_ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000027

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/02/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 80 of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Respondent’s Submission and Presentations.

The complainant commenced employment with the company in the Distribution Centre on 23May 2005 and was employed as a Warehouse Operative. He was dismissed from employment on the 6 August 2015 following a thorough and detailed investigation and disciplinary process for Gross Misconduct as a result of “ Manipulation of Company Policy and Misuse of Company  Sick Pay”.

The complainant claims that he was unfairly dismissed by the Company.  The Company rejects this claim.

The complainant dismissal was fair and reasonable in the circumstances.  The Company refutes the claim brought by the complainant and denies that he has any claim or entitlement under the Unfair Dismissals Act 1977 – 2007.

The Respondent Group comprises a number of separate business units in growing, purchasing, sales and distribution of fresh food and flowers in Ireland and Europe. The respondents Logistics Solutions a subsidiary of the Group and provides a Logistics Service to a large supermarket retailer in Ireland, delivering chilled, frozen and ambient products to all 149 stores in the Republic of Ireland. The Distribution Centre itself is located in Ballymun and has a constant movement of goods in and out, 7 days per week.

The company has an Attendance Control Programme in place to manage absence. The Absence Control Programme is a collectively agreed policy that has been in place since 2007. The key agreed objective of the policy is to maintain absence levels below 3%.  Absence levels in the warehouse currently run at between 5 and 8%.  

Notwithstanding that an employee may be within the ACP or not the company provides for sick payment of up to six weeks pay.

The structure of the ACP programme is that a person with persistent absence can progress through four Phases of prescriptive warning.  The protocols are that a   Final Written Warning may be issued in relation to persistent absenteeism only at Phase 4. When Phase 5 is reached a person is at that point being considered for a capability dismissal. Were a person to complete all phases and lead to a capability dismissal the entire process would last 24 months. The ACP is a lengthy and inflexible process.

A further contingent issue in this claim is that absences on foot of reported accidents at work do not count adversely in reckoning under ACP. So far as this claim is concerned, the company operates a compassionate leave policy which is separate from any of the above.

This package of measures is to support employees with genuine reasons for absence. However the complainant manipulated his pattern of paid absence in such a way as to extract maximum benefit (for him) within the limits of the ACP and other policy supports. An ACP is not to facilitate paid absence benefit, but to regulate the management of absence (in this instance on a collectively agreed basis) such that each individual is treated equally.  In this claim the complainant was not dismissed for reason of capability, but that by his behaviour he had abused the ACP process to attempt to unreasonably maximize and extract benefit.

The company sought a review of the ACP with the union in December 2013-- which was provided for in LCR 20320. The review failed as no agreement could be reached to make the process more effective and credible.  In the light of the continuing absence levels the company commenced the process of placing more focus on direct  ways to manage the  unacceptable  absence levels on the site.

On the 20 April 2015 following a company review of absence levels in the Distribution Centre the complainant was invited to a formal meeting to discuss the details of his absence patterns on the following terms , Manipulation of Company Policy and Misuse of Company  Sick Pay.

On receipt of this letter on the 21 April the complainant wrote a grievance to HR to state that he was being discriminated against by them. HR responded to this letter on the 23 April 2015 as they believed it was not related to the matter at hand but was instead in relation to one of the complainant’s previous grievances some six months earlier.

On the 22 April 2015, the day prior to the planned investigation meeting,  the complainant left work without permission. He told the Warehouse Team Manager that he was stressed.  The Shift Operations manager asked him to come to his office to discuss the matter and he refused.

In line with the company absence control policy on the 23 April 2015  the company received a medical certificate to state that the complainant would be absent with work related stress. Subsequent medical certificates following this initial one outlined Stress related illness.

On the 28 April 2015 the complainant was referred to the company occupational health specialist.  He met with a Doctor on the 11 May 2015

That doctor stated that:

“ that Mr ………… was fit to attend workplace meetings and was advised to return to work by the doctor in order to resolve his alleged workplace issues.

