ADJ-00006687

Complainant

Respondent

Parties

A General Operative

A Retail Company

Act

Dispute Reference No.

Date of Receipt

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

CA-00009113-001

16/01/2017

This is an   appeal of a Disciplinary Sanction imposed on 24 August, 2016.

The Union on behalf of the claimant sought to appeal a 12 month   verbal warning and a removal from the company sick leave scheme imposed for   his alleged level of absenteeism.

The Claimant commenced work as a General Operative in May 2003 and his duties included manual   handling , picking , stacking , loading and unloading in the course of his   work as a General Operative .

In 2010, the claimant suffered a very serious work related   accident where he badly injured his back and hips .He had two hip surgeries   and the problem caused him intermittent absence from work. The claimant was   given a 12 month verbal warning and removed from the sick pay policy for 12   months in August; 2016.This was appealed internally and was not disturbed.

The Union argued that the sanction was too severe, as the   pre disciplinary procedures of counselling prior to formal disciplinary   action being taken had not been utilised .The Union submitted that the   claimant had been denied notification of improvement needed in advance and   had actually sustained an improvement in his attendance.

The Union submitted   the sick leave record for the years   2014-2016

2014 54.5 Shifts   lost

2015 13 shifts lost

2016 9 shifts lost

The Union contended that days of absence covered by   Medical certificate should be removed from the calculations of the   absenteeism as medical direction rendered the attendance at work as impossible.

The Union submitted that the claimant had formed the view   that his employer was deliberately targeting him for termination of his   employment due to his disability .The Union stated that the employer   initiated the next step of the Disciplinary Procedure in February 2017 and   the claimant now had a 12 month written warning on his record.

The Employer operates a large wholesale distribution and   retail business, employing 1100 people. The Employers Representative ,IBEC   ,described the company as highly Unionised .The claimant worked an average of   3.5 x 12 hour rosters over 24 hour periods on a Monday to Sunday basis .

The claimant has had a history of serious and persistent   attendance problems with the company. In the previous three years, his   absence level had been measured at 16% , four times higher than the overall   Depot absence rate .The employer submitted that from the previous 10 years,   the claimant had only 7 years where his attendance record scored less than 100 on the Bradford factor .The   employer submitted details of both the company

Attendance Policy

Disciplinary Procedure

In particular , attention was drawn to a clause from the   Attendance Policy

“…….the Employer is committed towards treating all   employees who are ill in an understanding, fair and reasonable manner. Even so,   the Company cannot bear the burden of excessive absence. Accordingly, it   should be noted that excessive absenteeism may lead to disciplinary action   including debarment from the sick pay scheme.”

The Employer submitted an extensive background and detail   on the context and background to the imposition of the verbal warning on 24, August,   2016.

1 The events subject of the verbal warning encompassed a   two year period resulting from a serious and persistent attendance problem. The   claimant had been counselled for absence on 26 January 2015, but refused to   sign the record.

2 The claimant had previously been imposed with a   disciplinary sanction in June 2014 for attendance difficulties, which was   addressed at the LRC and varied to a Counselling approach, by agreement.

3 The claimant had an unsatisfactory 12 month rolling   absence record which had been flagged by his Manager in April 2016, without improvement.

4 The claimant appealed the verbal warning and removal   from the company sick pay scheme on 7 September, 2016 and the sanction was   upheld on 21 September, 2016.The claimant recorded another four periods of   absence and received a written warning on 8 February, 2017, which he had not appealed.

The employer contended that there was sufficient   provision detailed within the company   procedures to permit the imposition of the sanctions as applied in August   2016 .The Employer quoted case law in relation to Unfair Dismissal cases, where conduct   and capability grounds for dismissal were found to be fair grounds for   dismissal .The Employer impressed on the hearing that the company sought to   maximise every opportunity for the claimant to register improvements on his   sick leave record but took issue when the Union and the claimant both argued   that the absences were justified   through either accidents or illnesses .

The employer submitted that the claimants absences had a   high negative impact on the running of   the business .The claimant had also   been certified as fully fit to return   to work by a Medical Practitioner in   the aftermath of each of the reported accidents at work .

The employer submitted that the company had acted in a   fair and reasonable manner and in accordance with the Company /Union   agreement whereby it was accepted that Individual cases of sick leave could   be addressed. The company operated a very beneficial sick leave scheme The   company was troubled by the frequency and nature of the absences and contended   that Disciplinary action was justified .The   company had paid the claimant €80,000 in sick pay during the course of   his employment .

1 The claimants attendance pattern resulted in   disciplinary procedures

2 Prior to taking the action, the company made a number of   attempts to draw the claimants attention to his high level of absence

3 Fair Procedures were afforded

4 The Employer acted in accordance with the relevant procedures.

The matter of the February 2017 written warning was not   before the hearing.

I have given careful consideration to both parties’   submissions in this case. From the outset, I was struck by the   benevolence of the company scheme pay scheme .The employer had a clear   understanding that the Union had agreed , in the interest of preservation of   the scheme, that Individual issues would be addressed on a case by case basis   as they arose . This was not disputed.   I am satisfied that this is such an Individual instance.

Both parties accept that the claimant had sustained an   accident at work and residual issues had arisen intermittently .However, the   employer made a very strong submission in support of the claimant’s problem   attendance rate. I understand this genuine concern The claimant also made a   very strong submission that he needed the sick leave scheme to cover the   eventuality of falling ill. I understand this need also.

I cannot accept the   Union contention that certified sick leave should be excluded from the   records of sick leave. I have found that both parties are very troubled by   the circumstances of this case.

I have reflected on the “ double edged sanction “ imposed   in August 2016 .The claimant was placed on a verbal warning and cessation of   sick pay for a 12 month period on 24 August ,2016.This case arises on appeal   of that sanction alone . At the hearing, I probed as to why the employer   believed that a double sanction was necessary in this regard? And I noted   that the employer’s patience had clearly evaporated on this issue. However, I   found the dual sanction to be harsh.

I listened carefully as I heard both parties make   submissions on the number of accidents that the claimant had at work and   found that these circumstances may benefit from a separate, dedicated Health   and Safety/Occupational Health Physician Analysis.

I formed the view during the hearing that a root cause   analysis/risk assessment on the complainants capacity for his present work   might be of some benefit to the parties .I found some support from the   parties for this proposed building block in the case.

I have also reflected on the employers stated difficulty   in the claimant’s reliance on taking a full sick day to cover minor   procedures and I find that this concern is reasonable.

I have found that the employer upheld the company procedures   on the Management of Attendance and Disciplinary procedures; however, I have   found that insufficient weighting was placed on the claimants pre-disposition   to ill health arising from his earlier accidents and medical procedures. For   that reason alone, I have found the sanction disproportionate .There is merit   in the dispute before me.

Recommendation:

Section 13 of the Industrial   Relations Acts, 1969 requires that I make a recommendation in relation to the   dispute.

I do not find merit in   disturbing the almost spent verbal warning in this case, given that it has   been overtaken and not appealed . However, I would recommend that the parties   engage on the following potential for resolution of this dispute.

1 That the Employer commissions   an immediate Health and Safety assessment of the claimant’s current role and   recommendations to be implemented within a four to six week period.

2 That the claimant’s access to   the company sick leave scheme be restored from 24 February, 2017. This is to be   accompanied by mutual review by the parties at regular intervals over the next twelve months in accordance   with the joint agreement.

Appeal of   Disciplinary Sanction