FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation R-141236-IR-14/EH.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-141236-IR-14/EH. The dispute relates specifically to the Worker's claim that she was treated in an inequitable manner by her Employer following her removal from the Company's Sick Pay Scheme, prior to the conclusion of an internal investigation into her levels of absenteeism. The Employer rejects the Worker's claim, arguing that they acted fully in line with Grievance and Disciplinary Procedures when suspending the Worker from the Sick Pay Scheme and issuing her with a written warning.The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd June, 2014 the Rights Commissioner issued his Recommendation as follows:
"I recommend that the verbal warning should stand.
I recommend that the suspension from the sick pay scheme for the period of 12th September 2013 to 4th October 2013 should be expunged from her record and if there was any absence during that period she should have it covered by the scheme/
I recommend that she should commit herself to attend work on a regular basis".
On the 25th July, 2014 the Worker appealed the Rights Commissioners 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 9th September, 2014.
UNION'S ARGUMENTS:
3. 1. The Worker was removed from the Sick Pay Scheme prior to attending a Disciplinary hearing on the matter.
2. The Worker was previously disciplined on the same absences which were considered as part of her sanction on this occasion.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker has a historical pattern of high level absenteeism.
2. The Employer asserts that it acted fairly and reasonably in all the circumstances of the case.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal. The Court notes that the Rights Commissioner issued a carefully reasoned and comprehensive recommendation in this case. The Court cannot see any reasonable basis upon which it could disagree with the general approach of that recommendation.
There are, however, some additional aspects of the case which have influenced the Court’s approach to the appeal. The Claimant had a relatively consistent level of absence over the five years taken into account by the Company. Yet the Company failed to address that situation until 2013. The Company’s failure to address the problem in a timely manner is, in the Court’s opinion, a mitigating factor which should be taken into account.
The Court believes that having regard to the particular circumstance surrounding this case the duration of the Claimant’s suspension from the sick-pay scheme should be shortened, and that she should be restored to the scheme with effect from 1stSeptember 2014.
It should, however, now be clear to the Claimant that an unusually high level of absence on sick leave is unacceptable to the Company and can give rise to the disciplinary process being invoked.
With this modification the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
22nd September 2014______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.