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Unfair Dismissal

Persistent Short Term Absences-Labour Court Approves Dismissal

the labour court

This dismissal involved an employee of a waste company.

The employee was employed from 2007 and had received warnings over the years about time-keeping, absenteeism, and abuse of the sick pay scheme in the workplace.

He was dismissed in December 2016 by reason of his sick leave record that year. He had 17 days of sick leave between April and October of 2016.

WRC

The employee brought a claim to the WRC who held that the dismissal was not unfair, given the circumstances and his record.

He appealed the decision to the Labour Court and made a number of arguments:

  1. The decision to fire him was excessive and disproportionate
  2. The procedure followed by the employer was flawed
  3. The employer had not discharged an alleged responsibility to direct him to an employee assistance programme to help investigate any underlying issues that were causing his absences
  4. The employer placed too much weight on prior warnings for absences
  5. All his absences were certified with medical certificates
  6. The employer should have looked at other courses of action short of dismissal
  7. His absence record compared favourably to the record of employees in the public service

The employer’s position was that fair procedure was followed, the employee had trade union representation every step of the way, and the decision to terminate was a reasonable and justified one given his record.

It also pointed out that the employer referred him for independent medical examination and to staff support services. The employee had never indicated any need for support or medical issues that would have caused his poor record.

The employer denied the decision to fire him was based on previous warnings but based on his record between April and October in 2016 and the fact that he had a live written warning on his file at this time.

Moreover, the employer argued that previous warnings, even if they had expired off his file, were relevant as they led the employer to reasonably believe the poor absence record would persist.

Labour Court

The Labour Court pointed out that its job was not to decide whether the decision of the employer was right or wrong; the Labour Court had to decide whether the decision was a reasonable one-that is, did it fall within a band of reasonable responses from an employer.

The Labour Court decided it did fall within this band and therefore the dismissal was upheld.

The factors considered by the Labour Court were:

  • The employee had representation from his trade union representative and had a right to appeal
  • The employee was given many opportunities to remedy his attendance record
  • He received many warnings and was clear that termination could follow if he did not improve
  • The level of absenteeism was unsustainable if replicated across the entire workforce of the employer
  • The disciplinary policy of the employer was clear

The Labour Court held:

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. The fact that he was afforded opportunities to appeal each outcome of the disciplinary process, including the decision to dismiss, strengthens the Court’s view in this regard. Furthermore, in the circumstances of the case, the Court is satisfied that the decision to dismiss falls within the definition of a ‘band of reasonableness’.

Takeaway

There are two things I take away from this decision:

  1. If the employer takes a decision that falls within a band of reasonableness the Labour Court or WRC will not step into the shoes of the employer and decide whether a decision was right or wrong
  2. The disciplinary procedure does not have to be perfect; provided it is fair it will almost certainly be adequate and acceptable.