ADJUDICATION OFFICER DECISION
A Manufacturing Firm
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 6 of the Payment of Wages Act , 1991 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant was employed as a welder with the respondent from the 26th.May 2017 to the 8th.January 2019 when it was submitted, he was unfairly dismissed. It was submitted that the claimant passed his 3-month probationary without issue. It was submitted that the respondent failed to observe their own disciplinary procedures in effecting the claimant’s dismissal.
The claimant is a Lithuanian worker and his first language is not English. It was submitted that following the Christmas holidays in January 2019, the claimant returned to work, that it was very quiet and as the claimant had guests visiting him at the time , he approached his supervisor on the 2nd.Jan. 2019 for time off and secured verbal permission.
On the 7th.Jan. 2019, the claimant texted Mr.GMcC to explain he had to go to hospital and would not be in .The claimant got an emergency appointment with his GP that morning. It was submitted that the following day the claimant was dismissed. The claimant denied that he was requested to attend an earlier disciplinary / counselling meeting regarding his attendance record. It was submitted that the claimant was not given notice of the meeting on the 8th.Jan. 2019, that he was not advised to bring a work colleague and that the respondent failed to organise a translator to attend the meeting.
It was submitted that the respondent failed to observe their own disciplinary procedures and ignored the escalating procedure provided for in their procedures. The claimant disputed that he had been the subject of a counselling stage .The next step provided for is a formal verbal warning which the claimant did not receive. The claimant was not invited to confirm the accuracy of the alleged counselling / disciplinary meetings. It was submitted that the claimant had not been given notice of the dismissal meeting and consequently had no time to prepare. The claimant was not afforded the right to have a work colleague present .It was submitted that the respondent should have arranged a translator to attend the meeting so that the claimant would have understood the complaint against him and the company procedures. It was advanced that the claimant had not been furnished with either a first written warning or a final written warning – contrary to the provisions of their own procedures. The claimant was not suspended pending an investigation and the respondent had digressed from the escalating procedure and gone straight for dismissal. It was contended that the claimant was denied his right to fair procedures and natural justice.
It was submitted that Mr.GMcC had consented to the claimant’s absence from the 3rd.-5th.Jan. 2019 and that he would not have been absent if permission had not been given. It was submitted that the claimant had observed the company sickness procedures on the 7th.Jan. 2019 when he texted the manager at 8.30a.m. before the 9.30a.m. deadline advising of his illness.
It was contended that the company policy on performance had not been observed and that the initial step should have been a discussion between the claimant and his supervisor on any performance concerns which he should have been given an opportunity to remedy. It was contended that the sanction of dismissal was disproportionate to the alleged poor performance issues.
It was advanced that the claimant was the sole income earner in his family and when he had previously established that he would not receive Social Welfare while sick , he had no option but to return to work. It was submitted that family came first for the claimant , that his daughters had been quite ill during the previous year and the family were entirely dependent on the claimant as his wife did not drive. It was contended that the claimant had not been absent without leave .
The claimant disputed the absence figures presented by the respondent and argued that several of the incidences which were represented as absences amounted to only 2/3 minutes late attendance.
It was submitted that the respondent was in breach of the Payment of Wages Act 1991 for failing to pay the claimant his statutory notice.
Summary of Respondent’s Case:
The respondent denied that the claimant had been unfairly dismissed and contended that the business had a very good employee relations policy and had never been before the WRC previously. The company had 120 employees and kept up to date on staff relations and Human Resource Management – they had staff assigned to specialist Health & Safety and Quality briefs. The respondent asserted that the claimant had a history of poor attendance and set out a chronology of the claimant’s absences over the previous 2 years. The respondent denied that they had failed to raise the attendance issue with the claimant and argued that the matter had been raised with the claimant at a formal meeting and the claimant’s response had been that he put his family first. It was contended that the claimant had 13 absences without leave, a sick day without a sick note and 18 lates prior to his dismissal. It was advanced that the claimant had left work early on 51 occasions and on 14 occasions he had left work without returning. It was submitted that a meeting took place on the 11th.October to discuss performance and poor attendance. It was submitted that of the 48 weeks worked in 2018, only 29 weeks were full weeks worked. At the October meeting , when the attendance figures were presented to the claimant , he had broken down advising that he had family issues and that his daughter had nearly died .It was submitted that any other employee would have been long gone in similar circumstances .It was accepted that no correspondence issued to the claimant regarding absences. Mr.GMcC had a discussion with the claimant on the 20th.Dec. 2018 –the manager had hoped that 2019 would realise a better year for the claimant in terms of attendance.
It was submitted that the claimant left early on the 2nd.Jan. 2019 and” we didn’t see him until the 8th.Jan 2019”. The company had reviewed the claimant’s absences prior to the meeting on the 8th.January and he was asked at the meeting what he had to say about his attendance. The claimant had replied that his family was his priority and it was contended that the claimant did not indicate that he intended to improve. The respondent insisted that the claimant was afforded his rights to representation. It was submitted that it was obvious at the meeting that there was no commitment to change on the part of the claimant. It was submitted that the claimant was guilty of gross misconduct and had failed to fulfil the terms of his contract of employment on 29 occasions. It was submitted that on one occasion the claimant was found standing asleep at work and on another occasion, he had to leave to get tyres for a car and had declared he had to go. It was submitted that the claimant had left early on 51 days. It was contended that the company had no record of a call by the claimant to the office prior to his dismissal. It was argued that the fact that the claimant left early did not mean it was authorised and that a late was a late irrespective of the duration of one or more minutes. It was submitted that when management met with the claimant on the 11th.October, they were trying to be firm but not heavy handed. It was contended that as the claimant had given no commitment to change at the final meeting, the company had no option but to dismiss him. It was submitted that if someone leaves the premises and does not return, it doesn’t mean the absence is authorised.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 have reviewed the evidence presented at the hearing and noted the respective position of the parties. While I acknowledge the respondent’s frustration with the claimant’s poor attendance , it is clear from the evidence presented at the hearing that management of attendance appears to have been very casual , that there was a lack of clarity about what was and was not an authorised absence and that the company’s own escalating procedures were not invoked with any level of formality with a view to resolving the problem. While the matter of representation or being accompanied by a colleague is disputed between the parties, it is clear that the claimant was not given advance notice of the dismissal meeting, of the charges against him and of the possibility of an outcome of dismissal. To compound matters, no translator was provided at the meeting. The respondent has acknowledged that the claimant was not issued with any written warning about his attendance deficits. In light of all of the foregoing, I have concluded that the claimant was not afforded his rights under natural justice and that the company failed to observe their own disciplinary procedures. Accordingly, I am upholding the complaint of unfair dismissal. I cannot ignore the significant attendance absences and find that the claimant, by virtue of his attendance record, contributed significantly to his own dismissal. I have factored this into the quantum of the award. I require the respondent to pay the claimant €6,000 compensation.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
In light of my decision to uphold the complaint of unfair dismissal , I am satisfied that the claimant was entitled to one weeks’ notice and accordingly I require the respondent to pay the claimant €431.25.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: