Complainant

Respondent

Anonymised Parties

An Operative

A Retail Company

Representatives

Deirdre Canty , SIPTU

Peter O Shaughnessy , Regional Manager , IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00010788-001

12/04/2017

This is an appeal of a Written Warning applied to the claimant on 17 October, 2016.

The Claimant, an Operative, commenced work with the Respondent in January, 2014. He works a 39 hour week in return for €558.90 gross per week .The Claimant submitted his claim on 12 April, 2017, which appealed a written warning and his removal from the sick pay scheme for a period of 12 months .He contended that the majority of his absences were related to workplace injury, which he believed should not have attracted the sanction.

The Union outlined the background of the case on behalf of the claimant.

The Claimant suffered an eye injury in the workplace in 2014, which was resolved in a private case. On 23 December, 2015, the claimant sustained a shoulder injury at work .The Company met with the claimant on 12 October, 2016, regarding his absence record .This resulted in the application of a written warning and concurrent removal from the sick pay scheme for a period of 12 months .This was appeal and not disturbed on appeal.

Following referral of the claim to the WRC,the claimant had cause to have further sick leave , the majority attributable to injuries sustained at work and a final written warning was issued for a period of 12 months on 14 April, 2017.This was also appealed and not disturbed on appeal .

The Union submitted that the complainant was in genuine fear of imminent job loss and contested the company’s interpretation of the complainant’s situation where he was judged as making no effort to improve his absence record, “as if his injuries were a matter of attitude and not certified medical conditions”.

The Union sought the removal of the warnings based on attendance due to injury and the re-instatement of the sick pay scheme.

The Employer is based in wholesale distribution and employs 1,100 people in the South of Ireland. The Company disputed the claim. The Employer outline that the Company was highly Unionised and the claimant was entitled to be represented.

The Employer set out key excerpts from :

1 Company Attendance Policy

2 Companies Disciplinary Policy.

In outlining the background to the case, the Employer set out that the claimant had been counselled regarding his sick leave in May 2015, based on 4 instances, amounting to loss of 16 shifts. The matter was considered closed.

On November 29, 2015, the claimant received a verbal warning for his ongoing absence, which at the time consisted of two further instances of sick leave.

During a Disciplinary meeting to address his absence on 12 October, 2016, the claimant put forward a justification for his absence as workplace accidents .The Claimant had become eligible for paid sick leave in March 2016.

The Employer re –affirmed that the claimant had received a written warning dated 17 October, 2016.During the appeal process ,the claimant raised the connection between his sick leave and two separate workplace accidents .However, the company found that that on both occasions following these workplace incidents, he returned to work and was certified as being fully fit to resume normal duties .The Claimant had been medically reviewed and was approved to return to work on a graded basis from 14 February ,2016.

The written warning was upheld on appeal.

The Employer contended that the company had clearly identified in its own procedures that excessive absence may lead to disciplinary action .In the parallel Attendance Policy, it further noted that excessive absence may lead to debarment from the sick pay scheme.

The Employer referred to a suite of case law from

Reardon V St Vincent’s Hospital UD 74/1979

Behan V An Post     UD/320/2006

Dzierowska V Wincanton UD 7/2012

Which they contended permitted employer latitude in managing problem sick leave. The Company did not blame the claimant for his level of absence, but they believed they were compelled to manage the excessive absence levels under the Disciplinary procedure.

The Employer was dissatisfied with the claimant’s sick leave as it placed a high burden on the company and could not be expected to tolerate this indefinitely .The Employer argued that the warnings were applied in a procedurally fair manner.

1 The Claimants attendance pattern resulted in the disciplinary action.

2 The Company took precipitate action by alerting the claimant to his unacceptable levels of absence

3 Fair Procedures were afforded.

4 The Company behaved fairly and reasonably .He was informed of his nature of the complaint against him. He was afforded the right to representation .He was provided with a fair and impartial hearing in which to state his case .Representations on his behalf were considered .An Appeal mechanism was offered and actioned .

The Respondent sought that the claim be dismissed.

I have considered both parties presentations on this case. It is fair to say that both parties hold equally strong views in terms of their respective positions.

For the claimant, he contends that he has been the unfortunate recipient of workplace injuries ,the latest of which is subject to a Personal Injuries claim .He contends that these injuries have been contributory to his lower attendance rate at work . He confirmed that he had recorded a rate of 67 shift absences from his reception of the verbal warning in November 2015.

The Employer contended that they had adopted a proportionate and sequential approach to the extended record of sick leave. The Claimant had far exceeded the company target for sick leave .The Employer reflected on the double sanction applied to the claimant in October, 2016, which is the sole topic of this claim and submitted that perhaps a double sanction might warrant a review? During the course of the hearing the Employer submitted that new Department of Social Protection rules provide for a recoupment of benefit in the face of a Personal Injury at work settlement.

The sole claim before me is that of the claim lodged on 12 April 2017, concerning the application of the written warning of 17 October, 2016.

The topic of how the company treats sick pay paid during the life span of a Personal Injuries claim is not provided for in the attendance policy. I note that the claimant received 50% pay during the weeks associated with the work place accident referred to in December 2015.He also received basic pay for a number of weeks in July 2016 .I appreciate that this presents as a large cost to the Employer who is also committed to replacement costs during the absence . I found that the claimant did not appear to comprehend this aspect of the Employer case. I probed the involvement of an external Insurer Case Management of the case and found that it covered a course of Physiotherapy .

I accept that the Attendance Policy and the Disciplinary Policy were agreed with the Union. I also accept that the company has a very low record of employee debarment from the sick leave scheme.

I have considered the application of the written warning of October 17, 2016.I note that it referred to a cumulative absence of 89 shifts. However, I found that the claimant had already received a counselling and a verbal warning for 21 of those shifts .I found an insufficient weighting to past sanctions already spent. I also found the double sanction of 1 year written warning superimposed on a 1 year removal from the sick pay scheme to be overly ambitious by the company .

The purpose of a Disciplinary sanction is to anchor an improved performance .I can appreciate that a double sanction is hard to surmount for any worker .

I have found that at the root of the issue is a lack of clear instruction on how paid sick leave is managed in the case of an anticipated personal injuries claim .The Policy is silent on it .The Claimant contended that work related sick leave should be classified separately to ordinary paid sick leave, which should in turn prohibit his removal from the paid sick leave scheme. He confirmed that this was a personal view at the hearing.

I find that the double sanction of written warning and concurrent removal from the paid sick leave scheme in the face of an undisputed workplace injury (current at Personal Injury stage) to be disproportionate and not at one with the company Disciplinary Policy.

“ Disciplinary action will be taken where appropriate and that action will be commensurate with the infringement “

I find there is some merit in the Dispute.

Recommendation:

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

I recommend that the Employer revisits the sanction of written warning and concurrent sick pay debarment issued on 17 October 2016. In light of the prior application of Disciplinary sanction for a number of shifts in November 2015, I recommend that the Disciplinary Sanction be revised and reduced to that of a written warning.

I also recommend that the complainant be re-admitted to the sick pay scheme from October 17, 2016 with a strict caveat that all paid sick leave directly attributable to his workplace injury should be recouped by the company in the event that his Personal Injury claim is successful .

I recommend that in light of the lack of a clear delineation of how the company should the interface between potential Personal Injury Award recoupments in the case of paid sick leave, the Company and the Union should return to the table and agree a way forward for incorporation in the Company Attendance Policy.

Appeal of a Written Warning