ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019181
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 20/06/2019
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant commenced employment on 10th August 2015 with the Respondent company which is a large Engineering company and was employed as a Fitter Welder prior to his employment being terminated for gross misconduct on 17 September 2018. His normal hours of work were 37.5 hours per week.
Summary of Complainant’s Case:
The Complainant commenced employment with the company on 10th August 2015 as a fitter and had a blemish free track record with the company prior to dismissal.
The Complainant was on certified sick leave from 20th - 24th August 2018 due to back pain. During this period the Complainant did go on holiday as he believed the rest would facilitate a speedy recovery. He was contacted while on leave by the company to attend their doctor and mistakenly agreed to attend an appointment on 23rd August 2018.
The Complainant reacted in haste to a telephone call and should have explained he would attend on his return from leave. Instead the Complainant rearranged the appointment for Monday 27th August 2018.
Having rested for the week the Complainant was fit to return to work on Monday 27th August 2018 so did not attend the company doctor.
Subsequently, the Complainant was charged grossly exaggerated allegations by the company including insubordination and falsifying or manipulating company records.
The Complainant refuted the allegations in his letter dated 12th September 2019.
The Complainant was dismissed for alleged serious misconduct on 17th September 2018.
The Complainant wrote a detailed letter of appeal dated 25th September 2018 stating the outcome was disproportionate and unjustified.
His grounds for appeal included the rebuttal of the 4 original allegations as follows:
1) Failure to attend for an arranged, and agreed, medical appointment on Thursday 23rd August 2018.
- This was agreed to in error and the Complainant apologised during the investigation for not explaining immediately he would be unable to attend.
2) Failure to submit a holiday form for pre-booked annual leave.
- The Complainant’s initial rehabilitation was at home and he did not go on leave until Tuesday 21st August 2018, so a form was not necessary.
3) Suspected abuse of the illness and accident benefit scheme.
- The Complainant was cleared of this allegation.
4) Without reference to HR you rearranged the Company schedule medical appointment to Monday 27th August at 12.30pm which you failed to attend.
- The Complainant explained he was well enough to attend work on this day so believed attending a doctor’s appointment was pointless.
It was raised at the appeal hearing that the company was also in collective negotiations during this time facilitated by the WRC, regarding the sick pay scheme as that the Complainant was being ‘made an example of’ as the scheme has been suspended for a period.
It was also noted that this was the Complainant’s second job in his career and being dismissed in these circumstances could have lasting effects on his future employment.
The Complainant answered the original allegations outlined in the company’s letter of 11th September 2018. However, further allegations are detailed in the letter of dismissal dated 17th September 2018 which sought to exaggerate the circumstances of the Complainant’s absence demonstrating unfair process.
The Complainant apologised for agreeing to attend an appointment while out of the country and not being forthright about his whereabouts. This mistake is not a serious misconduct issue and did not warrant dismissal. The company was disproportionate in its response to this matter.
Summary of Respondent’s Case:
On 20th August 2018, a certificate stating back pain was handed in for the Complainant, there was no date on this certificate. On 22 August, a manager reported to HR representative A to let her know that some of the Complainant’s colleagues were saying that the Complainant was going to take sick leave from 20th - 24th August whilst going abroad on holidays.
As the certificate was not dated or stamped, HR representative A telephoned the surgery from where the certificate was issued to enquire as to the date of the certificates. The surgery volunteered that the complainant had attended an appointment on Friday 17th August at 10.00am and he had received the medical certificate at that time. From the clocking records for that day, Friday 17th August, HR representative A established that the Complainant had clocked in at 12.23 and had left at 18.30 that evening.
