SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
SEETEC EMPLOYMENT AND SKILLS IRELAND DAC
(REPRESENTED BY DAC BEACHCROFT DUBLIN )
- AND -
(REPRESENTED BY MORAN & RYAN SOLICITORS LLP)
1.Appeal of Adjudication Officer Decision No(S) ADJ-00025328 CA-00032212-001
The fact of dismissal is not in dispute.
The uncontested background facts of the matter before the Court are as follows:
The Appellant commenced employment with the Respondent on 10thOctober 2016 and the employment terminated by reason of dismissal on 17thJune 2019.
The stated reason for the dismissal of the Appellant was a repeated failure to follow company guidelines which, in the Respondent’s view, constituted gross misconduct. The decision to dismiss took account of the fact that the Appellant had received a number of ‘final written warnings’ arising from his failure to follow company guidelines in relation to absence including by being absent without leave.
Summary position of the Respondent
The Respondent submitted that the decision to dismiss the Appellant fell within the band of reasonableness in terms of behaviour by a reasonable employer in the circumstances pertaining.
The Appellant has not challenged the extraordinary volume of absences which occurred throughout his employment following a period of perfect attendance during the probation element of his employment.
The Appellant was called to repeated disciplinary meetings where the matter at issue was his sustained and repeated absenteeism. He was given every opportunity to improve and was given medical and counselling supports. The Appellant was fully aware, including through repeated warnings in writing, that his performance in terms of absence remained under review and that repeated absenteeism might result in the imposition of a significant sanction up to and including dismissal.
The Respondent submitted that on 11thJune 2018, as a result of an appeal of a decision to dismiss the Appellant, the penalty of dismissal was reduced to re-instatement plus a transfer to suitable alternative premises and a decision that the final written warning then in place be extended for a twelve-month period. The letter conveying the outcome of that appeal also informed him that any further breaches of the absence policy, whether with regard to certification or notification of absence, may result in further disciplinary action and potential dismissal.
The Appellant, notwithstanding his experience of dismissal and re-instatement on appeal, failed, despite the provision of reasonable support, to improve his attendances and absences. Return to work interviews were conducted with the Appellant following his absences.
The Appellant’s manager, in September 2018, identified to the Appellant in writing that his absences had dramatically exceeded the number of acceptable absences in a rolling twelve month period. Further reviews were conducted and a medical review carried out which confirmed that the Appellant was fit for work.
Further absenteeism ensued and by letter dated 20thFebruary 2019 the Appellant was invited to a formal disciplinary hearing. He was at that time fully aware of the existence of written warnings on his file which were still valid. He was provided with the disciplinary and absence policies.
At that meeting and in subsequent correspondence the Appellant was advised that his level of absence was unacceptable and significantly affected the delivery of service to the clients of the Respondent and his wider team.
A further final written warning issued to the Appellant which was to remain active for a period of twelve months. The letter which issued at that time advised the Appellant that any further absence during the period would be likely to result in further disciplinary action up to and including dismissal. The Appellant continued to incur absences thereafter.
An absence review meeting was convened with the Appellant on 5thJune 2019 and a disciplinary hearing was conducted on 14thJune 2019. The decision to dismiss the Appellant following that meeting was conveyed to him by letter dated 17thJune.
The Appellant appealed that decision by e-mail dated 25thJune and an appeal was conducted. By letter dated 24thJuly 2019 the Appellant was advised that his appeal had not been upheld.
The Appellant was given proper and adequate advance warning, opportunities to improve and appropriate employment supports. The supports provided included medical advices, reviews, counselling and an offer of reduced working hours.
The Respondent acknowledged that it had not been possible to adhere with complete accuracy to the stated disciplinary policies and procedures in the employment but submitted that at no time had these factors been to the prejudice of the Appellant. The Respondent exceeded any and all reasonable obligations of a reasonable employer to the Appellant. Excessive assistance cannot be an appropriate source of criticism of the Respondent’s conduct.
Summary of evidence on behalf of the Respondent
Mr J.J, a manager of the Respondent who did not have a managerial role in respect of the Appellant, gave evidence that he had, on Friday 5thJune 2019, conducted a disciplinary hearing where the sole matter at issue was the absences of the Appellant. He understood that his focus was on the previous 12 months of the Appellant’s employment.
He said that at that meeting the Appellant referred to a complaint of bullying he had made in respect of his employment in the location where he had worked prior to the transfer which followed his dismissal in mid-2018. At the hearing also the Appellant claimed that an event of bullying occurred during the first fifteen minutes following his arrival in his new location following transfer. Mr J.J. subsequently confirmed with HR that no record of a compliant existed in relation to the Appellant’s then current place of employment.
He said that he had considered the undisputed facts of the Appellant’s pattern of absence and the fact that he was on a final written warning arising from absenteeism at the time of the disciplinary hearing. He also considered that the Appellant had tendered no mitigating factors in his defence at the hearing.
