ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000552

Complaints/Dispute for Resolution:

Date of Adjudication Hearing: 23/02/2016 and 13/04/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1946 and Section 6 of the Payment of Wages Act 1991, following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute. The following complaints/disputes only were heard by me on 23/02/2016:

CA-00000826-001andCA-00000826-002.                                                                                                            The following complaint/dispute was heard by me on 13/04/2016:                                                                    

CA-00001783-001. 

Complainant’s Submission and Presentation:

CA-00000826-001 and CA-00000826-002.

The complainant is employed as an Emergency Medical Technician since 2008. An issue occurred in March 2015 and following a disciplinary process and appeal, he suffered a deduction of one week’s pay and a verbal warning. The complainant submits that the respondent failed to follow procedures correctly and that the penalty was unfair and harsh in the circumstances. He referred the dispute under Section 13 of the Industrial Relations Act 1946 and Section 6 of the Payment of Wages Act 1991.

In February 2015, the complainant was involved in a car crash which necessitated him in being on sick leave for 4 weeks. On 15^th March 2015, during his sick leave period he attended as a volunteer with the Order of Malta at a public event. He returned to work on 24^th March 2015 and was confronted on 27^th March by his supervisor with photographs and the supervisor demanded an explanation. The complainant was intimidated by the supervisor’s manner and subsequently lodged a grievance in relation to what he perceived as the supervisor’s lack of respect and professionalism. The complainant attended a disciplinary meeting on 17^th April 2015, the outcome of which was that he was issued with a written warning and the deduction of a week’s pay. This was reduced on appeal to a verbal warning but the deduction of pay remained.   It is argued that the respondent breached the Payment of Wages Act by not providing the complainant with one week’s notice of the deduction. It is submitted that the respondent failed to consider the complainant’s grievance in a timely manner, given that it took some 5 months to complete the process.

It is argued that as the complainant did not have any previous warnings on his file, that the incident should have been dealt with in an informal counselling manner.  It is argued that the respondent failed to advise the complainant of his right to be represented at an early stage of the disciplinary process, that he was not given a written account of the precise nature of the complaint against him. The complainant had apologised for volunteering at a public event while out sick and assured that this would not happen again. It is argued that this was not taken into account.   It should be noted that the respondent deducted the full 39 hours in error, as the complainant was in receipt of illness benefit and the top up element was the maximum in the case of a legitimate deduction.

Respondent’s Submission and Presentation:

CA-00000826-001 and CA-00000826-002.

The Complainant was subject of a disciplinary sanction after he was found to have been on duty in a voluntary capacity carrying out paramedic duties while on certified sick leave with pay. It is argued that the full and proper procedures were utilised during the process. During the initial informal meeting to establish the facts, the Complainant’s behaviour towards a Manager was deemed not to be of the standard expected of an employee of the Service. Arising from this and the initial incident which gave rise to the meeting, the complainant was invited to attend a disciplinary meeting on 14^th April 2015. The complainant subsequently instigated a complaint against his manager. Both matters were kept separate. The disciplinary hearing took place on 17^th April 2015. The outcome was that as the complainant had admitted that he performed public duties elsewhere whilst on paid sick leave, and as he had contempt for his line manager (demonstrated through various actions including threatening him with a solicitor (which the complainant denied) and walking out of the meeting with the manager), he, the complainant was issued with a written warning and the benefits of the Sick Pay Scheme were removed retrospectively from 15/3/2015 to 23/3/2015. Following an appeal, the sanctions were reduced to a six month verbal warning and re-instatement of increment. The decision to withdraw the Sick Pay Scheme for the period of one week remained. The complainant’s grievance was heard on 7^th August 2015 and was not upheld. Following this, the conclusion of matters in relation to the March incidents, the deduction from payroll occurred in October, which was in line with payroll time schedules. It is acknowledged that there may have been an over deduction as the matter of social welfare was not taken into consideration and if this is the case the respondent will correct this error and refund the complainant.

CA-00001783-001.

The complainant’s request for annual leave for 25^th December 2015 was not approved due to the lack of available relief. On 25^th December 2015 management received a phone call from the ambulance base that the Work Planning Office had received a voice message post 10.00pm that the complainant was unwell and would not be reporting for duty on Christmas Day. Subsequently, the Paramedic Supervisor made contact with the complainant and informed him that he would be required to provide a medical certificate for that absence. The complainant informed his supervisor that he would not be doing so as he was not obliged to do so for an uncertified day of absence.   It is argued that it is normal practice in the employment, that should an employee request annual leave and subsequently report sick, a medical certificate would be required. It is further argued that the granting of sick pay is discretionary within the employment and had the complainant furnished the respondent with a medical certificate in this instance he would have been paid.

Decision:

Issues for Decision:

CA-00000826-001: Industrial Relations Acts - seeks sanction to be expunged, and for wages to be reinstated

CA-00000826-002: Payment of Wages Act 1991 -complaint re deduction of one week’s pay

CA-00001783-001: Payment of Wages Act 1991 – complaint re deduction of one day’s pay.

Decision:

CA-00000826-001 – I note the complainant undertook not to repeat the action and to adhere to the respondent’s attendance management policy. I note the difficulties which obviously exist between the complainant and his supervisor and this is something that should be addressed by the respondent in assisting the parties to work together. The very reasonable offer to “develop improved working relations” which was contained in the letter dated 10^th September 2015 from the Assistant Chief Ambulance Officer should be acted upon in this regard. I find that this is a dispute which escalated and resulted in sanctions which were disproportionate in the circumstances. The complainant should clearly indicate to management his commitment not to repeat any of his actions in relation to the incident, and in return that the respondent expunge the sanction and refund him the week’s pay deducted.

CA-00000826-002 – The complaint under the Payment of Wages Act 1991 has been dealt with under CA-00000826-001 and redress under both Acts is not appropriate.

CA-00001783-001.                                                                                                                                                                           Section 5 of the Act governs the criteria for deductions. Section 5 (1) is the relevant section as follows:

Dated:   6 July 2016