ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008095
Parties:
| Complainant | Respondent |
Anonymised Parties | A Call Centre Agent | An Outsourcing Contact Centre |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010751-001 | 10/04/2017 |
Date of Adjudication Hearing: 20/12/2017
Workplace Relations Commission Adjudication Officer: James Kelly
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 claims that she was unfairly dismissed by the respondent for an alleged breach of the respondent’s Absence Management Policy. The respondent submits that there was substantial and excessive absenteeism over a long period of time and its decision to dismiss was justified. |
Summary of Respondent’s Case:
The respondent operates as an outsourcing contact centre to various clients around the world. The respondent said that the complainant was employed as a call centre agent since 18 March 2014. It claims that at that time she also would have signed the company’s code of conduct policy which set out the standards of behaviour expected from employees framed to the mutual interest of the company, its employees, and its customers. All information regarding disciplinary steps and procedures were outlined in the policy. The respondent said that it has a strict absence policy in place to counter possible high levels of absenteeism. The respondent said that it is paid by clients depending on their service levels and thus continual absence from work severely affects the operational needs of the business. It said that the complainant would be made fully aware of the importance of the absence policy. The respondent provided signed reports of return to work discussions on nine different dates between 8 March 2016 and 21 March 2017. The respondent claims that the complainant submitted multiple medical certificates indicating various illnesses as the causes of her absences. It claims that she was dismissed after a 10-month disciplinary process which involved three formal warnings and two informal warnings. It said that whilst the complainant had improved over a short period after her Final Written Warning, there was not a sustained improvement and the facts show that the complainant’s absence record was, overall, still getting progressively worse. The respondent referred to the complainant’s historical absence record, namely, · In 2014, over the 8-month period from her start date in April to December, the claimant had 9.5 days of sickness absence. That is an average of 1.18 sick days per month. · In 2015, the complainant had 27.5 sick days over the full 12 months. That is an average of 2.29 sick days per month. · In 2016, the complainant had 36 sick days over the full 12 months. That is an average of 3 sick days per month. · In 2017, the complainant in the 2.33-month period prior to the disciplinary hearing on 10 March 2017, had 8.5 sick days. That equated to 3.64 days per month on average in 2017. The respondent said that in the 7-month period from 1 March 2016 up to the issuing of the Final Warning on 28 September 2016, the complainant had 29 days of sickness absence. It claims that as of 24 January 2017, the complainant’s absenteeism had fallen within its Absence Management Policy and may have been dismissed at that time but instead it issued her with a second informal warning, which it claims demonstrates that as an employer it was seeking to apply corrective action, and not punitive action, and considering alternatives to dismissal. However, the complainant had a further 5 days’ sickness absence in February and March and in the circumstances, and bearing in mind that the complainant was on a Final Written Warning and had received a subsequent informal warning, it is submitted that it was reasonable for the employer to dismiss due to the lack of a sustained improvement from the complainant and an entirely unacceptable level of absenteeism over a 12-month period and, indeed, over her entire employment history. On May 2016, the respondent conducted a disciplinary hearing with the complainant in which the complainant’s absence from work was raised. The disciplinary process arose due to the complainant being absent on the following occasions and the reason for the dismissal in brackets: 27th to 29th April 2016 (palpitations); 13th to 22nd April 2016 (viral); 14th to 18th March 2016 (flu); 1st to 2nd March 2016 (migraine); 25th to 29th January 2016 (abdominal pain); 7th to 8th January 2016 (upset stomach); 6th to 10th November 2015 (throat infection). The respondent said that it conducted Return to Work meetings with the complainant for the three most recent absences during which she outlined as the cause of her absence, namely flu, viral, and palpitations. The respondent claims that during the disciplinary hearing itself the claimant generally attributed her excessive absenteeism to a possible underlying heart issue and that her GP was running tests. However, it claims in a disciplinary hearing of the 24 January 2017, when asked about a possible heart condition, the claimant advised “they ran tests but nothing came back.” The respondent claims that the complainant’s team leader informed the complainant of her 7 instances of absence and the impact this was having on the business and other colleagues together with the knock on affect this has regarding service level requirements. On 29 June 2016, the respondent conducted a further disciplinary hearing with the claimant regarding her attendance and