ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005550
Parties:
| Complainant | Respondent |
Parties | Maintenance Technician | Road Maintenance Company |
Complaint(s):
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-00007734-001 | 18/10/2016 |
Date of Adjudication Hearing: 02/08/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Company as a Maintenance Technician on 11 December 2007. The Complainant was dismissed effective 7 July 2016 and was paid 3 months' notice in lieu. His gross monthly pay was €4,754.54. The Respondent Company operates and manages road infrastructure, it employs 105 people. The chosen redress of the Complainant was compensation as it was for the Respondent. The Complainant was unemployed from the date of his dismissal until he found a new job in June 2017.
Summary of Complainant’s Case:
The Respondent Company disputes the claim of Unfair Dismissal. It is the Respondent's case that the Complainant was dismissed following a protracted, progressive disciplinary process following excessive frequent absenteeism and lateness.
The Complainant was required to work from 7:30am until 4pm (Mon-Fri, 37.5 hours). In addition, the maintenance team is required to work 3 nights per month (8pm – 6am) and their normal daily working hours are adjusted accordingly. The Complainant's salary also included a premium for working at night time when required. Additional to his basic salary he was paid for attending on-calls, which is a minimum of 4 hours at 1.5 hourly rate per on-call. Maintenance Technicians have to be on-call for one week every four weeks.
The maintenance team all start work at the Company HQ and from there are given their work plan for the day, are assigned into work groups and use the Company’s vehicle to attend their work activity location). At the conclusion of the working day, staff return to HQ, debrief and clock out.
The Respondent submits that issues pertaining to the Complainant's poor timekeeping and high levels of absenteeism were becoming serious for a long time before his dismissal. The Company were aware that the Complainant had experienced the death of a close friend around 2013/2014 and so the Company extended support by way of offering access to counselling in addition to allowing the Complainant some scope with regards to his attendance issues.
However, the Complaint’s poor attendance continued into 2015 and 2016. The Respondent gave evidence to the number of meetings, formal discussions and warnings given to the Complainant because of his attendance and time-keeping offences. The Complainant was warned many times about the consequences of not addressing his attendance and time-keeping record. The Respondent submits that it adhered to its Disciplinary Procedures at all times and afforded the Complainant all his rights throughout the process. The Respondent went through each stage of the disciplinary process with the Complainant. A Final Written Warning was issued on 3rd February 2016. The Respondent submits that the required improvements were not forthcoming and it was left with no option other than to dismiss the Complainant, which it did on 7th July 2016.
The Complainant appealed the decision to dismiss and an appeal hearing took place in August 2016. The appeal was not successful and the decision to dismiss was upheld.
The Respondent submits that the Complainant was not dismissed unfairly but rather was dismissed on the grounds of incapability in accordance with Section 6(4) of the Unfair Dismissals Act 1977 to 2007.
The Respondent put forward that it had in place a clear procedure for managing absence, with stated incremental steps for disciplinary action should absence levels exceed acceptable thresholds. The system in place in the organisation demonstrated an incremental and consistent approach to absence levels. This procedure includes regular monitoring and reviews in order to provide assistance and clarity to the employee. The ultimate sanction at the end of the procedure, should no improvement occur, is dismissal. The Respondent believes it is reasonable to state that the Complainant was aware of the implication and consequences of continued poor attendance/absence levels.
The Maintenance Manager for the Respondent Company gave oral evidence in which he explained the absence and lates records for the Complainant provided at the hearing. He also gave details of the number and purpose of meetings that took place with the Complainant and management during the period in question. In response to a question as to why suspension had not been invoked before dismissal the Maintenance Manager stated that the Complainant was well aware of the seriousness of the situation but did not alter his pattern of behaviour; suspending him would not, in his view, have achieved anything.
In response to questions from the Complainant the maintenance manager agreed that the Complainant was a great worker when things were going well.
Two other witnesses for the Respondent gave evidence supporting the view that the Respondent had done all that could be expected of an employer and had followed procedures to the letter.
