A Lidl worker suffering from depression who was disciplined in absentia and sacked after missing emails that claimed he had failed to send in sick notes has won €16,000 for unfair dismissal.
Defending Kamil Goljanak's unfair dismissal claim before the Workplace Relations Commission, the supermarket maintained it had "no contact" from him during an "unexplained" two-month absence before it launched a disciplinary investigation.
However, after it was ordered by the tribunal to produce any sick certs it had on file, it emerged Lidl Ireland had possession of a medical note which was not mentioned anywhere in the investigation report that led to Mr Goljanek’s sacking.
Mr Goljanak’s claim under the Unfair Dismissals Act 1977 against Lidl Ireland Gmbh was upheld in a decision by the Workplace Relations Commission published this morning.
Sales operations director for Lidl, Darren Devine, the only witness to appear for the company, said there had been "no response" from Mr Goljanak in May 2021 to inquiries from the company’s former sales operations manager, Paul Dixon about his absence.
Mr Dixon gave Mr Goljanak a deadline of 7 June 2021 to reply, before starting an investigation into alleged failure to follow the company’s absence notification process, and alleged gross misconduct for failing to contact the sales operations manager as requested, Mr Devine said.
Mr Devine said the complainant failed to appear for either an investigation meeting or a disciplinary hearing in July 2021 and that he sent him a notice of summary dismissal in August that year.
However, after Mr Devine said in evidence he "could not recall" whether hard-copy letters had gone out to Mr Goljanak, the company admitted in a legal submission that there was "no log of telephone calls or letters" – stating that it had "adapted" its communication procedures during the Covid-19 pandemic to send such notices by email after having them read aloud to the recipient at work.
In evidence to a hearing in January, Mr Goljanak said that because of his ill health, and because he argued it was "unusual" to get correspondence by email from his employer, he was not monitoring his company email address from 19 May 2021, when he went out sick.
He said he had met a former colleague, deputy store manager Anna Seredyn, on a number of occasions during his absence to give her sealed envelopes containing his medical certs.
Ms Seradyn, who confirmed accepting the envelopes, said that she would ordinarily have opened them and faxed the documents to Lidl’s HR department.
However, she told the WRC that when she got the first one, she was instructed by the district sales operations manager, Paul Dixon, "not to send them to HR".
Instead, she was to leave them in a locked box for the store operations manager, she said.
A store manager, Obigraf Daskalov, who was also called by Mr Goljanak to give evidence, said email "was not the usual means of communication with employees" at Lidl and that absent staff would ordinarily be contacted by "progressive means" starting with a phone call and then attempts to contact them via next of kin and fellow workers.
Scott Jevons, a Lidl employee relations manager, said in a legal submission the company had made "exhaustive efforts" to engage with Mr Goljanak – accusing him of a "blatant disregard" for the supermarket’s policies which had led to an "irreparable breach in trust and confidence".
He added that the complainant had failed to take up the offer of an appeal within seven days of the notice going out.
Mr Goljanak said he would have looked at any letters posted to him by the firm, but that he received none – saying he did not engage with the disciplinary process because he was "completely unaware" of it.
He said he was left on payroll until the following February, in what the company said was an administrative error, and only discovered the emails when the firm stopped paying him and he made inquiries.
He argued the supermarket's filing system was "unreliable", as the personnel file the supermarket had brought to the tribunal was missing other medical certificates but had corresponding absences as being medical in nature.
Mr Goljanak also pointed out that one of the two medical certs the supermarket had on file related to April 2021, shortly before the supermarket launched its investigation.
Mr Jevons, for the supermarket, said the firm did not accept Mr Goljanak’s evidence that he had not looked at his emails, or the testimony of either of the witnesses produced by the complainant.
The WRC, ultimately, made no ruling on the evidence of the store manager and deputy store manager, with adjudicating officer Michael MacNamee finding that the existence of the April 2021 sick note "undermines the reliability and accuracy of the investigation report and the formulation of the reasons for the case to answer [for the complainant]".
The tribunal found Mr Goljanek, who represented himself as a lay litigant, had given evidence with "frankness and candour" on the effects of his condition and that it was reasonable that he had not been monitoring his inbox when the messages came.
"In normal circumstances one would fully expect that an employee absent for a lengthy period on sick leave would be anxious to monitor any communications from his employer... However, the complainant’s situation was not a normal one," he wrote.
He noted that the company had disclosed two medical certs on the complainant’s file at his direction, one of which certified Mr Goljanek as "unfit for work" in mid-April 2021.
"It is thus beyond doubt that at least one medical certificate made its way to the personnel file and was received by the respondent," he wrote – finding that the supermarket knew he was "certified as sick".
"It is thus beyond doubt that at least one medical certificate made its way to the personnel file and was received by the respondent," he wrote – finding that the supermarket knew he was "certified as sick".
Mr MacNamee noted there was no mention of this certificate anywhere in the investigation report, nor the certificates that on the complainant’s case were left in the locked box by Ms Seradyn.
"No reasonable employer in the circumstances of this case would have dismissed the complainant and accordingly I find that the dismissal was unfair," he wrote, awarding €16,000 in compensation.