A company doctor appointment was arranged for the following day, Wednesday 23 August 2018. HR representative A telephoned the Complainant to inform him of the appointment. The Complainant did not answer the phone but HR representative A noticed that there was an international dial tone. The Complainant rang back that afternoon. HR representative A asked him how he was and the Complainant told her that an old back injury that he sustained outside of work was giving him trouble again. HR representative A expressed her concern and informed him of the appointment she had arranged with the company doctor. During this call, the Complainant declined to attend the appointment twice, saying that he didn’t need to attend as he had already seen his own doctor. HR representative A pointed out the direction to attend a company doctor appointment was in line with company policy and the Complainant then finally agreed to attend. She indicated that she would send out a confirmation letter with the appointment details and she did so that day.
On Thursday 24th August, HR representative A telephoned the company doctor surgery to confirm the Complainant had attended his scheduled appointment. The surgery informed HR representative A that he had telephoned the surgery 30 minutes before the appointment time and rescheduled the appointment to 27th August at 12.30. HR representative A telephoned the Complainant on both Thursday 24th and Friday 25th and left voicemails for the Complainant on both occasions directing the Complainant to call her back. The Complainant did not answer and did not return her call contrary to the directions left.
At 11.35 on Monday 27th August, the Complainant finally returned her call. He said he didn’t attend the appointment the previous Thursday as his back was killing him. He said he was on strong medication and couldn’t make the trip to the surgery. He also informed her that he had started taking the tablets on Wednesday morning. She informed him that he should have contacted her to let her know he was unable to attend the appointment as the company had arranged it. She asked him why he didn’t do this and he had no explanation.
He then queried why he was the only employee that was required to attend a company doctor after submitting a cert. She replied that this was in line with company policy and she wasn’t in a position to discuss any other employee. He wanted to know what her problem was and she explained that it was in line with company policy to attend the company doctor if required. She asked him if he was attending work that day and he confirmed that he was.
Later that day, a meeting was held between HR representative B and the Complainant. The Complainant was asked why he was absent from work the previous week and he stated that he had a back injury.
HR representative B asked him when the medical cert was submitted. The Complainant stated that he attended his doctor because he had a sore back, he queried why the company had made an appointment with the company doctor. HR representative B explained that it was in line with procedure and a reasonable request when someone is absent and he stated he genuinely had a sore back.
HR representative B asked him how he was feeling on his return to work. He explained that he felt fine and that he wouldn’t be at work if he wasn’t. HR representative B queried why he didn’t attend the company doctor appointment the previous Thursday. The Complainant admitted that he was away for a few days. HR representative B stated that he was out sick on Monday 20th and enquired when he went to the doctors. The Complainant stated Friday evening. HR representative B asked him what time his shift started on Friday and he replied 12.30pm. She questioned when he went to the doctor. He replied for the second time that he went on Friday evening after work at 18.30pm and mentioned that his back was sore at work. HR representative B asked him had he informed anyone of this and he said no. HR representative B said that for future reference it was important that he tell his supervisor/foreman at work if he was in discomfort while working.
HR representative B put to him that when HR representative A called him she heard a foreign ringtone. He confirmed he went away on Tuesday 21st August. HR representative B recapped what he had told her and the Complainant replied that there seemed to be a big problem and if there was a big problem it might be best to not pay him. HR representative B put to him that HR representative A had rung the surgery because there was no date on the certificate. She asked him when he received the medical certificate. The Complainant responded for the third time that he went to the doctors after work on the Friday evening.
He then also volunteered that he and his partner were planning on going away Saturday to Saturday but his partner got job interviews on the Monday and Tuesday so their plans changed.
HR representative B put to the Complainant that she understood that he had informed HR representative A that morning that he went on strong painkillers on Wednesday morning but he had just told her he went away on Tuesday. She asked the Complainant if he was out of the country and he admitted that he was. She asked him how he managed to travel with the back pain. He replied that it wasn’t anyone’s business where he recovered. HR representative B replied that she was trying to understand what happened. She asked him again why he didn’t tell anyone about his back pain on Friday and he said it wasn’t anyone’s business. She pointed out that it was very important from a safety perspective.
