This is an Appeal of an Adjudication Officer’s Decision No: ADJ-00007192 CA-00009679-001 case reference UDD 1973 Labour Court.
The Labour Court has upheld the dismissal of a former Dublin City Council employee for persistent and excessive absence. The employee commenced employment with the employer as a Waste Management Operative from May 2007 and was dismissed in December 2016.
- July 2008 formal warning for 7 unauthorised absences.
- 2nd April 2009 written warning for 14 days certified sick leave and one day uncertified.
- 26th May 2009 he was removed from the sick pay scheme for twelve months for alleged abuse of the uncertified sick pay scheme.
- 1st June 2010 exclusion from the sick pay scheme extended for a further twelve months.
- 23rd July 2010 final written warning to expire after twelve months for late arrival into work and intermittent absences.
- 1st September 2011 final written warning to expire after twelve months for sick leave absences.
- April 2012 to March 2014 it was noted that there was an improvement in his absence record. He had seven days absence in first 12 months and 12 days in second. He became a father on 23rd October 2012 and had an injury at work in March 2013 for which he did not take any sick leave.
- 19th August 2014 final written warning to expire after twelve months for two weeks certified sick leave in May 2014 and one week certified at end of July 2014.
- 5th March 2015 final written warning to expire after twelve months for 21 days sick leave since August 2014.
- 24th March 2016 final written warning to expire after twelve months plus 2 days suspension due to 12 days certified sick leave in 2015 [25 days at end of January/beginning of February 2016 disregarded as arose from accident at work], this warning was appealed however it was unsuccessful.
- 7th September 2016 placed on paid special leave, referred to Corporate Health Ireland for assessment due to 17 days absence from April 2016.
- 11th October 2016, he was informed that his employment would be terminated from 24th October 2016 due to his unsatisfactory attendance record throughout his employment.
- Appeal hearing 24th November 2016 where the employee was unsuccessful.
- 2nd December 2016 the employee’s employment terminated.
This case highlights that persistent absence from work, whether certified or not, may be a justifiable reason for dismissal.
The employee endeavored to argue the following defence:
He stated that the decision to dismiss was disproportionate and the procedureally flawed for a number of reasons, including the following:
- The absences were genuine and certified.
- The employer had undue regard to prior warnings whereas the purpose of time limits on warnings are to give the employee “a clean slate” once an improvement has been achieved and should be disregarded thereafter.
- The employer had failed to adequately direct him to Staff Support Services with a view to addressing any of the underlying issues which may have caused his absenteeism.
- The decision to impose a final written warning was disproportionate when account was taken of the average absenteeism level of the public service; and
- There were other steps and alternatives to dismissal available to the employer to address the issue.
The employer response was:
The employee’s continuous absenteeism during the period of April 2016 to October 2016 constituted “a failure to provide the Council with regular and efficient service”.
They rejected any claim that the decision to dismiss was proportionate in circumstances where, despite repeated warnings, the employee failed to take appropriate steps to tackle his absenteeism.
The employer argued that it had acted appropriately and professionally by referring the employee for independent medical assessment to rule out any medical or other issues that might have required reasonable accommodation. The employee had been interviewed on three occasions in 2016 but gave no personal, medical or other mitigation reasons for his absences. It went on to state that had been referred him to Staff Support Services for assistance back in 2012 but denied any medical issues or need for support in 2016.
The employee had a history of warnings, five “final” written warnings. The decision to dismiss however was based on the 17 days of absence between 26th of April and 11th of October 2016, while the employee under an active final written warning and had been made aware that any further breach would result in his dismissal.
Labour Court’s decision
The Court stated that it was not tasked with deciding whether or not the correct decision was made nor whether the Court would have made the same decision, rather the Court’s role was to determine if the decision to dismiss fell within the ‘band of reasonableness’, i.e. would a reasonable employer have dismissed the employee in the circumstances.
In assessing the reasonableness of the WRC’s decision, the Labour Court had particular regard to the following factors:
- the Council operated a clear disciplinary policy;
- the level of absenteeism was unacceptable and, if repeated widely within the Council, would have been wholly unsustainable.
- the employee had been afforded adequate opportunities to improve his attendance record in the past and provided with relevant supports (where needed);
- the employee was made aware of the consequences of failing to improve attendance and received sufficient warnings in advance of the dismissal; and
- the employee was represented at meetings by his trade union representative and afforded (and exercised) a right of appeal.
The employee’s appeal was dismissed, and the decision of the WRC upheld as the Court:
The Respondent, having done all that was reasonably possible to explore the reasons for the continued absenteeism and having taken a series of progressive, measured and appropriate steps to reverse it, reasonably formed the view that it had run out of options and that no further action could reasonably have been deployed in the circumstances to secure the Complainant’s regular and efficient service.
Steps to consider before taking any action:
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