Dismissal For Deliberate Manipulation Of Company Policy Found To Be Fair

Author:Ms Melanie Crowley, Ian O'Herlihy and Christine West
Profession:Mason Hayes & Curran

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. 


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...

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