ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007192
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Local Authority |
Representatives | Niamh Mcmahon McCartan & Burke Solicitors | Aoife Buchanan |
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-00009679-001 | 13/02/2017 |
Date of Adjudication Hearing: 06/11/2017
Workplace Relations Commission Adjudication Officer: Michael Ramsey,BL
Procedure:
In accordancewith 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 seeks adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977. In particular, the Complainant submits he was dismissed for poor attendance but said absences were genuine. The Respondent Company submits that they had no alternative to dismiss the Complainant due to his attendance record and the lack of significant improvement in his performance.
Summary of Complainant’s Case:
The Complainant was employed as a General Operative with the Waste Management Services Division of the Respondent Company from the 1st May 2007 (in accordance with the WRC Complaint form – the Respondent Company submits his employment commenced on the 31st May 2007). In particular, the Complainant’s role involved, inter alia, waste disposal and street cleaning services.
Ultimately, following an unsuccessful appeal against a recommendation for the Complainant’s Dismissal (as per the letter of the 12th October 2016) the Complainant was dismissed as per letter of the 2nd December 2016 and was paid four weeks notice. Consequently, the Complainant indicated in the WRC complaint form that he was effectively dismissed on the 2nd January 2017. Following the Complainant’s dismissal he has been unsuccessful, despite his best efforts, in securing further employment.
On the 20th July, 2008 the Complainant received a formal verbal warning for having taking 7 unauthorised days leave. He attended for an interview with the HR department in relation to his attendances or lack thereof in 2008 but it appears no action was taken.
On the 2nd April the Complainant received a written warning for having accrued 14 days certified sick leave and 1 day of uncertified sick leave. Further, on the 26th May 2009 a decision was taken to remove the Complainant from the Sick Pay Scheme for alleged abuse of said scheme for 24 months and subject to review within 12 months.
On the 23rd July 2010 the Complainant received a final written warning in relation to late arrival for work and intermittent absences.
On the 18th April 2011 following an interview with the HR department, the Complainant received notification that the aforementioned final written warning was still in place. In the course of this interview the Complainant indicated that all of the leave had been certified by his GP and was a result of stress and during this time the Complainants mother was in the terminal phase of her illness.
On the 1st September, 2011 the Complainant was issued a final written warning following a 2 week period of sick leave and on the 23rd April 2012 the Complainant received notification that this final written warning was still in place.
It was submitted that in the period of April 2012 and March 2014 the Complainants attendance improved significantly in that he was absent from work due to illness on 7 days in the first 12 months of this period and for 12 days during the second 12 month period. In particular, the Complainant submits that the Respondent Company’s record of days of sick leave are incorrect.
However, the Complainant received a written warning on the 24th January 2013 in relation to recent absences and in particular the absences on the 25th and 28th December 2012.
The Complainant received a final written warning on the 19th August 2014 following a 2 week period of certified sick leave in May of 2014 and a further week at the end of July 2014. This final written warning was reissued on the 5th March 2015 and the Complainant received notification that final written warning was still in place as of the 26th May 2015.
On the 24th March 2016 a final written warning was issued on the basis that between the 5th March 2015 and the 15th March 2016 he had accrued 12 days of certified sick leave. It was submitted he had 25 days of sick leave at the beginning of 2016 which was disregarded as it arose from an accident at work. It was further submitted that the Respondents tabulation of 49 days on sick leave for the period in 2016 should be discounted by the aforementioned 25 days. Accordingly, on the 24th March 2016 the final written warning was reissued and a further sanction of a 2 day suspension was imposed.
The Complainant appealed this decision and he was informed on the 28th April 2016 that his appeal was unsuccessful and the final written warning and suspension remained in place and it is further submitted that no reasons were provided for this decision.
Following the appeal process, the Complainant had 3 periods of certified sick leave totalling 17 days and post a meeting with the HR department he was placed on a period of paid special leave pending a decision on his future. Ultimately, the Complainant was informed on the 12th October 2016 that his employment would be terminated with effect from the 24th October 2016. The Complainant appealed this decision and was notified on the 29th November 2016 that the recommendation o terminate his employment was upheld.
The Complainant’s legal representative submitted that the Complainants dismissal, in all the circumstances, is unreasonable, disproportionate and procedurally flawed. It was accepted that the Complainant had difficulties with absenteeism in the first number of years, of his employment, but it was urged within the hearing of this matter that not enough regard was had for his personal circumstances to include the death of his mother or to the significant improvement in the period April 2012 to March 2014.
The Complainants legal representative submitted that the decision to impose a final written warning and a two day suspension for 12 days sick leave in a 12 month period is grossly disproportionate and in that context the “Public Service Sick Leave and Trends 2013-2016” documents were relied upon.