He considered the outcome of the meeting on the same day as the hearing and made a decision that the Appellant should be dismissed. He said that he alone had drafted the letter dismissing the Appellant albeit it issued while he was on holidays during the week following the hearing. In those circumstances a colleague had signed the letter on his behalf. He stated that he had received no assistance or advice in coming to his decision to dismiss the Appellant and he had considered whether an alternative penalty might be appropriate. In deciding upon the appropriate penalty he took into account the fact that the Appellant was, at the time, on a final written warning and the fact that the Appellant did not put forward any mitigating factors in his defence.
He confirmed that he did not receive a report of an investigation in relation to the matter of the Appellant’s pattern of absence but stated that he was provided with the factual record of the Appellant’s absences which was not disputed by the Appellant.
Ms A.C., the Appellant’s line manager, gave evidence to the Court. She outlined the working arrangements in place in the employment and in particular that on any working day the Appellant would have a list of appointments. Unplanned absences resulted in other team members having to carry out the Appellant’s appointments.
She said that she had conducted a number of return to work interviews with the Appellant and he had never challenged the fact of his absence pattern. The fact of his absence pattern did not require any investigation to establish.
She said that the sole issue of performance that arose in respect of the Appellant was his level of absence and his failure, despite the provision of extensive supports and numerous communications advising him that he could be subject to disciplinary sanction up to and including dismissal, to improve his attendance.
She said that colleague team members did resent the persistent absences of the Appellant and the consequences in terms of the requirement resting upon them to carry out additional work as a result.
She did, in February 2019, administer a Final Written Warning to the Appellant even though he was already serving such a warning. She said that she was trying to keep the Appellant in employment.
She agreed that she did provide the Appellant with a letter inviting him to a disciplinary hearing during an absence review meeting on 5thJune 2019 and she accepted that the optics of that event were not good.
Summary position of the Appellant
The Appellant accepted as a matter of fact that he had attendance issues throughout his employment. He submitted however that his attendance issues did not affect his work performance and that, as a matter of fact, he had been one of the best performing members of his team.
The Appellant submitted that the process which led to his dismissal is what the Act concerns itself with. He also submitted that the final twelve months of his employment is the crucial time for the purpose of the within appeal.
He submitted that between 31stOctober 2017 and 17thJune 2019 the Respondent had initiated a number of fundamentally flawed disciplinary processes against him in relation to his absenteeism which seemed always to have a pre-determined outcome by way of a Final Written Warning. The Respondent never followed its own procedures or respected the most basic due process and fair procedure.
On 31stOctober 2017 the Appellant received a Final Written Warning without any proper procedure being implemented
On 12thDecember 2017 the Appellant received a second Final Written Warning without any proper procedure being followed
On 14thMay 2018 the Appellant was dismissed from his employment by way of a fundamentally flawed process
On 11thJune 2018 the Appellant, on appeal of his dismissal, received a third Final Written Warning.
On 28thFebruary 2019 the Appellant received a fourth Final Written Warning
On 17thJune 2019 the Appellant was dismissed from his employment and the dismissal was upheld on appeal.
The Appellant submitted that he had attended a disciplinary hearing on 25thFebruary 2019 which had as its stated purpose
“to discuss your continued poor attendance record”
The hearing had, in breach of the Respondent’s disciplinary policy, not been preceded by an investigation and he was not advised in advance as regards any allegations made against him and who his accuser was. He submitted that the person who convened the hearing, Ms AC, was in fact his accuser in that she was his line manager and had conducted all return to work interviews attended by the Appellant since his transfer to a new work location following his successful appeal of a decision to dismiss him.
In her letter conveying the outcome of the February hearing Ms A.C. had used the word ‘we’ and this implied that she was not the sole decision maker in the matter. He submitted that he was a stranger to any other decision maker involved in the matter. In that letter also she had referred to an impact on service delivery arising from the Appellant’s attendance pattern. No such impact had been evidenced and in fact the Appellant was the best performing member of his team.
Ms A.C. had, at that time, imposed a Final Written Warning in addition to a Final Written Warning already in being at that time. The warning issued by Ms A.C. in February 2019 was expressed to remain active for a period of twelve months.
Having regard to the fact that Ms A.C. was accuser, investigator and disciplinarian and was wholly biased as a result of having conducted a series of back to work interviews which were central to the purported disciplinary process, the penalty she imposed could not be relied upon.
The Appellant attended an Absence Review Meeting on 5thJune 2019 wherein, after making four statements, Ms A.C. handed him a letter inviting him to a disciplinary hearing. This demonstrated pre-determination of outcome in respect of the Absence Review meeting.
The Respondent did not conduct an investigation prior to inviting him to a disciplinary hearing in June 2019 but rather the Absence Review Meeting conducted by Ms A.C. amounted to an investigation for the purposes of the Respondent’s disciplinary policy.
He was never told in advance of the disciplinary hearing what the allegations against him were and neither was he advised as to who his accuser was. Neither was he advised in advance that the disciplinary process could result in his dismissal.
