An employee at Lidl’s head office in Ireland, who was fired after missing work on 69 days over a 16-month period due to sick leave, has been awarded compensation of €16,000.
The Workplace Relations Commission ruled that German supermarket group had unfairly dismissed warehouse operative, Mihalis Buinenko, over his poor attendance rates at work.
Lidl Ireland denied that the termination of Mr Buinenko’s employment was unfair and claimed its decision to dismiss him was “fair and reasonable".
Legal representatives of Lidl said the company had carried out an investigation in May 2021 into his alleged pattern of unreliable attendances over the previous 16 months.
Counsel for Lidl Ireland, Paul Twomey BL, said the investigation concluded that there was alleged gross misconduct in relation to alleged excessive disruption to its operations.
In particular, Mr Twomey noted that the report claimed Mr Buinenko had failed to attend work on 69 occasions.
The WRC also heard allegations that he had left work early on 10 occasions during the same period as well as taking an extended break without authorisation or approval by Lidl management on 13 occasions.
Mr Twomey said the warehouse operative was dismissed for breaching company procedures and being unable to provide a valid reason for his repeated failure to attend work and leaving work early on multiple occasions.
He claimed such actions were extremely disruptive for Lidl’s operations and had led to a fundamental breakdown of trust in the working relationship between the parties.
A regional logistics manager with Lidl told the WRC that the average level of absenteeism was six days per year.
However, he said Mr Buinenko had missed approximately 20 per cent of working days which had resulted in his work colleagues having to work extra hours to make up the shortfall.
While there had been “multiple conversations” with the complainant about his absenteeism, the witness said Mr Buinenko had not changed his behaviour.
Cross-examination
Under cross-examination by counsel for Mr Buinenko, Dermot Sheehan BL, the manager accepted that the 69 days when Mr Buinenko missed work were not unauthorised absences as he had complied with Lidl’s policy on sick leave.
The witness also acknowledged that Lidl had not referred Mr Buinenko for occupational health assessment.
Mr Buinenko, who had worked with the company since September 2010, claimed he was unfairly dismissed from his job on June 4th, 2021 for alleged gross misconduct after being subjected to an unfair disciplinary process.
He told the WRC that his 69 days of absence had been certified by a medical practitioner which recorded various issues including being an inpatient in hospital, discopathy, back pain and hip pain.
Mr Buinenko claimed Lidl’s handbook on its sick pay scheme had no sanction for taking an excessive amount of sick days nor any provision for related disciplinary measures.
He described the finding that his absence from work amounted to gross misconduct as “perverse” and the decision to dismiss him as “unreasonable and disproportionate".
He estimated his losses from losing his job at €22,955 and sought compensation and aggravated damages.
Under cross-examination, Mr Buinenko accepted his attendance levels had been the subject of a previous investigation and that his attendance rate was a problem for Lidl.
In her ruling WRC adjudication officer, Anne McElduff, said she was satisfied overall that Lidl had conducted the disciplinary process in accordance with proper procedures.
However, Ms McElduff said only providing Mr Buinenko with the totality of sick leave days, and other occasions when he left work without permission had not allowed him the opportunity to challenge specific times and dates.
Ms McElduff said she was not persuaded that discussions between the parties about his attendance rates were sufficiently detailed to justify his dismissal.
She said it was unreasonable for Lidl to include the complainant’s sick leave as a basis for reaching its findings as the company had accepted that such absences were certified.
Ms McElduff said Lidl should have first referred Mr Buinenko for an occupational health assessment and then with the complainant and/or his family doctor “prior to any consideration of disciplinary action, let alone dismissal, arising from the taking of sick leave.”
The WRC said Lid’s rationale in its dismissal letter when it claimed his actions were “willingly disruptive” was “wholly unreasonable”.
Ms McElduff said she also accepted Mr Buinenko’s evidence that he had notified his line manager when he left work early or for some specific reason.
