FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS AND SPENCER LTD - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation No: r-081989-ir-09/DI
BACKGROUND:
2. This case concerns an appeal by the Employer ofRights Commissioner Recommendation No: r-081989-ir-09/DI. The issue concerns an employee of Marks and Spencers Limited who was issued with a Stage One (Verbal) warning for excessive sick leave absences. Management's position is that it was fully compliant with its disiplinary procedures, which are agreed wth the Union, when it issued the verbal warning to the worker.
The Union's position is that during the period of illness the worker had been admitted to hospital and was covered by medical certificates for the absence in question. In such circumstances the Union contends that it was inappropriate to issue a disciplinary sanction.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on 13th April 2010 and found that by issuing the worker with a Stage One (verbal) warning that management had acted at variance with the principals it sets out in its sickness and absence policy. He further recommended that the warning be rescinded and removed from the worker's record.
On the 23rd April, 2010 the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 11th August, 2010.
UNION'S ARGUMENTS:
3 1 Management should not have issued a warning of any sort to a worker who was certified unfit for work and was an in patient in hospital at the relevant time.
COMPANY'S ARGUMENTS:
4 1 The worker has had excessive sick absences since her employment began with the Company. Managment must maintain the right to impose sanctions in line with its disciplinary procedures.
DECISION:
The Court accepts that it is appropriate in certain circumstances to use the Company disciplinary procedures in cases of excessive absence due to sick leave.
However in this case it is clear that in the period covered by the review giving rise to the verbal warning the Claimant was clearly ill and had been hospitalised. In these circumstances the issuing of a disciplinary sanction because of this absence was inappropriate.
In these circumstances the Court concurs with the Recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
1st September 2010______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.