ADJ-00006685

Worker

Employer

Parties

A Production Operator

A Multinational

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009072-001

13/01/2017

The worker worked as a production operator in an organisation that manufactures ophthalmic lenses. She received counselling in relation to timekeeping and attendance on 21 February 2013 and again on 10 June 2014 with regard to poor attendance. She was absent for a number of months in 2015 owing to a serious medical illness. On 31 March 2016 the worker received a verbal warning in relation to absence from January 2016. This warning was not appealed at the time. On 17 June 2016 the worker received a written warning in relation to her absence. On 27 June 2016 she appealed the written warning and on 28^th June 2016 she appealed the verbal warning. Neither appeals were successful.

The worker advised that she was happy to proceed unrepresented.

She advised that in 2015 she had surgery for cancer of the bowel and advised that prior to this surgery she had been ill for approximately 1.5 years but that she is cancer-free now. She had been represented by SIPTU at the meetings.

In March 2016 she received a verbal warning and in June 2016 she received a written warning in relation to absence owing to various different illnesses. As most of these absences were accompanied by a doctor’s cert, she claimed it was unfair to receive such warnings as they were certified. She did not think of appealing the verbal warning issued in March but subsequently appealed both it and the written warning in June 2016.

The employer advised that they had been extremely fair with the worker. She had been counselled on (21^st February 2013 and 10^th June 2014 and had also been advised that further incidents would result in disciplinary action. When she was absent in 2015 the employer advised that they supported her throughout this time and that no absence up to December 2015 was taken into consideration with regard to the verbal warning she received on 31 March 2016.   This verbal warning related to absence of 29 days absence – 26 certified, 3 uncertified and it represented a 46.77% level of absence compared to the company average of 2.69%.   She was advised that she could appeal it but did not, at that stage. However, her absence failed to improve and on 17 June 2016 she was issued with a written warning in relation to one late and seven days absence (2 incidents) which was 14.3% level of absence since the verbal had been issued.

All her absences were for a variety of separate unrelated absences including chest infection, chest pain, shoulder pain, medical illness and gastroenteritis. The worker appealed the written warning on 27 June and on 28^th June appealed the verbal warning but the employer’s decision was not overturned.

The company argued that the worker is not arguing against the record of her absenteeism but rather is disputing the fairness in disciplining her for absences which were certified. However, they put forward that it a corrective measure to bring about required standards and that the result was the worker’s absence did improve for which she achieved an attendance award and that her absence is currently running at a rate of 0.15%. They also outlined that not attending work on a regular basis is a breach of contract as it interferes with a person ability to fulfil their contract of employment. The company also put forward that such action is provided for in the company union agreement and that the worker had been represented during the disciplinary meetings by SIPTU and that she was afforded fair procedure in line with their policy.

Case law was also referenced to support the company’s position namely :

International Sports Co Ltd v Thomson [1980] IRL340 held that an employer justified terminating an employee for short-term persistent absence

Money and others v Rowntree Mackintosh Ltd UD 473 474 475 478/1980 held that while an employee might be without blame, intermittent absence over a number of years amounts to unacceptable level of absenteeism.

Behan v An Post Ltd UD 320/2006 the Tribunal considered an employee’s dismissal fair on the basis of their incapacity to fulfil their contract of employment.

The facts of this case are not in dispute - the worker had been counselled in 2013 and 2014 for absence and was issued a verbal and written warning in 2016 for absence related to their respective period which had been appealed but not overturned.

Having given careful consideration to the oral and written submissions from both the company and the worker, I find no reason to overturn this decision as the company followed their company union procedure that meets the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000. I would recommend though that, while it was not in dispute by the worker as details of incidents were attached in a chart; going forward the company should ensure that all warnings issued to employees for absence, should detail on the warning, the dates and number of incidents of absence that the warning relates to, as well as the reason for the absence and whether it was certified or uncertified.  

I declare the dispute referred by the Worker is not well founded and that it should fail. I would recommend though that, while it was not in dispute by the worker as details of incidents were attached in a chart; going forward the company should ensure that all warnings issued to employees for absence, should detail on the warning, the dates and number of incidents of absence that the warning relates to, as well as the reason for the absence and whether it was certified or uncertified.  

Appeal of warnings, certified illness, Industrial Relations Act