specifically for 1 to 3 June 2016 for sinusitis and from 14 to 24 June 2016 for gastroenteritis. The respondent conducted Return to Work meetings with the complainant for absences during which the respondent brought the claimant’s attention to its absence policy. On 5 July 2016, the respondent issued the complainant with a first written warning because of her overall poor attendance record. The absence policy was again brought to the complainant’s attention. On 11 July 2016, the complainant appealed the outcome of the disciplinary hearing. However, after considering all matters the first written warning was upheld and attention was brought yet again to the company absence policy. On 3 August 2016, the complainant was invited to a formal disciplinary hearing regarding another absence for 26th July 2016. The respondent conducted a Return to Work meeting during which she outlined diarrhoea as the cause of her absence. The respondent claims that the complainant had admitted that she was aware of the absence policy and the impact it has on service levels. The complainant further stated that she understood the reason why she was at the meeting. On 4 August 2016, the respondent wrote to the complainant indicating that it decided not to proceed with formal disciplinary action and instead issued her with an informal warning. It was submitted that the respondent demonstrated leniency in this respect as many employers would have simply, moved to the next stage of the formal warning process but the respondent gave the complainant every opportunity to improve. On 26 September 2016, the respondent claims that the complainant requested that she be moved to a four-day week in order to help facilitate an improvement in her attendance. The respondent agreed to this request with the change effective from 24 October 2016. Here it claims is another example of where it sought to introduce measures to help the complainant. On 27 September 2016, the respondent invited the complainant to a disciplinary hearing again regarding absence from 14 to 16 September 2016 for migraines. The respondent conducted Return to Work meetings during the disciplinary hearing, it was put to the complainant that 12 instances in 12 months is a huge amount of absences and in order for any business to operate it needs to be manned. On 28 September 2016, the respondent issued the complainant with a final written warning due to the seriousness of the level of continued absences and lack of sustained improvement. It is noted that the Final Warning clearly specified that it was a “final warning” and that “if there is no improvement further disciplinary action will be taken, up to and including dismissal”. On 24 January 2017, the complainant was invited to a further disciplinary hearing to discuss the 17 to 20 January 2017 absence for migraines, light-headedness and nausea. The respondent conducted a Return to Work meeting with the complainant for these absences. It claims that notwithstanding the fact that the complainant was on a Final Warning and had been notified that dismissal was a possible consequence if there was no improvement, the respondent decided again to act leniently and, on 25 January 2017, issued her with a second informal warning instead of dismissal. On 9 March 2017, the complainant was requested to attend another disciplinary hearing in respect of absences from 27 February 2017 to 7 March 2017 for acute muscular spasm. The respondent conducted a Return to Work meeting with the complainant and said that the respondent had clearly outlined to the complainant the seriousness of her ongoing intermittent and excessive absences. It claims that this had been brought to the complainant’s attention through five disciplinary meetings culminating in three formal warnings and two informal warnings, in addition to numerous Return to Work meetings. The complainant’s absences over the previous 12 months led to the warnings and dismissal. The respondent said that the complainant had outlined multiple causes for her excessive absences therefore, it was evident that there was no underlying cause for all of these illnesses and it had been exceedingly fair and accommodating in its dealings with the her. On 10 March 2017, the respondent said it had no other option but to issue a letter of dismissal with an option of appeal. On 15 March 2017, the complainant wrote to the respondent appealing her dismissal, which was held on 29 March 2017, however the respondent said having considered all material facts and circumstances it wrote to the complainant upholding its decision to dismiss on 3 April 2017. The respondent claims that an employer is permitted to discipline and ultimately dismiss an employee if they have an unacceptable level of absences. It referred to numerous decisions to support its position including Mooney -v- Rowntree Mackintosh (UD 473/1979), and Hynes –v- GEC Distributors (Ireland) Ltd. [1992] E.L.R. 95, Baran -v- Donegal Meat Processors, t/a Foyle Donegal (UD608/2013). Jerosenko –v- Mid-West Cleaning (UD276/2014). The respondent said it gave the complainant fair warning to improve her absenteeism to a satisfactory level over a ten-month period involving three formal warnings from May 2016 to March 2017. It claims that formal sanctions short of dismissal were issued to the complainant and two informal warnings were issued during this process, one of which came after the issuing of the Final Written Warning. The respondent