This case involved a claim of unfair dismissal. The complainant had been employed with the respondent in 2001 and was placed under the care of the Chief Medical Officer (CMO) in 2013 following a number of issues relating to his time and attendance. The respondent had put in place various supports to assist the complainant, including facilitating a transfer to a new workplace, but in the period February to March 2017 the complainant failed to attend meetings with the CMO as required. This was not the first occasion that the complainant had failed to attend consecutive appointments with the CMO.

Accordingly, the matter was referred back to the respondent's management who viewed this as the complainant abandoning his position and wrote to him advising that he had been removed from the payroll. The line manager, Mr Gray, gave evidence that he met with the complainant on the 24th March 2017 and outlined to him the serious nature of his failure to comply with the company's sick leave policy and that his future employment was in jeopardy.

Subsequently, Mr Gray made a medical appointment for the complainant but he did not attend same. On foot of this, the HR department advised that a letter titled 'abandonment of employment' be issued to the complainant. This letter was issued on the 30th March 2017 being the day after the 'no-show' medical appointment and the same day the CMO's office notified Mr Gray of same. In evidence, Mr Sullivan, the Production Planning Manager could not explain why, in circumstances where the complainant had attended the workplace on 2 occasions the previous week, it was decided to remove the complainant from the payroll with effect from the 10th March 2017. He also failed to explain how he concluded that the failure to attend the medical appointment could constitute an abandonment of post, and confirmed that it was not part of the disciplinary process. He also confirmed that the disciplinary process had not been invoked, with a Mr Norton giving evidence that the stakeholders had agreed not to use the disciplinary process as same required engagement by the complainant which had not been previously forthcoming.

The complainant did not dispute that he had a poor attendance record but stated that he had an underlying medical issue which the respondent was aware of. The Union, on behalf of the complainant, submitted that it was not credible that the complainant had abandoned his post when in fact the respondent had interactions with him the previous week and they also argued that if the respondent had issues with the complainant's failure to comply with the sick leave policy then they should have invoked the disciplinary process.

The Court stated that the issue to be decided was whether the circumstances of the dismissal were unfair. The Court pointed out that they could not accept that the complainant had abandoned his post and regardless of whether he had, this did not remove the requirement to apply the principles of natural justice. The Court found that dismissal could not be deemed to be fair as the decision to dismiss the complainant was not proportionate to the gravity of the complaint and the gravity of the effect of dismissal on the complainant. Accordingly, the Court ordered that the complainant be re-engaged within 6 weeks of the Court's decision.
https://www.workplacerelations.ie/en/Cases/2018/October/UDD1857.html