Worker

Employer

Anonymised Parties

A Worker

A Toy Shop

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001805

21/09/2023

The complainant was employed by the respondent on a number of fixed term contracts commencing in November 2022. These were renewed in January and July 2023.

Between November and January he accepts that he was absent on sick leave for eight days which he attributes to having to work the night shift.

On May 15th, 2023, he received a positive Covid-19 Antigen test result, which prompted his absence from work. He was invited to attend a meeting despite being positive for Covid and his manager told him she did not care about the fact that it might have implications for him to visit the workplace. There had been no sick leave absences since the late 2022 period and none since January.

In the course of the meeting, he was issued a written warning indicating that any further absences would lead to disciplinary measures. Subsequently, they requested photographic evidence of his positive Covid-19 Antigen test, and he did so via email.

On August 30, 2023, he regrettably contracted the virus once again, and adhered to the Health Service Executive (HSE) guidelines by refraining from entering the workplace. he proactively notified them 2.5 hours prior to his scheduled shift and provided the necessary documentation of the Covid-19 Antigen test.

On  September 18, 2023, following this absence, , he was informed that due to his nonattendance on that particular day, he was being given one-weeks’ notice of the termination of his employment as the warning previously issued in May was activated due to his absence on August 30, 2023.

He  expressed his concern, emphasising his inability to attend work in compliance with HSE guidelines. In response, they said they would consult with HR one final time, but  did not change the decision.

Apart from the warning issued in May he was not given any other warnings as to his performance

He found employment shortly afterwards and was only without work for two months.

The employer did not attend the hearing.

It had objected to a hearing under the Act but did not do so within the period prescribed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The narrative is as set out above and, while the respondent did not attend to present its account of events, the complainant was a credible and honest witness, and I have no reason to doubt the veracity of his account.

At the time of the termination of his employment, he was employed on the third of three, fixed-term contracts.

In the course of the first of these, he accepts that he had a poor sick leave record, missing eight days and he attributed this to difficulties in coping with being on night shift. Despite this his contract was renewed for a further six months and in the period January to May there was no further sick leave, largely, he says, due to the fact that he was working days.

As set out in his submission above he had a brief absence in May due to Covid-19, which resulted in a short absence. He says that he contracted the virus again in August but allowing for annual leave he only missed two days.

At that point and without any hearing, he was summarily dismissed.

On these facts, the termination was harsh, but also and more significantly for the purposes of this referral, both procedurally and substantively unfair.

The respondent failed to make any inquiry into the absences, or hear any argument from the complainant in mitigation, and the complainant’s actual sick leave record (in the calendar year 2023) involved a relatively small degree of absence on two occasions, both attributable to Covid-19.

While I note that he was given a warning in May, that followed a very brief absence attributable to Covid following an otherwise good pattern of attendance that year.

Admittedly there had been a sequence of absences towards the end of the previous year but despite this the respondent subsequently renewed the complainant’s contract, and did so unconditionally, which is some indication of the low level of gravity they attached to it.

It is hardly sufficient grounds on the basis of the few absences in the meantime (and especially having regard to the reason for them) to go straight from the May oral warning to a termination and it was quite unjust to do so.

Fortunately, the complainant succeeded in securing employment within a couple of months, and I factor this into my recommendation.