Under Irish employment law, all dismissals are automatically assumed to be unfair and there is an onus on an employer to rebut this presumption. In three recent decisions, the Labour Court has found in favour of the employer and provided useful guidance to employers when it comes to managing absence-related dismissals. The cases determined were Dublin City Council v Stephen Maguire, Dunnes Stores v Kati Kipli and Keelings Logistics Solutions v Alandas Kepenis.

What Happened?

While each of the above cases related to prolonged sick leave or health and safety issues on the part of the relevant employee, the common theme across all cases was a challenge against the employee’s ultimate dismissal. Significantly, the Labour Court determined in each case that the employers’ decision to dismiss in the particular factual circumstances was within the range of reasonable responses open to that employer.

• In Maguire, Mr Maguire had been employed by Dublin City Council for over nine years and had a track record of unapproved and uncertified leave throughout his tenure. He was dismissed in 2016 and challenged his dismissal as unfair. The Adjudication Officer (AO) held in favour of the Council.
• In Kipli, Ms Kipli was a part-time employee of Dunnes Stores for eight years. Ms Kipli taught belly-dancing classes in her spare time. In 2016, Ms Kipli called in sick to work but, following an investigation, was found to have conducted a class while on sick leave. Ms Kipli challenged her dismissal, but the AO held in favour of Dunnes Stores.
• In Kepenis, Mr Kepenis was a warehouse operator for Keelings for five years. In 2015 Mr Kepenis was involved in a forklift accident with a colleague. Following an investigation and disciplinary process, it was found that Mr Kepenis had breached health and safety policies and was dismissed. He challenged this dismissal as unfair and the AO found in favour of Keelings. 

The key focus of the Labour Court in each case whether the employers adhered to their own disciplinary policies and afforded full and fair procedures to the employee in question. Against this backdrop, the decision to dismiss was within the band of reasonableness.

Key Take-Aways for Employers:

These Labour Court determinations clarify that, while sick leave and health and safety leave are important mechanisms for employees to ensure their general wellbeing in the workplace, employers have a right to investigate suspected misuse or abuse of leave policies and explore disciplinary action (up to and including dismissal) where necessary. 

The determinations focused on the use of policies and procedures by employers and there are some important take-aways for employers:

• Sick leave policies:
  • Employers should have clear, comprehensive and up-to-date sick leave policies in place which are easily accessible and well known to all staff;
  • Employees should clearly understand the amount of paid leave to they are entitled in a defined period and the mechanisms on how to take leave and what must be communicated to employers and when.
  • Where employers suspect a misuse of polices, they should carefully follow sick leave procedures including requesting that the employee attends a company doctor and carefully follow disciplinary procedures where necessary.

• Disciplinary policies and procedures:
  • Whether employers suspect a breach of sick leave or health and safety polices, they should carefully follow clearly identified procedures with suspected employees.
  • Employees should be afforded fair procedures at all times during the process and be given an opportunity to put forward mitigating circumstances or explanations.  

Contributed by Darran Brennan