for absences in excess of two consecutive days and there is no dispute that he did not do this. In any event, I note the Respondent’s sick leave policy provided that sick pay “will” be forfeited and disciplinary procedures considered where an employee fails to contact their Line Manager or fails to submit a medical certificate at the required time.

-          On balance, I accept the Complainant’s position that medical reasons for his sick leave absences were stated on the certificates. However, at all times, it was open to the Respondent to refer the Complainant for an Occupational Health Assessment as provided in the Respondent’s policy which stated as follows:

“You may be required to attend the Occupational Health Physician (OHP) following any absences amounting to 12 days (consecutive or  non-consecutive) in a 6 month period. The company also reserves the right to require you to attend the OHP where a secondary medical opinion is required in order to ensure or establish fitness to work”.

There is no doubt that absences on the part of any employee including for sick leave can cause disruption in the workplace which is a legitimate concern for any employer. However, the availability of sick leave when required, was part and parcel of the Complainant’s terms and conditions of employment. In all the circumstances I consider that the Respondent should firstly have referred the Complainant for an Occupational Health Assessment and thereafter the Respondent should have engaged with the Complainant and/or his GP in respect of the outcome of any such assessment – prior to any consideration of disciplinary action – let alone dismissal - arising from the taking of sick leave.

In light of the foregoing, I find the Respondent’s rationale in relation to the Complainant’s sick leave as outlined in the letter of dismissal of 4 June 2021 to be wholly unreasonable and for clarity’s sake I set out the particular paragraph as follows:

“You have attempted to excuse away your unreliability by stating your medically certified to be off work. This is not in question. However, it is unreasonable to infer your GP proactively sought you out to certify you as being unfit. That is not how the system works. On each occasion you are certified as being unfit, you requested your GP to provide you with the cert. You have been unable to point to a particular medical illness and have been vague in this regard, a fact that backs up my finding that your actions have been willingly disruptive”.

In the absence of specific information to the contrary, I accept that the Complainant’s evidence that he  also notified his Line Manager when leaving work early or for some specific reason.

In light of the foregoing, I am satisfied the Complainant was unfairly dismissed and that the Respondent has not discharged the burden of proving that the dismissal was fair.

CA-00044887-001

For the reasons outlined this complaint is well founded. I decide that compensation is the appropriate remedy and I note the Complainant selected this remedy in the course of the adjudication hearing.

Section 7 of the Unfair Dismissals Acts [1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances” and it defines financial loss  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. In addition, I am obliged to have regard to the measures adopted by the Complainant to mitigate his losses.

In assessing financial loss, I have taken careful note of all the submissions including the oral submissions and the post hearing submissions.  The Complainant commenced new employment with effect from the 8th February 2022. Whilst the Complainant stated that he applied for multiple positions, he nonetheless accepted that he did not apply for vacancies during June, July or November 2021. The Complainant stated that he participated in relevant training courses during September and December 2021. The Complainant stated that his current gross weekly pay is €640. The Complainant stated on his WRC Complaint form that his gross monthly pay with the Respondent was €2,300, however an amount of €2,482 gross per month was referenced at the adjudication hearing which is less than his new salary. I also note various payslips submitted in respect of the Complainant’s employment with the Respondent, which show the inclusion of additional amounts such as Sunday premium, over time and pension contributions. The Complainant also outlined losses due to now having to incur travel expenses.

In all the circumstances, I hereby award €16,000 to the Complainant to compensate for his loss of earnings arising from the unfair dismissal which I consider just and equitableinall the circumstances. This is subject to such statutory deductions as may apply. In accordance with Section 7 of the Unfair Dismissals Acts [1977 – 2017], this amount does not reflect any losses due to travel expenses.

Unfair Dismissal, Sick Leave, Disciplinary Procedures, Fair Procedures,