In line with the usual practice, the complainant was invited to meet with HR Manager on the 21 May 2015, to discuss the doctor’s report.  Following a detailed discussion with the complainant where he made allegations of discrimination and expressed serious dissatisfaction with the company, he stated that the company doctor was biased and that he was being ignored when he raised grievances. The HR followed up the discussion in writing, to address the issues that he raised and to tell him that she would send him to another doctor for a further view on the matter.

On the 28 May 2015 the complainant was sent to another occupational health specialist for a further opinion. This doctor advised that  the complainant should engage with the company to resolve the issues that he believed were outstanding.

On the 4 of June, the HR Officer, wrote a detailed letter to the complainant to outline and enclose the second medical report and to invite him to a rescheduled investigation meeting. That investigation meeting was to be held on the 11 of June 2015.

The complainant had clear patterns of manipulation of the company ACP. Since 2007, it is well documented that  the complainant  has had significant problems with attending work with periods of extensive absences. He has regularly been admitted to the ACP

However the key issue is that when the warning phase expired, he regularly recommenced absence within a short period, as short as two  days . This had the temporary effect of restraining his occasions of absence during   that phase of warning. In the period following the initiation of each of a monitored ACP phase the complainant record of absence was transformed –and when the phase  was over it reverted to its prior pattern. This is not coincidental it is alleged :--

1. Entered Phase 1 (P1)  on 02.06.2010

               Entered P2 on 18.08.2010. Was absent in his monitoring period but did not hit the          triggers.  

2. Entered P1 on 19.04.2011.

             Entered P2 on 10.08.2011.

             Phase 3 meeting held on 29.02.2012 but was not progressed to  Phase 3.

3. Entered P1 on 13.04.2012.

Entered P2 on 27.05.2012.

Phase 3 meeting held on 19.10.2012 but was not progressed to  Phase 3.

4. Phase 1 meeting held on 03.03.2013 but was not progressed to  Phase 1.
5. Entered P 1 on 26.04.2013.

             Entered P 2 on 07.07.2013.

             Entered P3 on 08.11.2013.

             Entered P4 o 22.03.2014. Was absent in his monitoring period but did not hit the        triggers.

It is clear from this that the complainant’s exit from phases and subsequent absence was not simply a matter of chance or coincidence. The same sequence of events has happened on more than one occasion whilst he has been in the programme at different stages.

He has manipulated the policy and the timing of his absences, going absent very soon as he exited a phase that held a high level warning and timing his absence with life events such as annual leave and birthdays.

During the formal process the complainant alleged that the company were using details of his accident absence record against him.  It is stated that this is not correct. However it is correct that in the years were did not use his full sick pay entitlement he had used a substantial amount of accident pay.

In total the complainant advanced thirty one different reasons for his absence .

The complainant had 7 occasions of compassionate leave granted from 2008 – 2014 . The normal company’s expectation is for employees to act with integrity and honesty in asking for compassionate leave. He could not explain who the 7 close family members were to support his requests. When the company checked the records of his relatives who work at the site they had not taken time off for the alleged passing of close family members.

The complainant had 11 occasions of being absent directly before / after annual leave since 2007. When he was questioned about this he did not offer any explanation as to why this coincidence would occur.  

The complainant had been sick/absent on or directly after his birthday 4 times in 8 years—always  around the 8 May.

He attended formal investigation meeting with the Warehouse Team Manager, the Shop Steward, and a note taker present.  During the meeting the fact of his frequent exit and entry of phases of the Absence control policy was discussed.  

The 7 instances of compassionate leave were also discussed. The matter of his use of 100% of his 6 weeks sick pay entitlement each year since 2011 and the timings of his absences were also discussed in detail.

On the 16 June 2015 the Warehouse Team Manager, issued an investigation report which recommended that the complainant be put forward for a disciplinary hearing. He found that it had been established during the investigation process that the complainant combined level of absence  ( ie not only limited to ACP protocols)  was far more serious than had been originally thought when he was invited to investigation. He stated that the matter in his view arising from the investigation,  which was “ Manipulation of Company Policy and Misuse of Company  Sick Pay “,  was one to be dealt with under  Gross misconduct    and should be treated as such.

