Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Employee Absent from Work for over 700 Days Fairly Dismissed
Adjudication Decision Reference: ADJ-00004334
The fact of dismissal was not in dispute. The Complainant was dismissed on two grounds. The first was persistent irregular attendance and the second was failure to adhere to the respondent’s procedure in relation to engaging with on-going management of his absence and in particular the occupational health service (OHS) when required by the Respondent to do so.
In relation to the Complainant’s attendance at work he had a very substantial pattern of absence due to illness. The total number of incidents was forty seven; twenty five of which were certified. The total number of days missed was seven hundred and six. His attendance was described as ‘intermittent, non-committal and unsatisfactory’.
Prior to his dismissal a total of eight review meetings took place to review the Complainant’s capacity to work. This took place under the company’s ‘Attendance Support Management Process’ (ASMP) The Complainant failed to attend eight out of twelve occupational health appointments.
The Complainant stated that he was experiencing acute psychological difficulties which, while the cause of his absences were also a contributory factor in why he could not face the engagement with the OHS. The Complainant argued that where a mental health condition may be present an active obligation fell on the Employer to establish this and as part of his non-attendance at the OHP review meetings
In determination of its decision, the Adjudication Officer found that the Respondent had acted with considerable patience, the procedures which it has followed were appropriate, and given the fact that the grounds of the dismissal were due to the incapacity of the Complainant, the dismissal was fair.
Employee illness or injury related absences from the workplace can and does present a significant challenge for Employers. Employer frustration with persistent and / or intermittent absences is not surprising. Colleague who are required to pick up any additional workload become disgruntled.
As was noted in the Adjudicators decision, there is no legal obligation on an Employer to continue to employ a person who is no longer capable to carry out the role for which they are employed to do. However, any decision to dismiss should not be done so without careful consideration of all of the facts, including obtaining of up to date medical guidance, advising the Employee their employment is at risk and consideration of any reasonable accommodations or alternatives which could facilitate the Employee returning to and remaining at work.
Poor Attendance Record and Failure to Declare Convictions
Leads to Employee Dismissal
Adjudication Decision Reference: ADJ-00002673
The Complainant was employed as a Health Care Assistant for a Health service provider prior to her dismissal. The Respondent denied that the Complainant has been unfairly dismissed, stated that it had fully respected her rights and entitlements in effecting the dismissal and advised that the Complainant was dismissed for 2 reasons, namely:
At the hearing it was submitted that the Complainant had 629 calendar days sick leave between April 2006 and May 2010, at which stage she went on maternity leave. The Complainant was due to return to work in November 2010. However, she did not return to work and was dismissed by the Chief Officer in November 2015.
The Respondent submitted a copy of the Final Report of the Investigation Team which concluded that her attendance pattern was unacceptable and that she had failed to disclose previous charges and convictions.
In relation to attendance/absence the Complainant acknowledged that her attendance had been poor. She advised that she had had 2 miscarriages and a pregnancy and suffered from post-natal depression.
Prior to the end of her maternity leave she requested specific hours that were not available within her workplace at that time. Management had contacted other services to ascertain if she could be accommodated elsewhere, but no alternative suitable to the Complainant could be found.
In relation to the issue of Garda Clearance, the Complainant advised that when she committed the offences she was young and foolish. She understood that these had been dealt with my two members of management. She had not realised the convictions would stay on her record for a lifetime.
Given all of the circumstances and facts, the Adjudication Officer found that the Respondent had acted reasonably and therefore had not unfairly dismissed the Complainant from employment. In determination of its decision, the Adjudicating Officer was completely satisfied that the Respondent had made genuine efforts to facilitate the Complainant’s request to change her hours of work following completion of her maternity leave which had included contacting other services, but no viable options had been identified .
Given the Respondent’s failure to disclose her previous conviction, the Adjudication Officer found it reasonable for the Employer to have questioned their continued trust and confidence in her.
Similar to the previous case outlined, the Respondent’s failure to provide regular uninterrupted attendance at work and failure to ‘perform the requirements of her role’ was found to be a justifiable reason for the termination of the individual’s employment with the Organisation. Having followed a detailed investigation process, followed by a disciplinary hearing in which the serious concerns / allegations were put to the Employee, which included consideration of all other possible options except dismissal, the complaint was not upheld.