She asked why he didn’t answer HR representative A’s call and he said that there was no point. She asked if he attended the doctor’s appointment that day and he replied that there was no need.
She informed him that given the lack of clarity around his absence the previous week there would need to be a full investigation and she would be inviting him to an investigatory meeting and he would be entitled to representation. The Complainant stated that this was just another way to get another contractor out of the company and kicked the chair and got up to leave.
HR representative B informed him that she hadn’t finished and he sat down again. She stated that he seemed quite agitated and he denied that he was. She clarified that he understood why the investigation was taking place and he replied that the company was making something out of nothing and the easiest way to deal with it was not to pay him. She informed him that the investigation would be going ahead before any decision was considered.
On 27th August, the company met with another fitter, his work colleague who had handed in the cert for the Complainant. He confirmed that he had received the medical cert on Saturday morning when the Complainant dropped it to his house. He confirmed that he was off on Friday and brought it to work on Monday and handed it to the foreman. He was asked how the Complainant made contact with him and he informed HR representative B that the Complainant texted him on Saturday morning. He confirmed that there had been no contact on the Friday. He didn’t know if the Complainant had been off prior to receiving the cert and when asked if any of his colleagues knew in advance that he would be off, he said no, not that he was aware of.
An investigation meeting was notified to the Complainant on 28th August and held on 30th August 2018. Prior to this investigation meeting, he was provided with:
- A copy of HR representative A’s statement
- Copy of the disciplinary policy
- Company of the illness and Accident scheme.
He was also informed of the following allegations against him:
- Failure to attend an agreed and arranged medical appointment on Thursday 23rd August;
- Failure to submit a holiday form for pre-booked annual leave
- Suspected abuse of the illness and accident scheme
- Rearranging the company scheduled medical appointment to Monday 27th August without notification to HR and to which he failed to attend.
He was informed of the right to union representation.
On attendance at the investigatory meeting, the Complainant brought a work colleague who was a witness to matters under investigation. The company adjourned the meeting to allow him the opportunity to arrange alternative representation. Prior to the meeting commencing, the Complainant confirmed that:
- He had read and understood the letter inviting him to the meeting;
- The purpose of the meeting was to understand and clarify events that occurred the previous week and should there be evidence of a breach of discipline, this could be dealt with under the disciplinary policy
- All parties present confirmed they understood this and when provided with the opportunity to ask any questions, had none.
When asked to explain his absence, the Complainant explained:
1. His back was sore on Friday and he went to the doctor before starting work, it had been at him during week and he took nurofen before work on Friday.
2. He stated that he was going to see would his back improve but on Saturday it got worse so he dropped the cert to his work colleague. He informed the investigator that he was originally due to go away Saturday to Saturday but his partner got a job interview so they delayed going away until the Tuesday. He went away for a few days during the week off.
3. HR representative B put to him that he had told her the previous week that he went to the doctors after work on Friday. He explained that he had made a mistake because he was nervous. HR representative B pointed out to him that he clocked in at 12.23 on Friday. He explained he took nurofen so he felt better but his back got worse as the evening went on. He confirmed he hadn’t told anyone.
4. HR representative B questioned why the cert was dated Monday – Friday as if he went to the doctor on Friday with pain. He explained that the doctor got it wrong, it should have been Friday to Friday. He confirmed that he took nurofen but his pain got worse. He confirmed that he gave the cert to his work colleague on Saturday morning. She asked him how he communicated with his work colleague, he said he rang him. MR put to him that his work colleague had told him that he received a text from him and the Complainant backtracked saying that he wasn’t sure, it could have been a text. She asked him for a copy of the text and he said he didn’t think he had a copy of the text.
5. HR representative B asked him when he booked his holiday, did he hand in a holiday form and he said no. She asked when he booked his holiday and he told her he booked it a few weeks ago and informed the Complainant’s foreman that he might be taking holidays. He said that his foreman would confirm it.
