A General Operative -v- An Air Filtration Company
Background of the Case
The complainant, who was employed for 17 years by the multinational company, took a claim to the Workplace Relations Commission under the Unfair Dismissal Act 1997.
The complainant had been on certified sick leave for six weeks when the respondent found out he had been making himself available as a linesman for the FAI (Football Association of Ireland) for Senior Premier League matches. The complainant was a linesman for at least three matches during his sick leave and one involved him travelling to Northern Ireland. During his sick, leave he was in receipt of sick pay from the respondent.
The respondent brought the complainant through a disciplinary process and dismissed the complainant due to a fundamental breach of trust.
The following was the allegation outlined in the disciplinary invite letter:
“That on at least three occasions during your reported absence on sick leave you publicly demonstrated a level of physical fitness which directly conflicts with the basis on which you reported yourself unfit to attend work, and accordingly absented yourself from work, and claimed related payment under the Company’s sick pay scheme”
Summary of Complainant’s Case
The complainant, who submitted sick certificates stating he was “chronically ill”, claimed that the respondent failed to take into account his mitigating circumstances regarding his need to take time away from the workplace.
During the disciplinary hearing, it emerged that the complainant wasn’t actually sick but instead needed “to take the time off to be with his wife and daughter who were both dealing with severe depression.”
The complainant stated that these were “intimate domestic details” that he did not want to disclose to the respondent, particularly as he did not trust that this information would be kept confidential.
Summary of Respondent’s Case
The respondent argued that the complainant’s actions amounted to a misrepresentation such that it could no longer reasonably be expected to trust the Complainant.
The company had a sick pay policy that allows for up to 30 days’ sick pay for eligible employees within a year.
The respondent believed that the Complainant’s “ability to assist and referee at robust Senior matches was not consistent with the perception of being chronically ill which the Complainant had maintained and created with his Employer”.
The Adjudicator reviewed the respondent’s handbook in considering the case and noted the respondent had an unpaid compassionate leave policy in place.
The Adjudication Officer concluded that “Compassionate Leave is provided to assist Employees in exactly these types of situation. The Complainant provided no substantial reason for this fear that he could not trust his Employer to treat his private life with a sacred confidentiality.”
The Adjudicator issued a strong statement that tricking the employer into paying sick pay that he wasn’t entitled to warranted dismissal, stating; “Not every workplace provides for a Sick Leave payment scheme and it seems unfair to the Complainant’s colleagues that he has seen fit to abuse the Scheme in the manner that he has. Sick Pay is never intended to be provided because of difficult domestic circumstances – it is to provide Employees with comfort during a genuine period of illness. It was wrong of the Complainant to dupe his Employer in the way that he did.”
The Adjudicator noted that there were procedural flaws with the disciplinary process adapted by the respondent however, stated that did not render the dismissal unfair, stating; “The Complainant representative did point out a number of flaws in the procedures adopted. I accept the Complainant may have had difficulty sourcing the Company Handbook, there might have been inadequate notetaking and I accept that AG appears to have handled the investigation, Disciplinary and Decision making processes. However, I cannot find that any one (or any number) of the procedural flaws opened to me was sufficient to render this termination Unfair.
- An employer can investigate an employee who they suspect to be working elsewhere while on certified sick leave;
- The company’s internal policies and procedures should be reviewed;
- Employees should not take sick leave for time off to take care of family;
- Fair procedures should be followed when going through your disciplinary procedure.
If you have any questions regarding this case or employees on sick leave, please don’t hesitate to contact the advice line on 1890 253 369