Adjudication Decision Reference: ADJ-00004334
The fact of dismissal was not in dispute. The Complainant was dismissed on two grounds. The first was persistent irregular attendance and the second was failure to adhere to the respondent’s procedure in relation to engaging with on-going management of his absence and in particular the occupational health service (OHS) when required by the Respondent to do so.
In relation to the Complainant’s attendance at work he had a very substantial pattern of absence due to illness. The total number of incidents was forty seven; twenty five of which were certified. The total number of days missed was seven hundred and six. His attendance was described as ‘intermittent, non-committal and unsatisfactory’.
Prior to his dismissal a total of eight review meetings took place to review the Complainant’s capacity to work. This took place under the company’s ‘Attendance Support Management Process’ (ASMP) The Complainant failed to attend eight out of twelve occupational health appointments.
The Complainant stated that he was experiencing acute psychological difficulties which, while the cause of his absences were also a contributory factor in why he could not face the engagement with the OHS. The Complainant argued that where a mental health condition may be present an active obligation fell on the Employer to establish this and as part of his non-attendance at the OHP review meetings
In determination of its decision, the Adjudication Officer found that the Respondent had acted with considerable patience, the procedures which it has followed were appropriate, and given the fact that the grounds of the dismissal were due to the incapacity of the Complainant, the dismissal was fair.
Employee illness or injury related absences from the workplace can and does present a significant challenge for Employers. Employer frustration with persistent and / or intermittent absences is not surprising. Colleague who are required to pick up any additional workload become disgruntled.
As was noted in the Adjudicators decision, there is no legal obligation on an Employer to continue to employ a person who is no longer capable to carry out the role for which they are employed to do. However, any decision to dismiss should not be done so without careful consideration of all of the facts, including obtaining of up to date medical guidance, advising the Employee their employment is at risk and consideration of any reasonable accommodations or alternatives which could facilitate the Employee returning to and remaining at work.
Poor Attendance Record and Failure to Declare Convictions
Leads to Employee Dismissal
Adjudication Decision Reference: ADJ-00002673
The Complainant was employed as a Health Care Assistant for a Health service provider prior to her dismissal. The Respondent denied that the Complainant has been unfairly dismissed, stated that it had fully respected her rights and entitlements in effecting the dismissal and advised that the Complainant was dismissed for 2 reasons, namely:
- Her poor attendance record
- Her failure to declare convictions to the Employer on a Garda Vetting Form
At the hearing it was submitted that the Complainant had 629 calendar days sick leave between April 2006 and May 2010, at which stage she went on maternity leave. The Complainant was due to return to work in November 2010. However, she did not return to work and was dismissed by the Chief Officer in November 2015.
The Respondent submitted a copy of the Final Report of the Investigation Team which concluded that her attendance pattern was unacceptable and that she had failed to disclose previous charges and convictions.
In relation to attendance/absence the Complainant acknowledged that her attendance had been poor. She advised that she had had 2 miscarriages and a pregnancy and suffered from post-natal depression.
Prior to the end of her maternity leave she requested specific hours that were not available within her workplace at that time. Management had contacted other services to ascertain if she could be accommodated elsewhere, but no alternative suitable to the Complainant could be found.
In relation to the issue of Garda Clearance, the Complainant advised that when she committed the offences she was young and foolish. She understood that these had been dealt with my two members of management. She had not realised the convictions would stay on her record for a lifetime.
Given all of the circumstances and facts, the Adjudication Officer found that the Respondent had acted reasonably and therefore had not unfairly dismissed the Complainant from employment. In determination of its decision, the Adjudicating Officer was completely satisfied that the Respondent had made genuine efforts to facilitate the Complainant’s request to change her hours of work following completion of her maternity leave which had included contacting other services, but no viable options had been identified .
Given the Respondent’s failure to disclose her previous conviction, the Adjudication Officer found it reasonable for the Employer to have questioned their continued trust and confidence in her.
Similar to the previous case outlined, the Respondent’s failure to provide regular uninterrupted attendance at work and failure to ‘perform the requirements of her role’ was found to be a justifiable reason for the termination of the individual’s employment with the Organisation. Having followed a detailed investigation process, followed by a disciplinary hearing in which the serious concerns / allegations were put to the Employee, which included consideration of all other possible options except dismissal, the complaint was not upheld.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
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- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
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