6. HR representative B asked him when he decided to go on holidays and he replied that his partner booked something a few weeks ago but it had to be cancelled due to her interviews. She asked if his back was better and he confirmed that it was and that was why he was back at work.
7. He admitted not telling the truth to HR representative A the previous week in that;
a. He went on holidays on Tuesday evening and it was bad judgment not to inform HR representative A when she rang him on Wednesday. He got nervous because he was out of the country.
b. He was unable to answer his phone Thursday and Friday because his phone was dead and he didn’t have a charger.
c. He didn’t attend the appointment on Monday because he presumed because he was back at work he didn’t have to attend. He confirmed that he hadn’t told HR representative A that he wouldn’t attend the appointment. He also confirmed he hadn’t told the surgery he wasn’t attending.
d. HR representative B put all the inconsistencies in his story to him and provided him with an opportunity to correct the record.
On 30th August, HR representative B met with the Complainant’s foreman who confirmed that:
1. He had never received a holiday form from the Complainant.
2. The Complainant had enquired about taking holidays from him a number of weeks earlier but hadn’t given any dates. He confirmed that the Complainant had no holidays left to take and he had informed the Complainant of this.
3. The Complainant then requested excused absence and he declined this request. He had been off the previous week so only became aware of his absence when he returned this week.
On 11th September, a copy of the Investigation Report was completed and sent to the Complainant who was invited to a disciplinary meeting to take place on 13th September. Enclosed with the letter of invite were the following documents:
- Discipline and dismissal procedures (Article IX, Employee Handbook)
- Disciplinary procedures (Article X, Employee Handbook)
- Illness and Accident scheme
- Medical certificate received 20th August 2018
- Statements from
o HR representative A
o Complainant’s foreman
o Work colleague
- Minutes of investigatory meeting dated 30th August
- Minutes of meeting with complainant dated 27th August
- Copy of investigatory report
He was informed of the allegations against him, the right to representation and that the potential outcome of the disciplinary meeting could be disciplinary action up to and including dismissal. He was also informed that the managers hearing the disciplinary case would be the Quality Manager and HR team leader.
On 12th September, the Complainant wrote to the HR team leader confirming that he would attend the meeting and setting out his response to the allegations as follows;
- He denied engaging in serious misconduct or attempting to defraud or manipulate the company. He explained that at the time he submitted the medical certificate, he believed that the company sick pay scheme was suspended and he didn’t seek or expect payment for his absence and didn’t falsify or manipulate any record.
- He denied refusing to carry out a reasonable instruction in failing to attend a company doctor appointment. He confirmed that he had accepted the appointment for 23 August but had rescheduled that appointment. He didn’t attend the resumed appointment because his back had recovered sufficiently and he believed that this was a reasonable presumption. When he attended work on 27th August, he was still willing to attend an appointment.
- He had confirmed that he attended his doctor on Friday August 17th and that he delivered the medical certificate to another employee’s house on Saturday August 18th and that HR representative A had confirmed that he rescheduled the medical appointment.
A disciplinary meeting was held on 13th September 2018. Present at this meeting were the Complainant, his union rep and the two managers hearing the matter. During the meeting, he was provided with the opportunity to comment on all the available evidence before him and to respond to the allegations which had been put before him. The meeting lasted two hours and went through all the evidence in detail from September 13th and September 17th.
At the commencement of the meeting, the Complainant confirmed that he was represented by his shop steward and confirmed that he had received all documentation in advance. He was informed that the outcome of the meeting could be disciplinary action up to and including dismissal.
During this meeting, the Complainant admitted to booking his holiday around 1 August but not cancelled until late of the evening of Thursday 16th August yet between these dates the Complainant failed to approach his line manager to confirm that he had booked a holiday. He provided a copy of his boarding card as evidence that he had departed on holiday on Tuesday 21st August but did not provide any information about when the holiday was booked or cancelled.
