by Anne O’Connell, Founder and Principal at AOC Solicitors
In the recent Unfair Dismissal case of Seetec Employment and Skills Ireland DAC v Stephen Redmond, UD2122, the Complainant had appealed the decision of the WRC to the Labour Court as he was found to have been fairly dismissed by the WRC.
The Complainant was employed by the Respondent organisation on 10th October 2016 as an employment advisor. In this role he provided support to people referred to the Job-path programme by the Department of Employment Affairs and Social Protection. The Complainant was dismissed on 17th June 2019 because on 11 separate occasions over the previous 12 months, a total of 25 days, he was absent without leave or permission.
Adjudication Officer Catherine Byrne concluded that the decision of the Respondent to dismiss the Complainant in this case was reasonable as the level of absenteeism placed an unnecessary administrative burden on the Respondent and concluded that the process was fair. Therefore, the complaint of unfair dismissal was not well-founded and failed.
The Complainant appealed the decision of the WRC to the Labour Court submitting that between 31st October 2017 and 17th June 2019 the Respondent had initiated a number of fundamentally flawed disciplinary processes against him in relation to his absenteeism which seemed always to have a pre-determined outcome by way of a Final Written Warning. The Complainant was issued with a total of four Final Written Warnings before he was dismissed. The Complainant argued that the Respondent never followed its own procedures or respected the most basic due process and fair procedure.
The Complainant was issued with his fourth and final written warning on 25th February 2019. The Complainant submitted that the hearing took place without a preceding investigation and he was not advised in advance as regards any allegations made against him and who his accuser was. The Complainant submitted that it was in fact his line manager and accuser, Ms AC that conducted the disciplinary hearing, whom had also conducted all his return to work interviews attended by the Complainant since his transfer to a new work location following a successful appeal of a decision to dismiss him.
The Court concluded that the fact of the issuance of overlapping Final Written Warnings to the Complainant for the same offence which was not provided for in the Respondent’s disciplinary procedure was employed without “any foundation of coherence”. The Court also commented that the practice of repeated issuance of final stage penalties had the effect of creating uncertainty as regards the significance of the disciplinary penalties invoked.
In light of this, the Court concluded that the dismissal of the Complainant was unfair in circumstances where the process of dismissal did not follow in any reasonable way the written disciplinary policy of the Respondent. The Court also considered the contribution made by the Complainant to his dismissal. It was clear to the Court that the Complainant was at all times fully aware of the concerns of the Respondent as regards his pattern of attendance at work. The Court also noted the significant absenteeism rate of the Complainant which included a number of occasions of absence without leave. The Court therefore concluded that having regard to this the Complainant contributed 90% to the extent of his dismissal. The Complainant was awarded €5,400 taking into account his financial loss, the contribution to his dismissal and his efforts to mitigate his loss.
Takeaway for the Employers
Employers must ensure that when disciplining employees that they follow their written disciplinary policy at all times. Employers should also ensure that disciplinary sanctions are proportionate to the action and not, as in the above case, giving a number of serious disciplinary sanctions a number of times and thus creating uncertainty to the significance of the sanctions invoked.
About the author
Qualified as a Solicitor in 2001 and as a New York Attorney, Anne O’Connell, the Founder and Principal of AOC Solicitors, specializes in Employment Law. She holds an LLB Degree together with Diplomas in Employment Law and International Litigation and has practiced with the Chief State Solicitors Office and two top tier Irish Law Firms. Anne has acted in the largest international case taken by Ireland to date and also acted in a European case that led to the amendment to Ireland’s Constitution. Anne advises large multinational companies, semi-state companies, small businesses and employees in all areas of employment law, particularly issues that were likely to become contentious.
With over 19 years of employment law experience, Anne formed her own specialist boutique Employment Law Firm in 2017 and thus Anne O’Connell Solicitors was born.
Anne is very passionate about what she does and becomes vested in finding solution to her client’s issues.