ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000909
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001332-001 | 08/12/2015 |
Date of Adjudication Hearing: 11/08/2016
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 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.
Complainant’s Submission and Presentation:
The complainant was employed as an Optical Assistant on May 6th 2014. She enjoyed her work and worked hard. In August 2014 her hard work was rewarded with an award for excellent customer service. (The respondent is a franchise of a national brand and this was a national competition). The complainant was entitled to two, unpaid half hour breaks each day but from the outset of her employment she had difficulty getting them. Most of the time her breaks were delayed to an unacceptable time and sometimes were missed completely, mostly the afternoon break.
At one stage, as a result of management not scheduling break times correctly she had to provide medical certification on 26 Aug 2014 of her need to have the scheduled breaks scheduled and at the appropriate time. On Saturday, 15th of November, 2014 the shop was very busy and when she asked the coordinator on the day for her lunch break she was told to wait until later and told to keep working. However she did not get any afternoon break that day although previously when this happened she was allowed to go home 30 minutes earlier.
On this occasion when she asked if she could go home earlier than the normal finishing time she was refused permission to do so because the shop was still very busy. She finished her shift that day without the break.
A week later on Friday 21st an investigation was conducted by management into the incident on November 15th.
The complainant was called into the office on Tuesday 25th to confirm her version of the events and despite the fact that she had been at the loss of the breaks she left that meeting with a written warning. The complainant says that this was built on two alleged oral warnings (on November 10th and 15th) which she did not get. The first warning on November 27th 2014 stated that;
‘any missing of breaks is the staff member’s responsibility and no such time will be given in lieu unless exceptional circumstances. It is not required to take your allocated breaks exactly on time as this is not always possible, but every attempt should be made to either take those breaks or bring attention to a manager of the failure to take those allocated breaks.’
The final written warning followed on March 4th 2015 due to ‘patterns of absenteeism’. This arose following one missed day of work.
She was scheduled to be on duty on February 23rd, 2015, but on the previous Sunday afternoon she felt unwell and called a Manager to tell him that she intended to see her doctor on Monday and would not be able to come to work. She followed staff sickness protocol as required.
When she came to work the following day (February 24th) she had a meeting about the missed day.
This was the fifth sickness day’s absence since she started working in May 2014 and she was told by her manager that this was viewed as being ‘of major concern’.
She defended her position on the basis that all of the sickness was genuine and also contested an allegation that her sick days were associated with rostered days off. She explained that because she worked shifts and her schedule was so variable, we get days off assigned at random it might appear that way by accident. She offered to provide medical of the most recent absence but was told that this was unnecessary because a decision had been made against her.
On February 26th she was invited to a ‘formal investigation’ over concerns over patterns of absenteeism and on 27/02/14 this was followed by a disciplinary meeting.
A week later on March 3rd she was warned that action might be taken against her and this resulted in a Final written warning. She unsuccessfully appealed this decision on the March 9th and a week later informally met a Manager who explained that it weas a final warning that would remain active for twelve months.
On the March 14th she had a further meeting with a manager who set targets for her future attendance and was warned not to exceed one period of absence over the next six months.
It was at this time, March 2015 that she received top marks from the Franchisor company Internal Auditors/Mystery Shopper.
She fell ill again on the April 1st and was medically certified as unfit for work between April 1st and the 8th. She forwarded the certificate to work and got an acknowledgment that all documents were received and that there would be a meeting about this once when she returned to work.
That meeting took place on April 23rd and addressed the patterns of her ‘absenteeism’.
She was given a table that now showed seven incidents of absence, which included the certified week and one day April 20th where she became ill at work. She had asked her supervisor if she could go home few hours early due to very sudden and unexpected illness. It was agreed she could go home two and a half hours early, yet this was describes as 'a day of absence' by her manager.
She received the letter terminating her employment on April 27th 2015 after working all day that Monday. Once the shop closed and all other staff left home she was called in to the Manager’s office and dismissed due to ‘misconduct’.
She was not allowed to come and work her notice or say goodbye to colleagues.
Her contract entitled her to two months of notice but when she raised this during the final dismissal meeting on April 27th she was told that it did not apply to her. She was asked to leave a buzzer, uniform at work and clear her locker. She appealed the decision to dismiss her on the May 11th 2015 in writing but this was rejected.
Despite many applications and interviews she remains unemployed.
Respondent’s Submission and Presentation:
There was no appearance by the Respondent
Findings and Conclusion
I have carefully considered all the relevant submission that were laid before me both before and during the hearing. I am satisfied that the respondent was properly notified of the hearing and offered no reasonable explanation for the failure to attend.
Prior to the hearing the respondent made a written submission to the effect that the complaint was outside the time limits. This was on the basis that the dismissal was effected on 27th April 2015 with one week’s notice which would have brought it to May 4th. The complaint was received by the WRC on December 8th 2015. On this basis the complaint was received just over a month late.
However, the complainant produced a copy of her contract which shows that she was indeed entitled to two months notice once she exceeded six month’s service. While she was told that this did not apply to her I can see no basis why it does not on a plain reading of the contract. This would bring the effective state of the termination of her contract to June 26th which brings her complaint within the six months time limit.
Indeed since the termination of her employment, according to her direct evidence her former employer has actually paid her the balance of the notice due to her. This was confirmed to her in an email from A director on July 31st 2015.
Accordingly I find that her complaint is within jurisdiction.
As to the case itself, it has considerable merit.
At the start of the chain of events she appears to have been punished with a number of (disputed) warnings for raising the fact that she did not get her breaks. I am satisfied that she made genuine efforts to take her breaks and was prevented from doing so. She says that she was not in fact given the first two oral warnings, but in any event there was no basis for warning an employee over their failure to take a break, and even less for initiating a complaint about it.
The application of a first written warning over a missed break, for which it appears the company was mainly responsible, is disproportionate and inequitable.
The final written warning followed a one day absence which brought her total absence over the previous year to five days. This cannot be considered excessive and the company seems to have been influenced by its perceived conjunction of sick days and rostered time off.
This is a reasonable concern, subject to its being satisfactorily investigated and established by reference to some acceptable standard of proof. But on the basis of the facts in this case this should have been the start of the warnings process, rather than the end.
The fact that she was issued with this final warning and also told that one more absence in the following six months would result in disciplinary action, and knowing that she was on a final written warning, has all the appearance of what might loosely be described as a self fulfilling prophecy, i.e. a criterion with a high probability of adverse, indeed terminal consequences for the complainant. To establish such an unforgiving standard in respect of genuine illness regardless of the cause or justification is, on the facts in this case harsh to the point of being unfair.
To describe the pattern of absence as ‘placing an unacceptable burden on the business’ (Invitation to Disciplinary hearing, April 23rd 2015) might, had the respondent attended the hearing been further elaborated. In their absence it just sounds like hyperbole.
Finally it appears from the complainant’s submission that the appeal was heard by a person who had a very active role in the case in its earlier stages (issuing the final written warning). This does not meet the requirements of fair procedure and the appeal should have been heard by a person previously unconnected with the case. This can be difficult in a small business but not impossible. If there is to be an appeal it should be a fresh review of the decision by an independent party.
The complainant exhibited evidence of her efforts to gain alternative employment and I am satisfied that she has sought to mitigate her loss.
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.
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.
I uphold Complaint CA-00001332-001 and find that the complainant was unfairly dismissed. I award her €10,000 being approximately fourteen month’s salary less payments from the Department of Social Protection over the period.
Dated: 27th October 2016