Worker’s Dismissal for Attendance and Punctuality Issues Ruled Unfair

by Greta Siskauskaite, Solicitor, Employment law at Fieldfisher LLP (Ireland)

A Workplace Relations Commission (“WRC”) Adjudicator has awarded a former Supermarket worker (“the Complainant”) compensation of €5,000 under the Unfair Dismissals Act.

In this case (ADJ-00036018), the Complainant was dismissed mainly for poor attendance and punctuality.

Complainant’s position

The Complainant claimed that she did not receive a contract of employment and asserted that she “did not have a notion of how things worked.”  Crucially, she also claimed that, at the time, she had no idea that she was going to be dismissed and she did not think that conversations with the Respondent constituted warnings. The Complainant further asserted that she had been a “hard worker” and that “things should have been handled better”.

Respondent’s position

The Respondent admitted that the Complainant was “very good” at the commencement of her employment. However, it noted that some issues around the Complainant’s attendance and punctuality had arisen. The Respondent also noted that there were other occasions on which the Complainant was allowed to go home early for personal reasons and this impacted the business. Upon considering the impact this caused, the Respondent decided that it could not sustain the Complainant’s employment and dismissed her. Nevertheless, during the WRC hearing, the Respondent accepted that it should have “engaged proper procedures”.

WRC Finding

The Adjudicator held that if the employer believed that the Complainant was regularly late or had to leave early and this was impacting the business, this ought to have been considered through a documented investigation. He held that this was a vital step in justifying an employee’s dismissal.

As a result of the failure to do this, the Adjudicator found there was an unfair dismissal and awarded the Complainant €5,000.

Commentary

While a factually straightforward case, we feel this is a good illustration of general issues of wider application that often arise and are worth bringing to our readers’ attention:

(i) In all unfair dismissal proceedings, there is a presumption from the beginning that the dismissal was unfair. Accordingly, the burden of proof to show that a dismissal was, in fact, fair is always on the employer (except in constructive dismissal cases);

(ii) An employer’s adherence (or lack of) to the minimum standards outlined in the Code of Practice on Grievance and Disciplinary Procedure SI 146/2000 will be considered by the WRC / Labour Court;

(iii) In the absence of a paper trail of a disciplinary process and appeal, it will be difficult for an employer to dislodge the presumption that a dismissal was unfair – regardless of how obvious the underlying substantive issues may be;

(iv) The overall reasonableness of the employer’s conduct in dismissal situations will be taken into account by the WRC. Equally, an employee’s contribution to any dismissal can also be considered;

(v) The employee’s attempts to mitigate their loss will almost always be a factor in assessing any award.

About the author

Greta Siskauskaite specialises in the area of employment law and advises on both contentious and non-contentious employment matters at Fieldfisher LLP (Ireland).

Greta provides both commercial and best practice advice to employers and employees on all matters relating to employment law. This includes bringing/defending claims to the Workplace Relations Commission/Labour Court, advice on contracts and employee handbooks, internal company procedures, discrimination, redundancy and TUPE.

Greta’s experience includes assisting both private and public sector clients.
Greta regularly attends Employment Law Seminars to ensure that she remains up to date on relevant legislative developments.

Greta hold’s a Bachelor of Business and Law Degree from NUIM and a Diploma in Employment Law from the Law Society of Ireland.