Absenteeism is a huge concern for employers and it is distinctly possible that an employer may wish to deal with absenteeism via disciplinary procedures. It is therefore very interesting to see how the EAT in two recent cases has issued two very different views on that fairness of dismissing an employee for absenteeism.
Absenteeism: Employer Concerns
Aside from any paid leave considerations, absenteeism can impact productivity and output which can in turn upset customers. In addition, absenteeism leaves a workplace understaffed which can place increased burden and pressure on employers.
A good example of the impact of absenteeism can be found in statistics from the Department of Public Expenditure and Reform which suggest that absenteeism cost the State almost €320 million in 2014. Differing reports would suggest that absenteeism costs employers in the private sector in the region of €500 million to €1 billion per annum.
Disciplinary Processes
It is generally accepted that an employer may legitimately dismiss an employee for excessive absenteeism and that this can extend to both certified and uncertified sickness. This is in line with the Unfair Dismissals Act which specifies that an employer may dismiss an employee based on their conduct (e.g. unauthorised absenteeism) or their capability (e.g. excessive certified absenteeism). The general test for this area was set out by the High Court in Bolger –v- Showerings Limited [1990] where it was stated that an employer can fairly dismiss due to absenteeism where:
- it was the incapacity/capability/absenteeism which was the reason for the dismissal;
- the reason for dismissal was substantial;
- the employee received fair notice that the question of his dismissal was being considered and;
- the employee was afforded an opportunity of a fair hearing.
It is therefore interesting to note two recent decisions of the EAT in this area.
Wall –v- PD Hire Services (UD458/2014)
The EAT decision outlines the background to this case as follows:
- The claimant was employed by the respondent company as a general operative.
- On 01st October 2013, the employee received a written warning for “absenteeism and [a] failure to follow the company’s reporting procedure.”
- “Subsequently, the claimant received a final written warning on 29 October 2013 for a further unauthorised absenteeism and failure to follow the company’s absence reporting procedure.”
- Further absenteeism and a failure to follow reporting procedures resulted in a disciplinary meeting on 06th December 2013.
The EAT ultimately deemed the dismissal unfair because the employee “
faced some significant challenges which … entitled him to reasonable consideration from the [employer]”. It is unclear from the decision what these challenges were but it was noted that the employee’s most recent absence was due to chest pains. The tribunal then stated that it must consider whether or not the history of absenteeism reasonably allowed the employer to treat the most recent absence as “the final straw”. Ultimately, the EAT found against the employer and awarded the employee €6,000 on the basis that “
while an employer might have considered that some sanction was necessary, a reasonable employer would not have applied a sanction of outright dismissal on this occasion.”
It is suggested that this EAT decision seems more than a little harsh on the employer for the following reasons:
- The employee had received a written warning and a final written warning for his absenteeism and presumably he was therefore put on notice that the behaviour was unacceptable.
- If he was on a final warning then, in line with the Bolger case, the employee had received fair notice that the question of his dismissal was being considered.
- The EAT suggests that the employer ought to have considered some alternative sanction. Considering the employee was on a final warning for similar behaviour in the past, it would appear that the employer had previously applied an alternative sanction.
- As the employee was on a final warning, to apply an alternative sanction would render the “finality” of a final warning to be meaningless.
Jerosenko –v- Mid-West Cleaning (UD276/2014)
This EAT decision is from the same year and outlines the background to this case as follows:
- The employee had been dismissed after many absences from work.
- One absence related to a delayed return from holidays due to the employee’s failure to book a return flight as a result of financial difficulties.
- Further absences came as a result of being hit by car whilst cycling, fainting in work, and being hospitalised as a result of falling unconscious at home.
- On one occasion, namely after falling unconscious, the employee had failed to follow absence reporting procedures.
- The employee had a verbal warning, written warning, and two final written warnings on file.
- Ultimately the employee was dismissed.
The EAT in this deemed that the employee had been fairly dismissed because the employer “
had a contract to supply contract cleaning staff to a food store” and because of the employee’s absenteeism “
the store was unhappy with the situation that the work was not been carried out.” The EAT went on to note that the employee had received “
various warnings” and that the employee had ultimately “
frustrated her own contract of employment”.
Conclusions
The two above cases are very interesting in that the EAT’s findings are starkly different in very similar circumstances. In the
Jerosenko case the employee was deemed to be fairly dismissed even though it would appear that this employee had by far the more legitimate reasons for being absent (being hit by a car, fainting, and hospitalisation) when compared to the
Wall case (one cited incident of chest pains). In addition, in
Jerosenko, it seems the employee had only failed to report her absence on one occasion whereas it would seem that the employee in the
Wall case had failed to report his absence on each occasion. As such, all signals would suggest that the employee in the
Wall case possibly deserved to be dismissed moreso than the employee in
Jerosenko.
What these cases do suggest is that each case of dismissal following absenteeism will be assessed against its own facts and employers should tread carefully if wishing to dismiss an employee for excessive absenteeism. This is particularly the case where the employee’s absence potentially realtes to a disability which can also raise equality issues.
Employers are strongly advised to seek advice if faced with any absenteeism issues and if you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
