ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008817
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | An Air Filtration Provider |
Representatives | Pádraig Mullins of Gaffney Halligan & Co. Solicitors and Fiachra Breathnach BL | John Keenan of JRK Business Services |
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-00011589-001 | 26/05/2017 |
Date of Adjudication Hearing: 07/12/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 26th of May 2017) issued within six months of her dismissal, I am satisfied that I have the jurisdiction to hear this matter.
Background:
The Complainant herein has been an employee of the Respondent multinational Company for seventeen years having commenced his employment as a fitter in and around 1992. In March of 2017 the Complainant’s employment was terminated by reason of Gross Misconduct which gave rise to fundamental breach in the trust.
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Summary of Complainant’s Case:
The Complainant made the case that he was Unfairly Dismissed when his employer failed to take into account the mitigating circumstances surrounding his need to take time away from the workplace. |
Summary of Respondent’s Case:
The Respondent makes the case that Complainant’s actions amount to a misrepresentation such that it could no longer reasonably be expected to trust the Complainant. |
Findings and Conclusions:
I have carefully listened to and considered the evidence that was adduced in the course of this hearing. I have read through the comprehensive submissions provided by both sides and have considered the notes I have made as well as the demeanour of the parties in presenting their evidence. The Complainant herein has worked solidly and without interruption with the Respondent company since in and around 1992 at their industrial plant on the outskirts of Dublin. The Complainant contacted his Employer on or about the 19th of January, 2017 saying that he was sick and by the 20th of January he had produced a sick certificate for the week ending the 26th of January. The Complainant submitted a series of sick certificates thereafter. The Complainant returned back to the workplace on or about the 3rd of March 2017. The Complainant had remained out of the workplace for six weeks and had provided his employer with medical certificates which appear to have indicated that the Complainant had to remain out of the workplace as he had a serious chest infection and/or flu symptoms. The Complainant had additionally kept in touch with his Employer on a number of occasions over that six week period (usually be email), giving updates on what his Doctor was saying and regarding proposed Hospital appointments. The workplace operates a sick leave pay policy which is set out at page 28 of the Employee Handbook. The policy allows for eligible employees to take up to 30 day’s sick pay in a given year and provides for the off-set of disability benefit obtained from the Social Welfare Department against any remuneration received. The Complainant was paid over €4,000.00 by the Respondent company to cover the Remunerative losses which arose by reason of his illness. I am not clear on whether a part of this payment was off-set by money obtained through the Social Welfare system. Towards the end of the period of Sick Leave Absence, it came to the attention of the Employer and in particular the Managing Director (AG) that the Complainant had been making himself available to the FAI (Football Association of Ireland) as a linesman/referee for Senior Premier League Matches. The fact that the Complainant was involved with the FAI was well known to the Employer. Nonetheless, AG believed that the Complainant’s ability to assist and referee at robust Senior matches was not consistent with the perception of being chronically ill which the Complainant had maintained and created with his Employer. AG reviewed a number of recent FAI fixtures for the period of the sick leave and was surprised to note that the Complainant had made himself available for at least three matches during his Sick Leave – one which involved him travelling to the North. On his return to the workplace the Complainant was invited by AG to attend a Disciplinary meeting by letter dated the 8th of March 2017 which stated: “That on at least three occasions during your reported absence on sick leave you publicly demonstrated a level of physical fitness which directly conflicts with the basis on which you reported yourself unfit to attend work, and accordingly absented yourself from work, and claimed related payment under the Company’s sick pay scheme” The Complainant was called to a Disciplinary meeting conducted by AG and on the 15th of March, the Complainant was notified that his Employment was being terminated. It is noted that the Complainant in the course of the Disciplinary meeting told his Employer that he had not been out sick with a flu or a chest infection and had in fact needed to take the time off to be with his wife and daughter who were both dealing with severe depression. The Complainant had himself decided not to reveal these intimate domestic details which were the true motivation behind his wanting to take time out of the workplace. The Complainant cited a mistrust of the Employer or at least the Employment environment not to keep such details confidential, as being the reason that he had not told them about his Wife and Daughter. In the course of the hearing before me, the Complainant asked that I find that the Respondent Company had been Unfair not to take into consideration the mitigating circumstances he had disclosed at the meeting In considering this application, I have read through the Company handbook and I note that there is provision for Compassionate leave where exceptional circumstances provide for same. This leave is unpaid. The Complainant has suggested that the reason that he had not disclosed his family circumstances was because he did not trust that the details would not be revealed by inadvertence or otherwise. I understand the Complainant seeks to protect his family and yet it seems to me that generally Compassionate Leave is provided to assist Employees in exactly these types of situation. The Complainant provided no substantial reason for this fear that he could not trust his Employer to treat his private life with a sacred confidentiality. I do believe that the Complainant’s family circumstances were very difficult and that he did the right thing in taking an amount of time out to be with them in their time of need. I do not however accept that it was a good idea to fabricate a reason to be away from the workplace (and I note that the Complainant implicated a medical practise in his plan), this was certainly naïve as the Complainant admitted to having mislead his Employer at the Disciplinary meeting. I categorically cannot accept that there is any justification for extracting remuneration from an Employer in the manner that has been done. Not every workplace provides for a Sick Leave payment scheme and it seems unfair to the Complainant’s colleagues that he has seen fit to abuse the Scheme in the manner that he has. Sick Pay is never intended to be provided because of difficult domestic circumstances – it is to provide Employees with comfort during a genuine period of illness. It was wrong of the Complainant to dupe his Employer in the way that he did. The Complainant representative did point out a number of flaws in the procedures adopted. I accept the Complainant may have had difficulty sourcing the Company Handbook, there might have been inadequate notetaking and I accept that AG appears to have handled the investigation, Disciplinary and Decision making processes. However, I cannot find that any one (or any number) of the procedural flaws opened to me was sufficient to render this termination Unfair. I find that the Complainant mislead the Employer and in doing so wrongly extracted six weeks remuneration when he was not entitled to same and where other honest avenues were open to him. The Respondent has indicated a fundamental breach of Trust has occurred and I accept that finding.
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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 Complainant was not Unfairly dismissed in all the circumstances. |
Dated: 4th April 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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