The Shift Operations Manager held the complainant disciplinary hearing on the 24 June 2015. The complainant was accompanied by a union representative.

At no time during the process did the complainant acknowledge that the patterns of his absence were unacceptable.

The complainant’s union rep maintained the position that this matter should only be dealt with through the ACP.  On the 6 & 20th of July the Human Resources Officer wrote to him to inform him that the matter was under consideration by a named manager. As he was still absent from work he was sent to a company doctor for a further medical view to establish his fitness for work and fitness to attend company meetings. It was the view of that doctor that he was fully fit for work and should return on the 4 August, the company doctor stated that she would share this view with his GP. The complainant stated he was not sure whether he would return or not, but would discuss it with his GP.

23 July 2015 – the was informed in writing that the doctor had made a recommendation that he return to work as he had recovered from the matter that had caused his absence and that he would be expected at work as outlined on the 5 August.  He was also informed that the outcome of his disciplinary hearing would be issued on his return to work.

On 5 August 2015 the complainant failed to return to work and failed to make contact with the company.

On  the 6 August 2015 the complainant was written to again in relation to his return to work as he had failed to come to work on the 5 August as advised by the company doctor. This correspondence enclosed the outcome of the disciplinary hearing with the complainant.  This was sent to him by courier and notified him of the termination of his employment with the company i.e. 6 August 2015

It was believed that the sanction of dismissal was the only appropriate sanction under the circumstances and outlined in detail his reasons in the letter send to him.

The complainant emailed his intent to appeal the sanction on the 12 August 2015.   He did not outline any grounds for appeal.

On the 17 August 2015 the complainant was informed of the details of his scheduled appeal hearing which was to be held with the General Manager on the site.

His representative from SIPTU attended the Appeal hearing with the complainant on the 20

August 2015.

On the 28 August 2015 the General Manager issued the outcome of the appeal.  He addressed all of the points raised in the hearing in detail and upheld the original decision.

• The complainant was dismissed on grounds of conduct in that he had demonstrably manipulated the operation of  policies , as per the terms of Investigation ,  Manipulation of Company Policy and Misuse of Company  Sick Pay The record shows that  when his warning Phase within the ACP was not determinative,  he had continuing absences,   but so arranged them  as to stay within limits.
• However, his abusive manipulation was that when the current warning expired he regressed immediately to a further pattern of   absence, the same as had preceded the warning in question.
• They anticipate that the complainant may state that when he is sick he is sick and in that regard he has done nothing wrong. That argument is not accepted when the totality of the scope of his absences, the multiple reasons for his absences and the timing of taking his absences are taken into account.
• They anticipate that the complainant will argue that the ACP should be used in isolation and that there is no provision within that agreement for dealing with manipulation of the policy. This is correct and not disputed by the company. It is also indicative of the obstacles to reaching a more practical policy that could not be achieved  with Siptu in negotiation.
• The company does not require the ACP to have any mechanism for abuse of the sick leave regime in place. The internal disciplinary policy, which has been in place to deal with matters of misconduct and is agreed with SIPTU since 2003, is the mechanism in place for the purpose of dealing with abuse, and it has been used in other cases.
• The complainant was brought through all stages of the company Disciplinary process , where he was afforded representation and natural justice was afforded to him at all stages; the dismissal was procedurally fair.

Complainants Submission and Presentation:

The complainant has commenced his claim pursuant to the Unfair Dismissal Act 1977. He claims that he was unfairly dismissed from his position as a warehouse operative with the respondent on 6^th of August 2015.

The complainant started his employment with the company on 25^th of May 2005.

The Respondent operates a programme for the purpose of monitoring sick leave absences namely the Attendance Control Programme (ACP). There are 5 stages within this programme. Allegations have been made against our member in respect of abuse of this programme and abuse of sick pay scheme.