The Complainant was asked why did he take sick leave when he had a pre booked holiday. He said his holiday was cancelled late on Thursday night so he wasn’t going on holiday when he went to the doctor. After taking tablets, he felt better so he continued to work. He explained that he hadn’t looked at the cert but understood it was a mistake to come into work after being found unfit to work. When asked to explain why the cert was dated from Monday and not from Friday when he visited the doctor. He said he didn’t know he assumed the Doctor thought as he was at the appointment on Friday that he wasn’t attending work that day and dated the cert from the following Monday. He understood the cert covered him from Friday to Friday. He hadn’t discussed the length of the cert with the doctor and couldn’t explain therefore why he presumed the cert was for one week.
The company asked him to explain that what he was asking the company to accept was that:
- He felt unwell enough to go to the Doctor
- Got a cert for what he assumed included that Friday but was actually from the following Monday.
- Proceeded to come to work then go sick the following week when he admitted his partner had booked a holiday for.
He confirmed that he had brought the cert to work with him on the Friday but hadn’t handed it in or spoken to anyone about feeling unwell. He was surprised to hear that colleagues had spoken openly about going on holidays that same week and reporting that the cert was seen on the Friday.
He admitted lying under pressure from questioning from HR representative A the following week. He denied that the holiday had been pre planned.
He didn’t come to work the following week as he had done on Friday because his back had got worse. He confirmed that his back got worse between Friday being at work and Saturday and that was why he dropped the cert to his work colleague on the Saturday. When asked why then had he booked a holiday at the last minute on Tuesday if his back had got worse, and he attempted to justify his behaviour stating that it didn’t matter where he recovered.
He couldn’t explain why he panicked and lied to HR representative A on the Thursday if he had felt he had done nothing wrong in recovering on holiday. He panicked and contacted the medical centre directly to cancel 30 minutes before his appointment time on Thursday. He couldn’t explain why he waited until 30 minutes before the appointment to cancel.
She pointed out to him that he had told HR representative A that his back was very sore on Wednesday and due to that and medication he wasn’t able to attend the company doctor. He was asked if his back was sore, how did he manage to travel on holiday. He explained it got progressively worse. He accepted he had lied to the investigator.
He was asked about not answering HR representative A’s calls. He explained that he couldn’t answer the calls as he had no battery charge on his mobile. He couldn’t answer something that wouldn’t ring. He confirmed that he had his mobile phone with him now but was unable to show the activity for calls and texts now as he clears down his phone every week of calls and texts. He didn’t think this was unusual.
He confirmed that he didn’t attend the medical appointment that he had rescheduled and didn’t cancel this appointment either. He also confirmed that he hadn’t told HR representative A that he wasn’t attending.
He confirmed reading the notice of 12th July confirming that the sick pay scheme had been suspended but denied reading the notice of 13th August stating the sick pay scheme had been temporarily reinstated.
The meeting was adjourned and the Complainant was provided with the opportunity to provide any further information he wished the disciplinary panel to consider, in particular around the timing of the booking of his holiday.
The complainant was written to following the disciplinary hearing on 13th September on September 14th . In this letter it was confirmed to him that the allegations against him were in respect of his:
- Failure to attend an arranged and agreed medical appointment on Thursday 23rd August
- Failing to submit a holiday form for pre-booked holidays
- Abuse of illness and accident benefit scheme;
- Directly rearranging a company scheduled medical appointment and failing to attend at the designated rearranged time without notification to HR
They confirmed that he had agreed to provide:
- Booking date of holiday from Saturday 18th August to Saturday 25th August
- Cancellation date of holiday
- Booking date of holiday on Tuesday 21st August.
No such information was forthcoming from the Complainant and a disciplinary outcome meeting was held on 17th September.
At this meeting, the Complainant was again provided with the opportunity to provide booking details of his holidays which he failed to do. He produced a boarding card and alleged that there was no flight booking information, his partner had texts and nothing else. The Boarding pass was considered prior to communicating the outcome to the Complainant.
