FULL RECOMMENDATION
) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH INFIRMARY-VICTORIA UNIVERSITY HOSPITAL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-139741-ir-13JOC.
BACKGROUND:
2. The Claimant has worked on night duty as a Health Care Assistant since 1997. The issue of "unsatisfactory attendance record due to sick leave" was first raised with the Claimant in 2009. Since that time there have been a number of short term sick leave absences most of which were certified by her Doctor. Management imposed sanctions which were considered by the Union to be too severe as it ultimately imposed a verbal warning and excluded her for six months from membership of the sick pay scheme. The verbal warning was rescinded on appeal. Management affirms that the Worker was treated in the same way as her colleagues.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd April, 2014, the Rights Commissioner issued his Recommendation as follows:-
"I find the respondent has every right to monitor the absence of its employees. I find that having examined the procedure that the first caution was a verbal warning and I find the respondent could have issued written warnings as a next step. I find the issue of a verbal warning and removing her from the sick pay as a double sanction. I also find that the Claimant did receive verbal warnings in correspondence dated the 5th January 2011, 13th September 2011 with letters dated the 31st May 2012, 17th April 2013 and 5th May 2013 and she was fully aware of the situation.
Recommendation.
The Claimant be paid for her absence on the 14th May only in full and final settlement of her claim".
On the 8th May, 2014 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 31st October, 2014.
UNION'S ARGUMENTS:
3. 1.The illnesses have been certified by the Claimant's G.P. and cannot be regarded as a reason for disciplinary sanctions.
2. If due to pressure from Management the Worker were to ignore the advice of her G.P. the consequences for her health could be catastrophic.
3.The double sanction of a verbal warning and her removal from the sick pay scheme were excessive and should be rescinded, and she should also be paid her wages despite her absence on 14th and 15th May 2013.
EMPLOYER'S ARGUMENTS:
4. 1.The HSE has set a sickness absence target rate of 3.5% and has reduced the available budget to the Hospital based on this assumption. Management therefore must reduce overtime costs and cannot replace staff while they are on sick leave.
2. The Claimant belongs to a category of staff that records the highest level of absenteeism and Management is duty bound to enforce a culture of attendance by means of the imposition of a variety/combination of sanctions.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which accepted her contention that the imposition of a verbal warning and her removal from the sick pay scheme for a period of six months amounted to a double sanction, however, she sought the reinstatement of two days’ sick pay and he reinstated one day only.
The Union informed the Court that on appeal the verbal warning was rescinded while the removal from the sick pay sanction remained. It submitted that as the Claimant had not exhausted the sick leave entitlement the two days in question, 14thand 15thMay 2013, should have been covered under the scheme. It disputed Management’s reference to the Claimant as being “absent” or being part of the “absence” culture when all of her absences were short-term and certified.
Management stated that it had made strident efforts to reduce and manage its absenteeism level over the years and had successfully reduced the overall levels down to 3.1% in 2014. As part of its efforts Management stated that the Claimant, who had a pattern of frequent short-term intermittent absences, and previously had two pre-disciplinary counselling meetings and two verbal warnings.
Having considered the submissions of both parties the Court notes the efforts made by Management to improve levels of absenteeism have realised rewarding results. Furthermore, the Court notes that as part of its management of absenteeism, other employees were similarly temporarily removed from the sick pay scheme.
However, the Court is of the view that the sanction to impose a six months’ suspension in lieu of a verbal warning was excessive. As it transpired the Claimant lost out on two days’ sick pay when she was absent on 14thand 15thMay 2013 and had no further absences for the remainder of the six months.
In all the circumstances the Court upholds the Rights Commissioner’s Recommendation and recommends that the Claimant should be reimbursed for one day’s sick pay with immediate effect. Accordingly, the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th November, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.