The Appellant submitted that he had been notified that a named manger would conduct the disciplinary hearing but in the event another manager, Mr J.J., carried out the disciplinary hearing. He said that Mr J.J. who conducted the hearing stated at the hearing that he would further investigate certain matters which had been raised by the Appellant but that Mr J.J. had not done so and had not reverted to the Appellant. He submitted that the entire disciplinary process was pre-determined.
The disciplinary hearing concluded on 14thJune 2019 and the decision to dismiss was conveyed to the Appellant by letter dated 17thJune 2019. That letter was signed on Mr J.J.’s behalf by Ms AC and this fact alone demonstrated the unfairness of the process.
The Appellant appealed the decision to dismiss him by letter dated 25thJune 2019. He outlined eight grounds of appeal. A hearing took place on 16thJuly and an undated letter received on or about 24thJuly advised the Appellant that his appeal had been unsuccessful. None of the eight grounds of appeal had been upheld.
Against that background the Appellant submitted that the Respondent had failed in its primary duty of ensuring that the decision to dismiss him followed a fair procedure.
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
Discussion and conclusions.
The Court has taken very careful account of the submissions of both parties. The history of this matter includes extensive engagement between the parties as regards the absenteeism, both authorised and unauthorised, of the Appellant throughout his employment. The Court notes in particular that the Respondent repeatedly issued warnings to the Appellant which were described as Final Written Warnings. Each of those warnings related to concerns as regards the absence pattern of the Appellant. On occasion the Appellant was issued with a Final Written Warning during the lifetime of a previously issued Final Written Warning.
The Court can find no basis in the written disciplinary policy of the Respondent for the repeated issuance of overlapping Final Written Warnings to the Appellant. It is self-evident that a coherent application of the comprehensive written disciplinary policy of the respondent requires the execution of the disciplinary steps in the manner described in the policy.
Each of the four Final Written Warnings issued to the Appellant were issued in response to infringements of absence policies. In addition, the Appellant was dismissed in 2018 as a penalty for the same offence and that dismissal was rescinded on appeal.
The Appellant has not disputed the factual matrix of his absence record. He has at all times accepted the record of his absenteeism throughout the period of his employment. Nevertheless, he contends that he was denied the opportunity to confront his ‘accuser’ in the disciplinary processes conducted by the Respondent. He also lays great weight on the lack of clear investigatory processes in each of the disciplinary processes to which he had been subject.
The Court does not accept that in the disciplinary matters put to the Appellant during his employment he faced an ‘accuser’ in any accepted sense of the word. On each occasion the underlying facts of his absences were not disputed by him and no other matter was at issue in any of the disciplinary processes referred to at the hearing of the Court. At the hearing of the Court the Respondent made it plain that it had never disputed the reasons put forward by the Appellant for his various absences albeit some of those absences were unauthorised in that they were not notified to the Respondent in accordance with the absence policy in place in the employment.
The Appellant has asked the Court to accept that his absences had no effect on his performance at work. He contends that he was an excellent performer in the context of his team. The Respondent has not disputed the good performance of the Appellant when he attended for work but contended that the Appellant’s level of absence was not acceptable to a reasonable employer.
The Court cannot accept that an employee could incur extensive absences in his employment without causing an effect on his delivery of service to his employer. In any event, the Respondent has put forward the level of absence as the operative reason for dismissal rather than the operational effect of those absences. The Respondent has additionally submitted that it had made extensive efforts to make the Appellant aware of the unacceptability of his behaviour and had provided supports to the Appellant to assist him in achieving an acceptable level of attendance at work to no avail.
The Court concludes that the fact of the issuance of overlapping Final Written Warnings to the Appellant for the same offence removed from the disciplinary procedure employed by the Respondent any foundation of coherence. Additionally, the practice of repeated issuance of final stage penalties had the effect of creating uncertainty as regards the significance of the disciplinary penalties invoked.
The Court therefore finds that the dismissal of the Appellant was unfair in that process which culminated in the dismissal did not follow in any reasonable fashion the written disciplinary policy of the Respondent.
The Court considers, in all the circumstances of this matter, that compensation is the appropriate form of redress. In determining the amount of compensation which is just and equitable having regard to all the circumstances, the Court has considered the earnings of the Appellant before his dismissal and his relatively infrequent efforts to mitigate the loss he suffered as a result of his dismissal.
The Court has also considered the contribution made by the Appellant to his dismissal. It is clear to the Court that the Appellant was at all times fully aware of the concerns of the Respondent as regards his pattern of attendance at work. The Court has also noted the significant absenteeism rate of the Appellant which included a number of occasions of absence without leave. Having regard to all of these matters the Court has concluded that the Appellant contributed to the extent of 90% to his dismissal.
The Court decides that the complaint of the Appellant is well founded. The Court decides that, in the circumstances of this case, compensation is the appropriate remedy. Having regard to the Appellant’s losses arising from his dismissal, his efforts to mitigate those losses and taking into account the Appellant’s own contribution to his dismissal, the Court determines that the amount of redress which is just and equitable having regard to all the circumstances is €5,400.
The decision of the Adjudication Officer is set aside.
The Court so decides.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.