said that when the claimant commenced her period of sickness absence on 27 February 2017, which ultimately culminated in her dismissal, that this was the 10th occasion of sickness absence in the previous rolling 12-month period. It claims that this clearly evidences that it was more lenient with the complainant than their policy would normally dictate. The respondent said it conducted Return to Work meetings for every absence in the 12-month period leading up to dismissal and in every such meeting the claimant was asked “are there any adjustments that we could make to support you” and on every occasion the claimant said “no”. Accordingly, the respondent claims that it proactively sought out alternatives and adjustments. The respondent claims that throughout the formal disciplinary process it asked the complainant if there was any support that it could offer her. It said that in the Disciplinary Hearing on 24th January 2017 the respondent asked the claimant “is there anything from a work perspective we can do or has the GP recommended anything?” to which the claimant responded “I know myself what the triggers are. My work space is fine. Stress is a factor but it is stress outside of work. Nothing further needs to be done in the workspace.” Therefore, it claims that 6 weeks prior to her dismissal, the complainant specifically stated that the employer could not do anything further to assist her with her absenteeism. The respondent maintains that throughout the disciplinary processes the complainant outlined her personal circumstances outside of work and the respondent was conscious of that and factored this into its decision-making process. It said that on 3 August 2016 the respondent in a Formal Disciplinary Hearing advised the claimant as follows: “I may have been informed of part of your situation previously, I know we had tried to support and make things as easy as for you as possible. You are a victim of circumstance and in a way, as a business we are too. I empathise with you [name] and the most important thing is that you are getting the support you need”. The respondent also outlined the following additional causes for her excessive absences which pre-dated this warning and dismissal process: laryngitis, flu, and toothaches. The respondent received two medical reports from the complainant’s doctors, dated 3 June 2016 and 16 September 2016, neither of which cite an underlying medical condition and the latter of which simply requests the employer to provide a supportive fitting for the complainant’s work chair. The respondent said that it was reasonable not to send the complainant for a further medical assessment in circumstances where there was no apparent underlying medical issue emanating from her own medical documentation. It said that on 14 July 2016 in a Disciplinary Appeal Meeting, the complainant was asked “were either of these absences part of any ongoing health problems” to which she replied “no they were not”. Furthermore, it was submitted that it was not unreasonable in circumstances where they were receiving advices from the complainant’s own doctors as to how to accommodate her in work. The respondent said that the complainant submitted numerous medical certificates, two medical reports, attended five disciplinary hearings, two further appeal hearings, received three disciplinary warnings, received two informal warnings, had her hours reduced to help improve her absenteeism, and had a supportive device affixed to her chair based on medical advice. |
Summary of Complainant’s Case:
The complainant claims that she commenced employment with the respondent on 18 March 2014 as a Call Centre Agent, she had a weekly wage of €370.50 gross and she worked 39 hours per week. The complainant’s employment was terminated on 10 March 2017. The complainant worked in a call centre dealing mainly with medical administrative type calls. She claims that all her appraisals were positive and all her work was carried out in an exemplary manner. The complainant claims that she attended a disciplinary meeting on 5 May 2016 with two team leaders to discuss her attendance record. All of the absences were certified by her GP and she was taking medication to treat the symptoms of her aliments. The complainant was also at this time going through difficulties in her personal life, which was causing her much stress and the respondent was aware of this factor. The complainant claims that the respondent issued her with a verbal warning for her absence on 6 May 2016 in line with its attendance policy which came into force in July 2015. She did not appeal the warning. The complainant claims that she attended a disciplinary meeting on 29 June 2016, again with two team leaders to discuss her attendance record for an absence in June 2016, where she explained that she had a sinus infection and then contracted the winter vomiting bug. Again, all these absences were certified by her GP. The complainant was issued with a first written warning on 30 June 2016. The complainant appealed the warning and although the appeals officer acknowledged that the absences were certified and genuine, the appeal was unsuccessful. The complainant claims that she attended a disciplinary meeting on 3 August 2016, with a team leader and another executive of the respondent to discuss her attendance record for 2.5 days’ absence in September. The complainant said that she explained that she had been to see her GP and an optician to help with her migraines and she had plans to visit a dentist so she felt things were progressing nicely and she was happy that she was addressing her medical issues. The complainant said that she was issued with a letter of concern which is, in effect, an informal warning. The complainant claims that she attended a disciplinary meeting on 27 September 2016 with a team leader and a member of HR to discuss her attendance record for an absence in September where she went home due to migraines. She cited her personal circumstances outside of work and the stress involved. On 28 September 2016, she was issued with a final written warning. The complainant claims that she attended a disciplinary meeting on 24 January 2017 again with a team leader and a member of HR to discuss her attendance record for an absence of 4 days in January 2017. She referred to where the HR representative said “I can see an improvement from September to January”. However, on 25 January 2017 she was issued with an informal warning. The complainant claims that she attended a disciplinary meeting on 9 March 2017 again with a team leader and a member of HR and another executive to discuss her attendance record for an absence following an accident in her home and she claims that it was said to her that notwithstanding that the last absence was an accident, “it is still an absence in black and white terms”. On 10 March 2017, the complainant was issued with a notification of dismissal. The complainant appealed this dismissal on the basis that her last absence that led to her dismissal was an accident at home and outside of her control. The appeal was held on 29 March 2017 and following that the Appeals officer wrote to complainant to say her appeal was unsuccessful. In summary, the complainant claims that there was no consideration given to any other alternative other than dismissal, which was disproportionate and not proportionate to the gravity of the complaint. The complainant referred to a number of decisions including Frizelle v New Ross Credit Union [1997] and the decision in Mark Devlin v Ladbrooke (Ireland) Limited, where it was found that Dismissal is a remedy of final resort. A disciplinary procedure should be corrective not punitive. The complainant said that the respondent failed to take into account all the circumstances of her particulars and only made its decision based on the absence level contained in the terms of the Absence Management Policy based on a 12-month rolling period. The complainant claims that the behaviour of the respondent throughout was unreasonable as the complainant was at all times under the care and acting on the advice of her GP. The respondent failed to establish the precise nature of the complainant’s condition and never sent her for medical assessment. The complainant claims that the respondent never made a proper and adequate assessment of the situation before taking a decision to the determent of the complainant. The complainant claims that the respondent’s Absence Management Policy is discriminatory as it fails to take into consideration of all the individual circumstances. |
Findings and Conclusions:
CA-00010751-001 – Complaint under the Unfair Dismissals Act, 1977 The Relevant Law Section 6 of the Unfair Dismissals Act, 1977 provides: “(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. … (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 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, (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. … (6) 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 (4) of this section or that there were substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.” The material facts that there was a dismissal is not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of her excessive absenteeism which was contrary to its Absence Management Policy, which was put in place to counter possible high levels of absenteeism. It claims that she was dismissed after a 10-month disciplinary process which involved five disciplinary meetings, three formal warnings and two informal warnings. The respondent maintains that it conducted a full and fair investigation in line with its disciplinary policies, and following that, it felt that it had no choice but to dismiss the complainant. The complainant said that the respondent failed to take into account all the circumstances of her particular circumstances and only made its decision based on the absence level contained in the terms of the Absence Management Policy based on a 12-month rolling period. The complainant claims that the behaviour of the respondent throughout was unreasonable as the complainant was at all times under the care and acting on the advice of her GP. The respondent failed to establish the precise nature of the complainant’s condition and never sent her for medical assessment. The complainant claims that the respondent never made a proper and adequate assessment of the situation before taking a decision to the detriment of the complainant. I am satisfied that it is for me to consider (1) if there are substantial grounds to justify the dismissal and see what a reasonable employer would do in the same position given the same set of circumstances, (2) to determine if fair procedures were applied to the dismissal and the disciplinary process. The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] IEHC 241 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM. I