The complainant came back to work after his 3 weeks sick related absence. On that day, 20^th of April 2015, he attended “Attendance Review Meeting” carried out by the Shift Operational Manager. He promised to contact the complainant later after reviewing his attendance record . On the following day our member received a letter dated 20^th of April from the HR Officer inviting him to an investigation meeting on 23^rd of April . There was a written breakdown of his absence details enclosed. The letter set out details of alleged misconduct stating that there had been manipulation of company policy and misuse of company sick pay. The letter, inter alia, stated

Following a recent review of absence level within Distrubution Centre there is a reason to believe that you have sought to manipulate and misuse the provisions of the company’s sick pay and absence and policy with respect to your absence levels. It is alleged that the timing of your absences are deliberately timed to manipulate the various phases of the Absence Control Policy.

On the following day the complainant lodge a grievance against HR that he feels being discriminated. He was of the view that his previous grievance in relation to alleged discrimination, which he lodged in October 2014, was not investigated by HR. On the following day HR manager responded to the matter that on 27^th of October 2014 the company did not have required information to proceed with his grievance.

On the 23^rd of April the shift operations manager completed the review of the attendance as a follow up from the meeting on 20^th of April . The letter the complainant states is crucial to the complainant’s fate as the review of attendance meeting held on 20^th of April ultimately led to the complainant being unfairly dismissed. However, nowhere in the Shift Operations Manager’s review does it mention that the complainant had abused or acted dishonestly with regard to the APC. These allegations were only asserted to in he HR manager’s letter from 20^th of April, inviting the complainant to an investigation meeting. It was highlighted that there were only a few hours or maximum a day between review meeting and HR’s managers correspondence to the complainant. To add to matters, the complete review was actually finalised two days later. The complainant did not attend investigation meeting set on 23^rd of April due to work related stress sick leave. He was on sick leave till the termination of his employment on 6^th of August.

The Complainant was requested to attend the company Doctor, on 11^th of May. Company doctor found the complainant fit to work and able to attend any further meetings. The complainant contested those findings as they were in contradiction with his own doctors’ findings.. The company requested the complainant to attend a different doctor .On 28^th of May the complainant met with the second doctor who was also a, company’s Doctor. In the medical document issued on 28^th of May, he stated that in his opinion,

“ “ has symptoms consistent with an acute stress reaction. Mr……… attributed his stress to pressure from the company. I have advised Mr………… that in my opinion the best way to remediate the stress is to engage with HR to try to resolve any issue that may exist. Mediation may help to resolve these issues. In my opinion Mr ………. is fit to engage with HR”.

Following medical opinion, it seems that the company did not decided to use mediation, but instead continued the investigation and called the complainant to attend investigation meeting.

On the 4^th of June company wrote to the complainant requesting him to attend the investigation meeting on 10^th of June. There was no offer to enter any mediation process.

Investigation meeting took place on 11^th of June and the Complainant was asked to provide reasons to his absences between 2005 and 2015, including naming deceased members of his family in relation to availing compassionate leaves in the past. On 16^th of June our member was provided with investigation report

According to the report, the complainant was not able to provide any definitive reasons for number of absences. HE stipulated that it is difficult to remember all of the details from last 8 years. He requested to be given dates when he applied for compassionate leave. Furthermore, the company was of the view that he had absences within the monitoring periods while ensuring that he did not hit criteria to invoke a next phase meeting. It was found that on more than one occasion when he exited a phase, he would go absent again within a week of exiting – one of which was after demonstrating behaviour within the 12 month period of Phase 4. The Company concluded that since 2005 when he joined the Company the complainant has been absent on 66 separate occasions totalling 316 days for number of reasons outlined in the report. The company appointed investigations officer, who carried out the investigation was of the view that there is evidence of manipulation of company policy by deliberately timing his absences. It was suggested that it was a gross misconduct. The Complainant stated that over the 10 years of his service, he was not accused of manipulating and/or misuse of sick pay policy, or attendance policy. Company carried out number of attendance reviews (i.e. such review was carried out in March 2014 prior to the one on 20^th of April 2015) with the complainant, and company did not find any abuse or misuse. On 22^nd of June he was requested to attend disciplinary meeting scheduled for 23^rd of June. He was of the view that it was very short notice, especially given the fact that the investigation report was a lengthy document. A Disciplinary meeting took place on 24^th of June and was conducted by the Shifts Operation Manager. The complainant was accompanied by his union representative.

