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Unfair Dismissal claim failed for Employee that went on leave despite having sick cert

In the case of A General Operative v A Bakery the Claimant’s claim of Unfair Dismissal was dismissed by the Adjudicator. The Complainant was employed by the Respondent from 16th January 2008 until his dismissal.

Facts

The Respondent submitted that in or around Friday 27th April 2018 the Complainant’s manager was informed by a colleague that the Complainant did not intend to come to work the following week as he was planning on travelling to Poland for a cosmetic procedure on his teeth.

The Respondent received a sick certificate related to the Complainant on 2nd May 2018 indicating that he had a chest infection. The Respondent maintained that the Complainant was not sick and he had always intended to take the week off without authority or approval. The Respondent having become aware that the Complainant had departed for Poland, emailed the Complainant advising that he was being suspended and that he was invited to a disciplinary investigation for an allegation of gross misconduct upon his return.

A disciplinary hearing was held on 8th May 2018 and the Complainant refused to confirm when he had booked his flights stating that it was his own private business.

Following the disciplinary meeting, the matter was reviewed by another manager. On 10th May 2018 this manager wrote to the Complainant advising that having considered the issue a decision was made to terminate his employment on grounds of gross misconduct where he was deemed to have wilfully and deliberately misrepresented to the company matters in relation to his unauthorised absence from work.

The Complainant did not appeal this decision despite knowing that he had a right to appeal and having previously done so in another disciplinary he was subject to where his sanction was overturned. The Complainant submitted that he did not appeal the decision as he had no trust in the company and instead directed his complaint to the WRC.

Decision

The Adjudicator confirmed that the applicable legal test was the “band of reasonable responses” test as set out in the case of The Governor and the Company of Bank of Ireland v James Reilly in which it was set out that the onus is on the employer to establish that there was substantial grounds for justifying the dismissal.

In respect of fair procedures, the Adjudicator was guided by the Respondents’ disciplinary policy and the requirements in S.I. No. 146/2000- Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

The Adjudicator was satisfied that that the Complainant was afforded fair procedures prior to his dismissal, that his conduct has been a significant factor in leading to his dismissal and that he had no justifiable cause to engage in the Respondent appeal mechanism.

Link: https://www.workplacerelations.ie/en/cases/2019/august/adj-00015338.html

30th August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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