In a recent case, the Labour Court found that the dismissal of an employee for deliberate manipulation of company policy and misuse of the company sick pay scheme was fair. We examine the facts of the case and outline the importance of operating absence control programmes and similar policies for monitoring sick leave.

Background

In Keelings Logistics Solutions v Simas Maliauskas, the company (“Keelings”) operated an Absence Control Programme ("ACP") which had been collectively agreed with the trade union representing staff in the company. The objective of the ACP was to maintain absence levels at, or below, 3%. In 2016, however, the absence levels in the company had reached 8.42%.

The ACP involved a staged process whereby a person’s absence pattern could lead to progressive phases of warnings being issued. At phase four, for instance, an employee could be served with a final written warning. At phase five, an employee could be considered for “capability dismissal”. The ACP provided that if an employee completed a period free from absence, the employee would be stepped back to the previous phase of the procedure.

Mr Maliauskas had been absent on 66 occasions between 2005 and 2015, totalling 316 days. In, or around, April 2015, the company commenced a review of employees with the highest level of absences. Mr Maliauskas was one of these employees. The company found that on 11 occasions he had been absent on sick leave directly before, or after, annual leave and that he had been absent on sick leave on, or directly after, his birthday on four out of 10 years of his employment. The manager arranged for an investigation to be carried out into the sick leave taken by Mr Maliauskus.

The investigator identified the matter under consideration as “alleged misconduct – manipulation of company policy and misuse of company sick pay” and recommended that Mr Maliauskas be put forward for a disciplinary meeting. Following a disciplinary meeting, Mr Maliauskas was dismissed.

Mr Maliauskas contended that the company could not undertake a disciplinary process outside of the ACP. He further contended that, because the company had done so, the disciplinary procedure was consequently unfair. Mr Maliauskas claimed that he had not been made aware that his absence pattern could give rise to a risk of dismissal, arguing that his absences had been dealt with throughout his employment under the ACP. He claimed that he had no control over when he was ill and that he had always followed procedures. Mr Maliauskas further claimed that he had never been accused of dishonest behaviour.

Decision

In its decision, the Court noted that the ACP was clearly incapable of addressing a situation where the company was faced with an extraordinary level of absence which, if repeated widely in the company, would have been wholly unsustainable. The Court accepted that it was not the level of absence itself which gave rise to the disciplinary procedures but, rather, the alleged misconduct through the manipulation of company policy and the alleged misuse of company sick pay. The Court noted that the absence levels of Mr Maliauskas and a contention of manipulation and misuse of policies by him were distinct matters.

The Court found that the company was entitled to address matters of alleged manipulation of company policy and misuse of company sick pay through the agreed disciplinary procedure. As the procedures had been employed fairly and correctly in the case, the Labour Court found that the Appellant had not been unfairly dismissed.

Conclusion

This case highlights the importance to employers of effectively managing employee absences due to sick leave. Although the employee in this case had complied with the notification requirements of the ACP, he was found to have manipulated and misused the company sick pay policy. Employers’ sick leave policies should make provision for monitoring of employees’ absences due to sick leave. Such policies should also provide that alleged misuse of the employer’s sick leave or absence policies, may be dealt with as a disciplinary matter in accordance with the disciplinary procedure.