ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004146

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

Date of Adjudication Hearing: 08/12/2016

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 employed as an Operator with the respondent since 2000 and was aggrieved with being issued with a written warning on the 29^th.Oct. 2015 with respect to his attendance. The claimant had appealed the sanction through the company’s internal procedures but his appeal was not successful.

It was submitted that up until 2013, the claimant had an exemplary record apart from a “minor blotch” relating to an incident that took place 10 years ago .In 2012 he suffered an accident which still affected him and affects his attendance at work. While the warning had now expired the claimant was seeking to have it removed from his file as t would impact upon the “next inevitable occasion of absence”.

It was submitted that the warning had been triggered by a report from Occupational Health and the claimant had never seen the document – it was advanced that this in itself constituted unfair treatment and grounds for setting aside the warning. It was further submitted that during the course of the meeting at which the warning was issued, the manager referred to the fact that the claimant was involved in a civil law case pertaining to his injury and the claimant formed the view that it was inappropriate for the matter to be raised and that t was part of the reason the claimant received the warning. It was further submitted that the claimant was not invited to attend a disciplinary meeting – rendering the warning unfair on procedural grounds.

Respondent’s Submission and Presentation:

The respondent submitted the claimant‘s attendance record had been poor from the outset and had been the subject of counselling and warnings “for large parts of his career”. It was submitted that it was noteworthy that following 2 of these warnings an absence free period was recorded over 12 month periods but the pattern reoccurred following the expiry of the warnings. The respondent’s representative set out a chronology of the claimant’s absence prior to the issuing of the warning.

It was asserted that the claimant raised the matter of the personal injuries case at the meeting with Occupational Health on the 21^st.October .The respondent set out the employer’s concerns regarding the claimant’s attendance at a meeting on the 29^th.October – it was advanced that at that meeting the company emphasised how lenient they had been in accommodating the claimant over the years.

It was submitted that at the claimant’s appeal hearing the claimant acknowledged that his actions probably did warrant a warning but he contended that the level of warning was too severe. It was submitted that at the appeal hearing the company clarified that the warning was not based on a report from Occupational Health but was based on patterns of absence and related conduct. It was advanced that the company had been more than lenient and that there was no basis to overturn the sanction.

Recommendation

I have reviewed the evidence presented at the hearing and accept the respondent’s contention that they have been lenient with the claimant in the context of his sick leave record. However, I have concluded that the claimant was unaware until he attended the meeting on the 29^th.October that he was attending a disciplinary hearing - as a consequence, this process was procedurally flawed and contrary to the principles set out in SI 146/2000 which provide that employees should be made aware of the details of any allegations against them. In all of the circumstances, I am recommending that the sanction be reduced to a verbal warning – in full and final settlement of this dispute.

Dated:   11^th April 2017