ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000268

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

Date of Adjudication Hearing: 07/03/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant has been working as a General Operative with the respondent since 1993. The claimant attended a return to work interview on the 17^th.June 2015 having been absent for 2 days with a stomach bug.The claimant was invited to attend a meeting on the 30^th.June to discuss her absenteeism and was issued with a verbal warning.The claimant raised the matter of her serious medical condition at the meeting – the Supervisor undertook to discuss this with HR but when the meeting was resumed the following day the claimant was issued with a verbal warning.She appealed the sanction but her appeal was not upheld.The union contended the sanction was unjust and unfair.The respondent had failed to take account of the claimants genuine medical complaint and the union gave an account and explanation for the claimant’s absences at issue.It was advanced that there was no evidence of a recurring pattern and it was clear from the return to work interview that there was no concern at that time of a recurring pattern.In Nov. 2014, medical investigations revealed that the claimant had suffered a mild stroke – accounting for 3 weeks of her absence in 2014.Prior to this there had been no concerns about the claimant’s work attendance.The respondent rushed ahead with the verbal warning despite the claimants request for consideration to be given to a report she could obtain from her doctor.It was submitted that it was clear from the medical reports furnished to the respondent that the absence were due to the claimant’s medical condition-it was contended that the respondent had failed to carry out a proper investigation and the claimant had been denied her right o natural justice when she was informed prior to the disciplinary hearing that she would be issued with verbal warning.It was advanced that the claimant was very distressed by the warning and she asked for the warning to be rescinded.

Respondent’s Submission and Presentation:

The respondent set out a chronology of the exchanges with the claimant about her absences and it was submitted that due consideration had been given to a number of her infringements owing to the claimant’s medical condition.The claimant had appealed the warning but the appeal was not upheld.It had been concluded by the respondent that the absence days showed a pattern of absences at the beginning of the week and that consequently a warning was warranted.It was contended that any absence owing to the claimant’s medical condition was not considered .The respondent asserted that the verbal warning was justified on the basis of the claimant’s absence pattern and as a deterrent for future behaviour.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Recommendation

Was the sanction of a verbal warning appropriate and fair

Legislation involved and requirements of legislation:

Industrial Relations Acts 1969-1990

Recommendation

I have reviewed the evidence presented at the hearing and noted in particular the claimant’s compelling account of the disciplinary meeting – it supports the union’s contention that the claimant was denied natural justice as the decision to issue a warning had been taken prior to the meeting.This breaches the most fundamental principles of natural justice and abjectly failed to adhere to the provisions of SI146/2000.Additionally , the respondent failed to observe the counselling provisions of its own disciplinary procedures.In the circumstances , I find that the issuing of a warning was unfair and unjust and I require the respondent to rescind the warning from the claimant’s record.

Dated:   17 May 2016