A decision was made to terminate the complainant’s employment for serious misconduct. In reaching this decision, the panel reached the following conclusions:
- The panel believed he planned to take leave week of 20th august to coincide with pre booked holiday from Saturday 18th August to Saturday 25th august knowing that he had no annual leave and would not be approved for excused leave.
- He lied about the time he attended the Doctor’s practice to obtain a medical cert initially stating it was after his shift ended at 6.30pm on Friday 17th August but later admitting it was at 10.30am on Friday 17th August before his shift started. He admitted bringing the medical cert to work with him on Friday but didn’t give it to anyone or disclose he felt unwell. The panel believed that this was an attempt to conceal that he had been found unfit for work before his shift started so he could pass the sick cert for submission the following week.
- He requested annual leave from his manager in or around the 3rd or 4th week of July for two weeks. He didn’t disclose dates but was informed this request was declined. Excused absence was discussed and also declined.
- He informed them that the holiday was booked on 1st August and cancelled on 16th August yet failed to inform his manager about this leave before then.
- He admitted to lying to a HR representative on 22nd August by confirming that he would attend the medical on 23rd August despite being out of the country at the time and when he knew he couldn’t attend.
- He attempted to hiding the truth by contacting the company doctor, shortly before the appointment and rescheduling the appointment for Monday. He then alleged that his phone ran out of battery when the HR representative tried to contact him leading the panel to believe that the phone was deliberately switched off.
- On 27th August, he confirmed to HR representative A that he would attend work as normal that evening. He didn’t disclose or check about the medical appointment that he had rearranged and then failed to attend the appointment.
- His partial admission of the truth only came out when he couldn’t hide it anymore and he behaved defensively and deliberately deceitfully.
- Whilst he may not have deliberately set out to get paid for his holidays, it was clear that he planned to travel on a pre-planned holiday without authorised leave.
- He was informed that his employment was being terminated without notice and that he had a right to appeal.
The Complainant appealed to the Finance Director. In his letter of appeal dated 25th September, he stated his grounds of appeal were as follows:
1. The decision was extreme, disproportionate and unjustified. He didn’t falsify or manipulate company records, he didn’t seek to be paid for his time off but was medically certified as unfit for work during that period. He only went on holidays on 21 August.
2. He acknowledged that he should have told HR representative A he was out of the country and unable to attend the appointment. He contacted the surgery himself to rearrange the appointment. He then didn’t attend as he was fit to return to work. He explained this as a misunderstanding.
3. The company had contacted the doctor without his permission. He believed that his employment was being terminated as a means to rationalise the workforce and a lesser sanction should have been applied.
4. He was aggrieved at his levels of annual leave and he had produced a genuine medical certificate. He denied engaging in serious misconduct.
An appeal hearing was held on 18th October 2018 where the Complainant was represented by his full time union official. During this meeting, he admitted that he was wrong and made a serious mistake but it didn’t justify a dismissal sanction. His official commented that she believed that he was being made an example of and he was being treated harshly.
He continued to maintain that he was not aware that the sick pay scheme had just been reinstated before going on sick leave and that he hadn’t taken any notice of the issue. He confirmed the date on the boarding pass but was unable to confirm when the flights were booked. The booking was not made by him and he didn’t have access to this. He was no longer in contact with the person that he went on holidays with any more so could not ask them for this.
He clarified that the doctor’s certificate should have been from Friday 17th August and not Monday 20th August as previously stated, and there ‘must have been an error of communication between him and the doctor in this regard’. When asked if he felt he was certified from the Friday, why he had gone to work that day, he replied ‘he wouldn’t take work off easily’.
He was asked to clarify in relation to being capable of travelling, if his back was killing him on Thursday 23rd August as noted in the investigation report when he was explaining to BF why he wasn’t attending the medical appointment. The Complainant replied that his back was still sore. When asked if this reason was supplied so as to avoid going to the doctor’s appointment, he confirmed that it was.
