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WRC Upholds Dismissal of an Employee done in his absence, without his knowledge and while abroad, Upheld.

Facts
The WRC has upheld an Employer’s decision to dismiss an employee for what was described as a repeated and deliberate failure to comply with correct attendance procedures. The decision to initiate the disciplinary procedure and ultimately dismiss the employee was taken in his absence, without his knowledge and while he was abroad. The employee alleged that he had been unfairly dismissed.

Background
The claimant was dismissed in August 2017 following a long track record of non-attendance at work. The claimant had previously been employed by the respondent between 2002 and 2009 during which time his employment was brought to an end due to poor attendance. The claimant approached the respondent two years later in 2011 expressing regret over losing his job and requested that the respondent re-employ him. The respondent agreed to re-employ him on the condition that he would attend work in future.

Despite the claimant’s promise to adhere to the respondent’s attendance policy he was again issued with a warning for poor performance in November 2013, May 2016, January 2017 and finally a written warning on 13th June 2017.

Mother-in-law’s Funeral / Mechanical Failures

Despite the written warning of the 13th June 2017, the claimant texted his manager at 05.38 hours on 17th July 2017 notifying him that he would be flying to Moldova that very same morning at 07.00 a.m. and requested that the manager “cover him”. The claimant stated that he had to fly to Moldova that morning to attend his mother-in-law’s funeral.

However, the claimant later claimed that his car broke down on the way to the airport and he missed his flight. The claimant did not fly to Moldova for a further two days until the 20th July 2017 following his mechanical set back. The respondent repeatedly attempted to contact the claimant by telephone and also sent a series of letters, by hand delivery to the claimant’s address on 18th, 20th and 24th July 2017. The claimant although still in Ireland as a result of his alleged mechanical failure chose to ignore the respondent’s attempts to contact him and effectively went “to ground”.

The claimant was informed by letter dated 28th July 2017 that a disciplinary hearing was to be held in view of his poor attendance. The claimant was at this time in Moldova when the disciplinary action was taken and the claimant’s employment was ultimately terminated on 1st August 2017. The respondent did offer an appeal but this was not availed of.

The central question asked by the Adjudicator was, how can a dismissal then be considered fair or in keeping with natural justice in the claimant’s absence?

Conclusion

The Adjudicator considered whether or not the Dismissal which took place while the Claimant was in absentia in Moldova could be upheld. In summary the Adjudicator looked at the following;

(a) The case was looked at in its overall context, taking into account the verbal and written warnings that the claimant had been given,
(b) The Adjudicator also took into account that the claimant chose to ignore the respondent in circumstances where he did not actually fly to Moldova until the 20th July 2017 having told the respondent that he had flown to Moldova on the 17th July 2017,
(c) The claimant returned to Ireland on 9th August 2017 and did not make contact with the respondent, nor did he avail of the appeal offered. The first time the claimant made contact was by way of solicitors’ letter on 13th September 2017,
(d) The claimant was fully aware of the consequences of his actions and the impact that they could have on his employment,

The fact that the claimant was absent when the decision to dismiss was made, was looked at in the overall context of the above matters. The Adjudicator also reiterated the established principle that it is not the function of the Workplace Relations Commission to substitute its view for the employers’ view. The Adjudicator noted that a band of reasonableness should be applied as outlined in British Leyland UK Ltd -v- Swift wherein Lord Denning MR stated that the question that an employer should put to themselves prior to a dismissal, was as follows; “was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair”.

In relation to procedural defects arising in the course of the dismissal the Adjudicator stated that the claimant’s absence raised a procedural issue only, which the Adjudicator stated may be outweighed by “clear evidence of serious matters authored by one of the parties”. In this case, absence amounting to gross misconduct. The dismissal was deemed to be fair and the claim for unfair dismissal failed.

Link
For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
30th August 2017

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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