The Respondent's representative stated that the Complainant's repeated short-term absences, unauthorised absences and lateness to work rendered him incapable of conducting the work for which he was employed. Continuation of the Complaint’s level of absence would have been unacceptable and intolerable for the Respondent in light of its obligations to its other employees, it obligations to its clients and its necessity to conduct business. As such his dismissal was not unfair.
The Respondent cited the cases of Reardon v St Vincent’s Hospital, UD74/79 and Behan v An Post, UD 320/2006 in support of its argument.
In closing the Respondent put forward that the decision to dismiss the Complainant had been a difficult one and had only taken when all efforts to resolve the difficulties had continuously failed. The Complainant's failure to co-operate by even ringing in added to the difficulties experienced by the Respondent. The Respondent held a genuine belief that things were not going to improve.
Summary of Respondent’s Case:
The Complainant gave oral evidence at the hearing. The Complainant drew attention to his letter of appeal in which he outlined the circumstances that had led to his poor attendance and time-keeping record. The difficulties had started when his partner had become ill and subsequently passed away. The Complainant stated that his mind was clouded by grief. He stated that other employees in similar circumstances had been granted long-term leave but he was not supported by the Respondent in the way he should have been. Although he utilised the Employee Assistance Programme this only allowed for a small number of counselling sessions.
In closing the Complainant stated that it was his belief that the punishment did not fit the crime. He stated that he had given great service to the Company which up to the start of the problems had been exemplary. In the end he felt he was "fast-tracked" out the door.
Findings and Conclusions:
It is a long established that persistent absence from work, whether certified or not, may render an employee incapable of doing his/her job and as such may justify dismissal. The case of Reardon v St Vincent’s Hospital, UD74/79, was one of the earliest cases to address this, and the principle has stood since. In that case, the Claimant, Mr Reardon, had a pattern of absence over a period of time, all of which were medically certified, and the Tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6(4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed.
In addition to the above stated case the EAT also reaffirmed its position pertaining to employees with an unacceptable absence record - reference the case of Behan v An Post, UD 320/2006 whereby the Tribunal determined:
“[T]he Claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the Claimant's incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances”
It is the position of the Respondent that the same principles apply in this case. That the Complainant's pattern of poor attendance was neither acceptable nor tolerable and rendered him incapable of conducting the job for which he was employed to do.
Section 6(4) of the Unfair Dismissals Act 1977 to 2007 states:
“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 one or more of the following:
( a ) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do […]”
The facts in this case are not in dispute. The Complainant had a very substantial pattern of absence and lates.
The Respondent’s case rests on two related arguments. The first is that the Complainant's accumulated leave and lates amounts to justification on grounds of his being incapable of performing the work for which he was employed. It links to that its very substantial efforts to engage with the Complainant through its attendance management programme and the occupational health service. The Complainant argues, and relied exclusively on this argument, that an onus lay on the respondent to ‘look behind’ his non-attendance and lates for the true explanation for his failures.
There are three pillars required to support a defence that a dismissal is fair.
The first is that an employer has some reasonable grounds to trigger a disciplinary process. The second is that the process be fair by the standards well established in Irish employment law, and the final one is that the sanction be appropriate and within the range of reasonable sanctions.
It is clear from the above that the Complainant’s absences and lates that the employer had a sound basis to take action. It is also clear that the Respondent followed its own procedures closely and these procedures were fair. The respondent had no reason to believe that the Complainant’s pattern of absence would improve and was justified in terminating his employment on the grounds of his incapacity as per the test in Bolger v Showerings Ltd [1990] ELR 184.
The employee is not being dismissed, per se because of his poor attendance but rather when that provides an indication of incapacity to perform his or her job. (Reardon v St Vincent’s Hospital UD 74/1979)
I find that the Respondent acted with considerable patience and its procedures were fair, the grounds of the dismissal were the incapacity of the Complainant and that therefore the dismissal was fair.
Decision:
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 section 7 of the 1977 Act.
I find that the dismissal was fair and I do not uphold complaint.
Dated: 7/9/17
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Absence, lates, incapacity |