ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002298

Dispute for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background

The complainant had been employed by the respondent for about ten years. In 2015 he had a protracted period of sick leave due to a back injury and which contributed to a total absence of seventy-nine days.

The company sick pay scheme is discretionary and it undertook a review with the complainant of his sick leave absences back to 2012 which totalled one hundred and seventy four days. He has had eight days to date in 2016.

Following a review of his record within the company procedures the sanction was that he would not be eligible for the sick pay scheme for one year.

The complainant made an appeal to the WRC.

Complainant’s Submission and Presentation:

On his return to work form his 2015 sick leave absence the complainant was invited to attend an investigation meting with his line manager. The complainant explained the reasons for his various absences and also said he needed manual handling training to prevent future back injury.

Following this the matter was moved to a disciplinary level in line with the company’s procedures. In the course of this he attributed his back pain to the onerous nature of his duties in the company.

The outcome of this was that he was removed from the sick pay scheme.

His appeal against this was unsuccessful.

The company handbook says that the company has the right to withhold sick pay in the following circumstances; if the absence is not genuine, if the worker does anything to make the illness or injury worse, or the injury has been caused by the worker. The complainant says that pone of these apply.

He also says that the sanction imposed is not within the right of the Disciplinary Manager to apply. There is no sanction of ‘removal from the sick pay scheme’.

Finally, the complainant says that the only period of absence referred to in the letter of sanction was that in 2015. (Further grounds were stated as part of his appeal).

Respondent’s Submission and Presentation:

The company says that it fully complied with all procedural requirements. An attendance review meeting took place on September 23^rd 2015 at which the complainant was represented by his union. He was told that the meeting was an investigation into his attendance. There was a discussion about his back pain and in response to a question as to what he was doing to ameliorate the situation he said that he had changed his hours and was not doing work with heavy lifting.

This was followed by an outcome meeting on September 28^th at which he was told the matter would go to a disciplinary hearing. The notice of that meeting stated that its purpose was ‘to discuss your unsatisfactory attendance, details of which include what was discussed at the investigation meeting’. This embraced not just 2015 but previous years.

The disciplinary hearing took place on October 5^th of which minutes were provided and the outcome meeting took place on the 16^th.

Following this the company issued a letter stating that he would be removed from the sick pay scheme for the duration of 2016. While the letter did only specifically refer to the 2015 absence the previous years’ absence were taken into account.

It required ‘immediate and sustained improvement’ in the absence of which further disciplinary actions might follow. He was advised of his right to appeal and he did so, outlining six grounds of appeal; including the fact that the letter referred only to the 2015 absences, the lack of manual handling training, the sanction etc,. This was heard on November 5^th and the detailed finding of the adjudicator were issued on December 9^th.

He gave a detailed statement of his reasons for upholding the sanction

Conclusions and Findings

I have considered all the relevant evidence written and oral that was laid before me both prior to and at the hearing.

Normally cases such as this are decided on the basis of some sort of generalised, equitable solution which weighs the rights of both parties and recommends a balanced, often mutually acceptable outcome (for which the former Rights Commissioner service was much appreciated).

This case differs in some ways from that approach in that there was something of a technical dispute as to the company’s rights to apply the specific sanction of suspension from the sick pay scheme.

On the one hand the complainant submitted that the company handbook specified the circumstances in which the sick pay scheme may be withdrawn (outlined above). It does not appear that these grounds were relied on by the respondent.

On the other hand the company says that the scheme is discretionary and payment may be withheld. This is also correct.

It was also part of the appeal decision that the sanction was for absence, ‘regardless of the cause’.

This is somewhat disingenuous. The entire process from the first investigation meeting focussed on the complainant’s sick leave record, and understandably so, it was quite substantial.

To provide some balance to this, it is not the only disingenuousness in the case. The complainant appealed on the basis that the letter of sanction only referred to 2015 but confirmed in evidence to the hearing that his full sick leave record back to 2012 had been fully discussed. While he was fully aware that this was the case he based his appeal on the fact that this longer term of absence was not specifically referred to in the letter of sanction.

He had been told in the letter convening the disciplinary meeting that it was to discuss

‘your unsatisfactory attendance, details of which include what was discussed at the investigation meeting’

The record of that meeting shows that details were provided of all absence back to 2012.

Elsewhere the respondent confirmed that the sanction was for ‘misconduct’, which was a proper response to;

‘Continued levels of attendance at work, in the absence of mitigating circumstances could lead to disciplinary action being taken up to and including dismissal.’

The respondent would presumably argue that the sanction in this case falls within the phrase ‘up to and including dismissal’.

In fact, it may not. ‘Up to and including dismissal’ would generally be taken to refer to the cascade of oral and written warnings etc. It does not necessarily permit penalties, or other sanctions involving loss of benefits (although it is hard to think of a lawful example).

Clearly there are some contradictions or inconsistencies in the company’s policies.

However, things are sufficiently litigious in the workplace without bringing principles of statutory interpretation to bear on company handbooks and absence policies.

The company operates in a unionised environment and the process was very fair at all stages.

I do not think it would be equitable to deny the company the right to take either remedial or disciplinary action in circumstances where an employee’s attendance is very bad, as it was in this case; a total of one hundred and seventy four and a half days in a four year period.

Indeed as sanctions for misconduct go (and leaving aside my reservation as to whether this falls properly within that range of sanctions as normally understood) it is relatively mild. Indeed a more formal warning might have greater adverse implications for the complainant in the longer term.

On balance, therefore I consider the sanction to be warranted and proportionate.

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.

For the reasons stated above I dismiss the appeal.

I recommend that the company initiate a process in consultation with the union to resolve the discrepancies in the sick leave policy as to the precise circumstances when sanctions may be invoked and the range of appropriate sanctions.

Dated:   18/11/2016