respectfully agree with the views expressed by Judge Linnane in Allied in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4): “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.” The respondent referred to Jerosenko –v- Mid-West Cleaning UD276/2014 where the employee had been dismissed for excessive absenteeism. I note where it states that “… because of her illness or for whatever reason/s the Claimant’s attendance was poor… The Tribunal determines that the Respondent fairly and reasonably issued the Claimant with various warnings in compliance with Statutory obligations. The Claimant frustrated her own contract of employment. The Claimant was fairly dismissed and her claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.” I note that the general test for this area of absenteeism was set out by the High Court in Bolger –v- Showerings Limited [1990] ELR 184 where it states that an employer can fairly dismiss due to absenteeism where: •it was the incapacity/capability/absenteeism which was the reason for the dismissal; •the reason for dismissal was substantial; •the employee received fair notice that the question of his dismissal was being considered and; •the employee was afforded an opportunity of a fair hearing. I understand from the evidence adduced that the respondent has a strict Absence Management Policy in place, where a particular Clause in the policy deals with intermittent absences. It is clear that the policy states that the disciplinary process will become effective once an employee is deemed to have an attendance issue that is seen as affecting the normal operations of the business. I am satisfied that the complainant was aware of the policy and has signed a copy. I am satisfied that due to the nature of the respondent’s business that excessive employee absenteeism is of particular concern to the respondent and I understand that is why the Absence Management Policy was put in place. I am satisfied that all staff would be clear from reading the policy that continued or excessive intermittent absences over a period of time would run the risk of falling foul of the Absence Management Policy where they could be disciplined in line with its disciplinary procedure. It is clear that the complainant has found herself regrettably in this situation and it is her submission that the respondent was unreasonable, had coldly applied the policy without consideration to her set of circumstances and had not taken her medical evidence into consideration. I note the respondent’s submission that the complainant has excessive absenteeism for all her time working with it and in particular the previous 12-month period and having taken all into consideration she was dismissed for that reason. In relation to the complainant’s contention that she was under the advice of her GP at all times and the respondent was unreasonable in activating the dismissal without seeking further assessment, I note that the respondent said that it had received two medical reports from the company’s doctor and had followed through with what was recommended namely changes to her work chair. I also note the list of ailments with which the complainant was absent from work over the 12 months’ period prior to the warnings and the dismissal in question were as a result of the following medical conditions: flu, viral, palpitations, sinusitis gastroenteritis, stomach bug, diarrhoea, migraines, light-headedness, nausea, acute muscular spasm. I note that in every return to work meeting the respondent required the complainant to “state briefly why you were unfit for work (specify nature of illness or injury)” The respondent said that it was aware of the complainant’s situation and the medical certificates did not allude to any underlying medical condition. The lack of correlation between the conditions appears to be a factor as to why the respondent continually asked the complainant were there any underlying medical condition that her medical doctor was suggesting. I have found that the complainant and her medical team were not feeding back that there was something sinister underlying the need for this excessive absenteeism. I note a paragraph, also raised by the respondent from Frances Meenan’s book, Employment Law 1st Edition at paras 20-114 to 20-115 “One myth that still prevails is that an employee who is out sick and has handed in medical certificates cannot be dismissed. This is a total fallacy… There are many other forms of absenteeism besides long-term, such as intermittent absenteeism with a variety of illnesses or a pattern of being absent on Fridays and Mondays or on a Tuesday after a long weekend. Employers do not have to tolerate this either, but again, all fair procedures and warnings must be exhausted.” I am satisfied that the respondent was fully engaged with the complainant about her health throughout her employment. The relationship between the parties seemed to be open and cordial. The range of illness had not caused the complainant or her own GP to put the respondent on notice of a possible underlying cause. Accordingly, I am satisfied that the respondent had not failed in this regard. Based on the two decisions referred to above, in Jerosenko v Mid- West and Bolger v Showering, it is clear that absenteeism is a sufficient reason for an employer to dismiss an employee once certain circumstances exist and the employers have carefully taken particular steps in advance of arriving at that decision. I am