Following the disciplinary meeting, The complainant received two letters (6^th of July and 20^th of July) stating that the company appointed officer was ‘currently considering the evidence before him’. However, when the complainant finally received the outcome the cause of delay was connected to our member’s absence from work. There was a month and half gap between disciplinary meeting and the decision.

The Complainant was supposed to be back to work on 5^th of August, but did not come in. On the following day he submitted another sick cert for additional 3 weeks. Initially company intended to furnish him with the disciplinary outcome on 5^th of August upon his return, but the HR manager sent the decision by courier on 6^th of August instead . The decision was to terminate the claimant’s employment immediately . The letter of dismissal was dated 27^th of July, 2015 The complainant appealed the decision. The appeal hearing was held on 20^th of August and at that juncture he was represented by a Siptu Official. The decision to dismiss the complainant was upheld on 28^th of August , 2015

The complainant stated that :

• fair procedures and natural justice was not afforded to the complainant in respect of his dismissal and that the sanction was not warranted given the circumstances.
• The complainant had no prior indication that his employment with the complainant was in jeopardy as he had at all times followed Company procedures in respect of the ACP. When his absenteeism level was of concern to the company, review meetings were carried out. The company had an opportunity to assess each absence, review it and apply appropriate phases if necessary, according to ACP.
• At no point in the past was the complainant accused of dishonest behaviour.
• When he was ill he followed the procedures.
• All his request for compassionate leaves, force majeure leaves were granted, all his sick certs were accepted.
• There is nothing in the handbook or ACP that misuse or manipulation of company’s attendance policy is a gross misconduct and could lead to a summary dismissal.
•  Additional accusations of abusing compassionate leave which amounted to an extra allegation for which our member was dismissed
• Failed to provide him with the copies of compassionate approval forms.

According to the company’s policy:

“6.2 When the employee returns from work following Compassionate Leave, a Return to Work document must be completed. Subsequently, a compassionate leave approval form must be completed.  6.3 The HR department will ensure to enter this leave as compassionate Leave on the employee’s file. It will not form part of the ACP. The employee will be paid as normal”

The complainant stated that the company should have furnished him with copies of such documents prior to investigation meeting; however, it was not done. He argued that he provide answers to his best ability and stated that he did not abuse compassionate leave. Furthermore, he stated that during the appeal process the appeals officer took the opportunity to cross check the dates that the complainant availed of compassionate leave with the rosters of his family members that also worked for the respondent. He found that none of the complainants relatives availed of such leaves on the same day Our member was not provided opportunity to respond to these findings.

The complainant’s understanding of the ACP in this company is that it was introduced to stop individuals circumnavigating the system that was already in place, which the company believed allowed for such behaviour, the ACP was to be a programme with a structure which would not allow this to occur. However, it now appears as if the company does not and certainly has not in the case of the complainant complied with the terms of its own programme.

The complainant states that In addition to all the above, the company failed to discharge duty of care in relation to him in that:

• the company did not follow on up on the claimant grievance which he had lodged in October 2014. The company claimed that the reason for not following up on the grievance was that the complainant did not provided further clarification in relation to his grievance. However, he states it is clear from his written document that he accused his manager of discriminatory behaviour. He alleges that It is a duty of employer to investigate the matter and not limit the investigation to just seeking clarification from him.
•  On 28^th of May 2015 company doctor recommended mediation between HR and our member. Company ignored that recommendation and instead reopened the investigation and called him to investigation meeting. The complainant states that that shows lack of sensitiveness and fairness.
• He was not afforded fair procedures and the whole process was flawed.

Decision:

Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The burden of proof is on the Respondent to show that the dismissal was fair in all the circumstances.