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Unfair Dismissal, Sick Leave and Failure to Avail of Counselling Services

The recent case of Patrick Kinsella v Irish Prison Service UD 1120/2011 MN 1212/2011 concerned a claim for unfair dismissal where the claimant had been dismissed due to his attendance record and his ability to provide a reliable service going forward.Background and Preliminary IssueThe claimant commenced employment on 23rd November 2009 as an established Civil Servant and was required to serve a probationary period of one year. On 15th November 2009 the claimant was informed that his contract of employment was to be terminated with effect from 22nd November 2010. The claimant was informed of this by telephone on 15th November 2010 and he received a letter on 16th November 2010 confirming this. The claimant was not paid for 22nd November 2010 and the respondent argued that the Tribunal did not have jurisdiction to hear the claim as the claimant did not have the requisite service under the Unfair Dismissal Act 1977 (as amended). The Tribunal however proceeded to hear the claim and noted that notwithstanding the fact that the written notice was dated 15th November, the notice only took effect from when the claimant received the written correspondence on 16th November 2010. The Tribunal referred to the definition of “date of dismissal” under Section 1 of the Unfair Dismissal Act 1977 (as amended) and noted that even where prior notice was not given of termination, the date of dismissal is when the notice would have expired had it been given. Therefore the claimant’s date of dismissal was 22nd November 2010.The respondent gave evidence that the claimant was dismissed due to his overall attendance record and his ability to provide a reliable service going forward. The respondent noted that the claimant has been absent on sick leave on 5 separate occasions for a total of 17 days. The Tribunal was provided with a copy of the claimant’s sick leave record, written warnings and probationary reports. The respondent stated that the first written warning was dated 24th March 2010 concerning days sick leave taken up to that date and the second dated 30th April 2010 concerned a further 6 days sick leave taken up to that time. The respondent also produced a first probationary report in june 2010 where the claimant was warned in relation to his sick leave and future absences. The second probationary report in August 2010 noted that the claimant had no sick leave days since the previous probationary reports. The claimant had a further two day absence on certified sick leave from 30th September 2010 to 1st October 2010 inclusive and it was thereafter recommended that the claimant be dismissed in accordance with the correspondence dated 15th November 2010.The claimant contended that his sick leave record improved after he received the verbal and written warning and that the absence in September and October concerned an incident at work and his further absence concerned “force majeure” leave.DeterminationThe Tribunal observed that the respondent had questioned whether the claimant could provide a regular and effective service. The Tribunal reviewed and examined the record of the claimant and concluded:1. Sick leave and it’s abuse is justifiably an issue deserving of a process of continual monitoring by virtue of the nature of the service that the respondent provides2. Sick leave does and did arise in respect of the claimant as a result of the nature of the service3. (a) The claimant’s sick leave record was unsatisfactory and (b) was made known to him and resulted in a significant improvement subsequently4. That the remaining duties of the claimant was satisfactorily discharged in the course of his probation including the addressing by him of a matter concerning his second semester5. That the claimant therefore heeded and responded to the warnings issued which were in respect of sick leaveThe Tribunal concluded that the respondent’s conduct and performance in their assessment of the claimant was both unfair and unreasonable and was not a proportionate response to the way in which the claimant had discharged his contract. The Tribunal also noted that the claimant did contribute to his dismissal in respect of his record of sick leave and secondly by failing to avail of counselling and advice services provided by the respondent.The Tribunal ordered that the claimant be re-engaged within six weeks and awarded him €5,000 in respect of compensation for loss of pay.

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