Buinenko v Lidl Ireland Gmbh Lidl Head Office ADJ-00033871, concerned a complaint under...

Buinenko v Lidl Ireland Gmbh Lidl Head Office ADJ-00033871, concerned a complaint under the Unfair Dismissals Acts 1977-2015. The Complainant alleged that he was unfairly dismissed for taking sick leave, that he was legitimately sick and had adhered to the policies and procedures set out in the employee handbook. The Respondent argued that the Complainant was dismissed for gross misconduct due to 69 sick leave absences and having left early on 10 occasions, as well as taking unauthorised prolonged breaks on 13 occasions.

Facts:

The Complainant was employed by the Respondent from September 2010 until his dismissal in June 2021. He had been off on certified medical leave on 69 occasions due to being in hospital for treatment of hip and back pain. However, the Complainant complied with the terms and conditions set out in the employee handbook which stated that all sick leave must be supported by a medical certificate. The Respondent claimed that the Complainant’s absence caused serious disruptions to the productivity of the company and that other employees were forced to work extra hours due to the absences. In May 2021, the Respondent began an investigation into what it described as an “alleged pattern of unreliable attendances” over a 16-month period. An investigation report concluded that there was alleged gross misconduct, and a disciplinary process was commenced. The Complainant was dismissed on the basis that he “….had breached company procedures and was unable to provide a valid reason for his repeated failure to attend work or for leaving work on multiple occasions” and that his actions were “willingly disruptive”.

However, on cross examination, the witness for the Respondent admitted that the absences had been authorised and were supported by medical certificates in compliance with the Respondent’s sick leave policies. He also acknowledged that specific dates were not provided to the Complainant in relation to each of the incidents, and at no stage was the Complainant referred for an occupational health assessment. The witness was unable to give a reason for this.

The Complainant emphasised that there is no sanction in the Respondent’s handbook for taking “excessive sick leave” and that having an illness should not be a disciplinary matter. However, he did accept that the Respondent was entitled to review his attendance where this was causing production issues and affected the daily functions of the business. He also accepted that the Respondent assisted him by allocating different duties to him.

Decision:

The Adjudicator, Anne McElduff, was satisfied that “overall” fair procedures were followed by the Respondent during the disciplinary process. However, the Adjudicator found that in relation to the allegations and findings against the Complainant regarding a “pattern of unreliability”, “poor attendance”, “excessive disruption”, and “breach of ‘Company procedures and rules”, the Complainant was entitled to be appraised in specific terms as to the reasons for the allegations/findings. The Adjudicator was critical that the Respondent did not provide specific dates and details in relation to each of the incidents, but only provided the Complainant with the total number of sick leave absences and the total number of occasions on which the Complainant allegedly left work early and on which he allegedly left without authorisation. She was also not satisfied that the return to work meetings were “sufficiently particular or detailed” to ground the allegations and findings resulting in the Complainant’s dismissal. By not providing the Complainant with the exact dates of the incidents, the Complainant was unable to properly respond to the allegations.

Furthermore, the Adjudicator found that it was unreasonable for the Respondent to include the Complainant’s sick leave as a basis for its findings of poor attendance, disruption and unreliability. She accepted that the Complainant had taken a significant amount of sick leave and that sick leave absences can cause disruption for any employer. However, she noted that the Respondent accepted that the Complainant’s sick leave was certified and that he complied with its sick leave policy. The Adjudicator noted that it was at all times open to the Respondent to refer the Complainant for an Occupational Health Assessment.

“There is no doubt that absences on the part of any employee including for sick leave can cause disruption in the workplace which is a legitimate concern for any employer. However, the availability of sick leave when required, was part and parcel of the Complainant’s terms and conditions of employment. In all the circumstances I consider that the Respondent should firstly have referred the Complainant for an Occupational Health Assessment and thereafter the Respondent should have engaged with the Complainant and/or his GP in respect of the outcome of any such assessment – prior to any consideration of disciplinary action – let alone dismissal – arising from the taking of sick leave.”

The Adjudicator also accepted the Complainant’s evidence that he informed his line manager when he was leaving work early.

The Adjudicator upheld the Complainant’s unfair dismissal complaint and awarded him €16,000 in compensation for the financial losses suffered.

Takeaway for Employers:

This case highlights the importance of exercising caution in addressing absence issues with an employee whose absences are medically certified. Where an employee has taken significant certified sick leave, an employer ought to arrange for an occupational health assessment in order to ascertain the most appropriate manner in which to address such absences with the employee. The importance of engaging with Occupational Health in appropriate cases was also highlighted in another WRC decision of the same date (ADJ-00027984) which also features in our newsletter.

Link  - https://www.workplacerelations.ie/en/cases/2023/october/adj-00033871.html

Authors – Susan Coyle, Jenny Wakely, Anne O’Connell