When asked when he began to feel better, he confirmed that he was still ill in Portugal and he began to feel better on Friday 24th and Saturday 25th before returning to work on Monday. When asked if he attended a doctor in Portugal, he confirmed that he had not.
He was asked about his query about his annual leave and this was clarified. The Complainants concerns around an alleged breach of confidentiality were also discussed and clarified. The union were invited to obtain notes of the mediation from the union side. They confirmed his appeal grounds were as follows:
- His good reputation over the past 3 years
- The disproportionate sanction
- Ongoing negotiations over the sick pay scheme possibly overshadowing actions in relation to the incident;
- Lack of reference
He was asked to provide details of when the flight was booked and was unable to do so, explaining that the credit card was not his and he was not in contact with the person he went on holidays with anymore. It was explained to him that there were three possible outcomes;
a) Uphold the sanction
b) Reduce the sanction
c) Overturn the sanction and find no sanction should be applied at all.
Following the appeal hearing, the Finance Director took some days to consider the decision. He reviewed the file and considered all representations made by the Complainant and on his behalf. His decision was to uphold the disciplinary sanction.
In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.
Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far reaching implications of his actions.
The Complainant’s actions amounted to gross misconduct. During the course of the hearing, the Complainant’s evolving version of events required the company to believe that:
- A prebooked unauthorised holiday was cancelled on a Thursday but he couldn’t access these details.
- On Friday, he felt unwell enough to go to the Doctor.
- The Complainant got a cert for what he assumed included that Friday but was actually from the following Monday.
- After going to the doctor on the Friday, the Complainant felt well enough to come to work then go sick the following week.
- The Complainant did not think to tell his supervisor on the Friday that he was unwell or had a medical certificate in his possession.
- The Complainant could not recall whether or not he had contacted his colleague on Saturday morning by text or phone but couldn’t access these details because he deleted the call and text lists on his phone every week.
- The Complainant was well enough to travel to Portugal on the Tuesday evening and a flight was booked for him at short notice but which he was unable to access the details.
- The Complainant then became unwell on Wednesday and needed to take painkillers so was unable to attend the doctor on Thursday.
- The Complainant understood that he was required to attend the doctor on Thursday but cancelled it as he was unwell and rescheduled for the Monday.
- The Complainant was able to ring the doctor 30 minutes before his appointment on Thursday to cancel his appointment but didn’t have sufficient battery to listen to messages or return calls to the company on either Thursday or Friday.
- The Complainant had a conversation with HR on Monday morning about the requirement to attend company doctor appointments and to reschedule such appointments through HR but neglected to mention his assumption that he no longer needed to attend the appointment made for that date. Also failed to cancel the appointment that he had arranged and assumed that the doctor and the company would know that he was not attending.
- The Complainant was under the misapprehension that he was no longer required to attend the doctor despite being told on a number of occasions by HR that it was policy but was well enough to come back to work on the Monday afternoon.
- The Complainant was unable to access his flight booking details during the disciplinary and appeals process because he was no longer in contact with the girlfriend he went on holidays with despite the fact that she had written a letter for him which he presented at the disciplinary meeting of September 13th.
When considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself and his conduct during the investigation process.
Findings and Conclusions:
The guiding principles in Looney & Co. Ltd –v- Looney state:
“it is not for the Tribunal to seek to establish the guilt or innocence of the complainant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”
I am satisfied that the Complainant was aware of the importance and significance in terms of compliance with the Respondent’s procedures, and indeed the law, and of the potential disciplinary sanctions, up to and including dismissal, for any breaches. I believe that fair process was applied and I find that the Complainant’s actions clearly constituted a breach of the Respondent’s policies which amounted to gross misconduct.
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 Unfair Dismissals Acts. Accordingly, I find that the Complainant’s claim is not well founded.
Section 7 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 set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.
Dated: 7th August 2019
Workplace Relations Commission Adjudication Officer: Caroline McEnery