satisfied from the evidence submitted that there was excessive intermittent absenteeism and that was the reason for the dismissal. I am satisfied that this was causing a substantial difficulty for the respondent due to the nature of the business and the complainant was aware of that. I am satisfied that the complainant was aware that her excessive intermittent absenteeism was considered very serious and was being dealt with under the respondent’s disciplinary procedures and that she was afforded an opportunity to a fair hearing through-out this entire process. Accordingly, I find that the actions of the respondent to dismiss the complainant were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal. The second issue which I must consider relates to the procedural fairness or otherwise of the complainant’s dismissal. The complainant contends that the procedures which were invoked by the respondent in terms of the manner in which the investigation and disciplinary procedures were conducted were unreasonable. I note the respondent held many meetings with the complainant and there were many discussions with the complainant about the possibility of underlying health issues in regard to her excessive absenteeism. I note that the complainant, although on notice of the possibility of disciplinary sanction, said that things were under control, there was nothing that her employer could do to assist any further and that it was her life outside of work that was taking its toll. In relation to the procedures adopted I refer to the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that: 1. the details of the allegations or complaints be put to the employee concerned; 2. the employee concerned be given the opportunity to respond fully to any such allegations or complaints; 3. the employee concerned is given the opportunity to avail of representation; and 4. the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances. I also take note of the decision in Foley V Post Office (2000) CR1283 as stated by Mummery L.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers’ decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”. In considering this matter, I am satisfied that the respondent had its own established Grievance and Disciplinary Procedure in place. I have examined that document and I have carefully considered the manner in which the disciplinary procedures were applied in the present case. I am satisfied that the complainant was given advance notice of all the return to work meetings and the disciplinary meetings. The complainant was advised of what was happening through-out and provided with copies of the relevant Procedure. I am satisfied that the complainant was given the opportunity to be represented through-out the process. Having examined the respondent’s Disciplinary policy, I am satisfied that the process adopted was followed in line with the respondent’s own policy. I note that following the investigation and disciplinary stages, the complainant was also afforded an appeal process. I note that the respondent referred to the decision in Baran -v- Donegal Meat Processors, t/a Foyle Donegal (UD608/2013) where an employee failed to comply with the company’s rules in respect of absence notification and was dismissed following a warning process in line with company policy. The EAT found the dismissal to be fair, it said: “The claimant had been in breach of the respondent’s somewhat strict policies… However, he had been warned as to his conduct and the Tribunal understands that the respondent was anxious not to let absenteeism take root in its workforce. Production timelines were short and had to be so… Having carefully considered the evidence adduced, the Tribunal finds that the dismissal was not unfair within the meaning of the Unfair Dismissals Acts, 1977 to 2007.” I am satisfied that the respondent generally followed its own disciplinary policies and ultimately dismissed the complainant after a long period of excessive absenteeism, where it fully engaged and supported the complainant throughout. I would suggest that an employer should have rules for its employees in respect of absenteeism. They should be clear and simple to understand. They should be circulated to all employees so everyone is aware of the possible consequences for absenteeism. I am satisfied that the respondent had these rules in place and I am equally satisfied that the complainant was aware of them and from all the warnings was not ambushed by her subsequent dismissal because of her excessive absenteeism. I accept that the dismissal for excessive absenteeism followed a fair and transparent disciplinary and warning process and fell within the band of reasonableness that a reasonable employer might make. Also, although it was not raised by the complainant in this complaint, I believe that it is worth mentioning, that the manner in which the respondent conducted the investigation, disciplinary hearing and appeal in this case fully complied with fair procedures and natural justice. In all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal. Accordingly, I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is not well founded. |
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 by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is not well founded. |
Dated: 17 April 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Unfair Dismissals Acts 1977 to 2015 – excessive absenteeism – not unfairly dismissed. |