The Complainants legal representative submitted that the Respondent Company failed, in the circumstances of this case, to adequately direct the Complainant to its own Staff Support Services with a view to addressing any of the underlying issues which may have caused the Complainants absenteeism.
Further, it was submitted that due to the procedurally unfair, unreasonable and grossly disproportionate actions of the Respondent Company the Complainant has found it difficult to find any other employment since his dismissal and despite a long period of employment with the Respondent Company he received little career development training.
Ultimately, the Complainant is seeking reinstatement in the position which he held before his dismissal or in the alternative re-engagement.
Summary of Respondent’s Case:
In the circumstances of this matter, the Respondent Company position is that it had to have confidence in its employee’s ability to give satisfactory performance on a consistent and constant basis. In that regard, the Respondent Company submitted that the Complainant had a particularly poor attendance record over a number of years, that he was to give an number of warnings under the Company’s disciplinary code, that no medical evidence ever indicated that there was an underlying condition and that finally the Respondent Company reached the point where it could have no confidence in the Complainants ability to provide regular and efficient service into the future.
In respect of the time line in relation to the actions taken in respect of the Complainants attendances and conduct from the 20th July 2008 to the 29th November 2016 are accepted by both parties.
In that regard the Respondent Company submitted that the Complainant had been issued with one verbal warning, three written warnings and two final written warnings. Final written warnings were reissued on 3 separate occasions. Furthermore, the Complainant had it pointed out to him at three other disciplinary interviews that he should note that there was a final written warning currently in place and all these warnings were issued to the Complainant before he was dismissed and this dismissed was confirmed on appeal.
The Respondent Company summarised their position the Complainant had a poor attendance record since his commencement of service with regular intermittent absence on sick leave for a wide variety of ailments. In that respect the various medical reports from Occupational Health Physicians were provided and considered.
The Respondent Company set out in table form the number of days absent on sick leave and the number of absences involved from 2010 to 2016. In the course of the hearing of this matter, the Respondent Company accepted that a number of the tabulations were incorrect but indicated that the Complainants percentage absenteeism was significantly higher than the ordinary absenteeism within the Respondent Company. (The correct number of days of sick leave according to the Respondent Company are 90 days in 2011, 15 days in 2012, 52 in 2014, 18 in 2015 and 27 in 2016)
The Respondent Company submitted that when the Complainants sick leave became a cause for concern he was referred to the Respondent Company’s Occupational health providers for assessment and investigation into whether there was an underlying health problem that might need to be addressed. The Complainant attended with the health providers on five occasions and no underling condition ever presented itself and he was passed fit for work each time and certified as being capable of giving regular and satisfactory service.
It was submitted that the Complainant was referred to the Companies Support Services in relation to the death of his mother and other personal issues. Notice was received from the Support Services confirming that the Complainant attended in each instance and he had informed them that he was acting on their advice in order to deal effectively with the ongoing issues. The Complainant was further offered the option of special leave without pay if he thought that might be beneficial.
Further, the Respondent Company submitted that there were many and numerous courses and career development available to the Complainant but he never availed of same.
Ultimately, the Respondent Company submitted it had no option but to dismiss the Complainant. Further, the Respondent Company were not minded, in the circumstances as outlined above, to either re-instate or re-engage the Complainant.
Findings and Conclusions:
Section 6 of the Unfair Dismissals Act 1977 as amended (‘the Act’) provides inter alia as follows:
‘(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.’
Subsection (4) (c)
“provides that a dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee. In addition, subsection (7) provides that where appropriate, regard may be had to the reasonableness of the conduct of the Respondent with regard to the dismissal.”
In determining this matter, I have noted the case of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”
Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am satisfied that the Respondent Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged. I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.
In order to make a decision in relation to this matter, I have sought to weigh up the detailed submissions and oral evidence of the respective parties along with the statutory requirements and definitions and the relevant case law, discussed above, in order to assess whether the Complainant, in the circumstances of this matter was unfairly dismissed.
I am sympathetic to the Complainants situation and of the difficulties encountered in the course of his employment however, upon the consideration of the above I prefer the evidence of the Respondent Company and accordingly the Complainants case does not succeed and further conclude , having regard to all the circumstances, there were substantial grounds justifying the dismissal and that said dismissal resulted wholly or mainly from inter alia the conduct of the employee.
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.
For the reasons outlined above, I determine that the complaint of unfair dismissal (CA-00009679-001 ) does not succeed
Dated: 12/04/18
Workplace Relations Commission Adjudication Officer: Michael Ramsey, BL
Key Words:
Unfair Dismisal - Fairness of Disciplinary Process - Absenteeism |