The recent Workplace Relations Commission (“WRC”) case of Kamil Goljanek v Lidl Ireland Gmbh ADJ-0037483 contains an interesting set of facts and examines the extent to which an employer is expected to make reasonable and genuine efforts to contact an employee who is absent from work and not engaging in an investigation or disciplinary process.
Facts: The Complainant lodged a complaint with the WRC under the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) claiming that he was unfairly dismissed. He also submitted a complaint in relation to the Respondent’s failure to give him notice or payment in lieu of notice as provided for under the Minimum Notice and Terms of Employment Acts 1973 – 2005 (the “1973 – 2005 Acts”). It was the Respondent’s position that the Complainant commenced a period of unauthorised absence from 19th May 2021 which was unexplained. They initiated disciplinary proceedings against the Complainant, who did not participate in the process or respond to any of the Respondent’s communications. These communications were sent to the Complainant by email only. Evidence was given on behalf of the Respondent regarding its correspondence to with the Complainant relating to his absence and regarding the investigation and disciplinary process which the Complainant had not engaged in. The decision to dismiss the Complainant was made by Mr. Darren Devine, the Respondent’s Sales Operations Manager. Mr. Devine gave evidence on the procedures followed in the investigation and disciplinary stages and on what he described as exhaustive efforts made to engage the Complainant in the process. The Complainant was ultimately dismissed with effect from 27th August 2021. The Respondent kept the Complainant on payroll for several months after this date due to an administrative error. In relation to the Minimum Notice claim, the Respondent claimed that as the Complainant was dismissed for gross misconduct he was not entitled to minimum notice.
The Complainant was unrepresented and gave evidence on affirmation that he had followed the Complainant’s absence procedure and had given medical certificates to a colleague to be submitted to the Respondent for two months. He was very depressed when the communications concerning the disciplinary process were sent. He was disengaged and was not monitoring his work email. He was completely unaware of the disciplinary proceedings, and this was the reason he did not engage in any way with the process. He argued that if he had received the communications in hard copy, he would have read them. On a previous occasion in March 2020, when the Complainant had been subjected to the disciplinary procedure, the Complainant gave evidence that the Respondent had sent all the relevant notifications to him in hard copy by hand delivery; this time was different and he had received nothing in hard copy. He claimed that the use of email was unusual and was not the usual method of communication in the Respondent organisation. The Complainant gave evidence that he only became aware that there was an issue with his employment when his remuneration stopped.
The Complainant had two supporting witnesses who gave evidence, Mr. Obigraf Daskalov and Ms. Anna Seredyn. Mr Daskalov was a Store Manager employed by the Respondent for 15 years and gave evidence that email was not the Respondent’s usual means of communication with employees. He also gave evidence about the Respondent’s usual absence management procedure which was different from the approach adopted in this case. He accepted in cross-examination that he did not leave the Respondent’s employment on good terms. Ms. Seredyn was employed in the same store as the Complainant as Deputy Store Manager and confirmed that she did receive sealed envelopes from the Complainant and understood them to contain medical certificates. Ms. Seredyn gave evidence that she told the Store Operations Manager about the certificates and he instructed her to not send them to HR, but to leave them in a locked box called the SOM box. Ms. Seredyn’s evidence was not accepted by the Respondent, but they accepted that they did have a medical certificate for the Complainant on file covering the period from 8th to 14th April 2021. The Respondent pointed out that the certificate only said he was unfit due to a medical condition and as such they were not on notice he was suffering from depression.
Decision: The Adjudicator, Michael MacNamee, held that the Respondent employer had not acted as a reasonable employer would have acted in the circumstances. He referred to the “Band of Reasonableness” test which was endorsed in Ireland in AIB v. Purcell [2012] 23 ELR 189 and Bank of Ireland v. Reilly [2015] IEHC 241. Importantly, the Respondent employer was aware that the Complainant was sick from the April medical certificate on file. They were on notice of his sick leave and in light of this, the Adjudicator was not satisfied that sufficient efforts had been made to contact him during the investigation and disciplinary process. The Adjudicator noted that in normal circumstances “one would fully expect that an employee absent for a lengthy period on sick leave would be anxious to monitor any communications from his employer” and that in normal circumstances “it would be most unlikely that email communications would not be read when sent and received.” However, on the balance of probabilities, the Adjudicator accepted the evidence of the Complainant that he was severely depressed and was not reading his emails during that time. The Adjudicator was struck by the Complainant’s frankness and candour in his evidence where he stated he did not want to live anymore during that time. He also noted the absence of a log or record of any calls made to or received from the Complainant regarding his general health and welfare or regarding the investigation and disciplinary processes.
The Adjudicator also found that the investigation was undermined by the fact that the investigation report made no reference whatsoever to the fact that at least one medical certificate, the certificate covering 8th to 14th April 2021, had been received from the Complainant.
“I find that the failure to mention this certificate undermines the reliability and accuracy of the investigation report and the formulation of the reasons for the case to answer, which appear at its conclusion…As the Complainant did not attend the disciplinary hearing, it follows that the decision to dismiss turned primarily on the investigation report and it is noteworthy that the formulations which formed the basis of the case to answer in that report are replicated in the disciplinary outcome letter of the 27th of August 2021.”
The Adjudicator held that the dismissal was unfair and awarded compensation of €16,000. In awarding this sum, the Adjudicator had regard to the fact that loss sustained while the Complainant was unfit to work were not “attributable to the dismissal” and could not therefore be recovered as compensation for unfair dismissal. He also took into consideration the fact that the Complainant had made limited attempts to mitigate his loss for several months, but was very unwell during the period in question.
In relation to the Complainant’s Minimum Notice claim, the Adjudicator assessed compensation for breach of the 1973 – 2005 Acts as nil because the Complainant remained on payroll for several months due to the administrative error, receiving his full salary for at least a month and probably more following his dismissal.
Takeaway for Employers: This case highlights the importance of ensuring that reasonable efforts are made to contact an absent employee both to ensure his or her general wellbeing, and to ensure that adequate notification is given in the context of a disciplinary process. This is particularly the case where, as here, an employer is on notice that an employee is unwell. The Respondent in this case was unable to show a call log of any attempts made to call the Complainant or any record of correspondence being issued in hard copy. They had relied solely on email in circumstances where evidence was given that emails were rarely used by the Respondent in communicating with its employees.
Employers need to ensure that they are consistent in following their absence management processes and that they can demonstrate that they genuinely tried to make contact with an absent employee. While this case concerned dismissal for gross misconduct, the same would apply to a situation where an employer intends to treat an employee’s absence and lack of engagement as demonstrating that the employee has resigned from his or her employment.
Link – https://www.workplacerelations.ie/en/cases/2023/april/adj-00037483.html
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
28th April 2023
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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