Complainant

Respondent

Parties

A Customer Assistant

A Large Store

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-00009826-001

21/02/2017

On 21 February, 2017, the Claimant lodged an appeal of a Verbal warning before the WRC. The Employer denied the claim.

The Claimant is employed as a Customer Assistant since 2002 on a 37.5 hr week .On 16 July, 2016, the claimant attended an Attendance Review Meeting regarding absence due to sick leave with her Manager. This was followed by a series of meetings which culminated in the application of a verbal warning issued on 23 December, 2016.

The Claimant appealed the sanction on December 30, 2016 and attended the Appeal hearing on 27 January, 2017. The sanction was upheld. The Claimant was represented throughout the process and referred her case to the WRC seeking that the warning be expunged from her file.

The Union on behalf of the claimant submitted that the sanction was unwarranted, fundamentally flawed   and the Company’s decision was based on incorrect information. The Claimant contended that her 13.4% days of absence were all supported by medical certificates. She also contended that she had not been placed on notice that her sick leave was putting her at risk of Disciplinary sanction.

The Union also raised a number of procedural flaws in how the procedures were conducted. Meetings had been cancelled and re-arranged, which was unsettling and letters received were undated .The Claimant had a difficulty attending a review meeting in September, in the absence of Union Representation and this resulted in an altercation between one of the Managers, which in turn became the subject of an official grievance.

The Claimant contended that the first time she was advised of the potential for Disciplinary action in respect of her sick leave was on 5 October, 2016.The claimant submitted that she was confused as her attendance rate had improved in the latter end of the year, but the company persisted in advancing down the Disciplinary route .There was a dispute regarding the number of absences recorded at the Disciplinary meeting. The Claimant stated that she had two absences, while the company stated there were three. At the Disciplinary outcome meeting on December 23, the claimant learned that her entire sick leave record for 2016 was taken into account for Disciplinary purposes .She was not aware that this was under consideration.

The Union contended that what should have been a simple process concluded as a flawed process. The matter under investigation was 2 occasions of absence and was not complex. Yet, the matters altered between absence and alleged breach of contract and changed from meeting to meeting .The Union submitted that the decision on the verbal warning was not made locally at the store but was part of a wider Store Policy and was issued from the Head Quarters of the company, which in turn was based on incorrect information .The Union sought that the warning be expunged and completely removed from the claimants file.

The Employer submitted that the sanction of verbal warning was warranted in the circumstances and the company had acted fairly and reasonably in this case. The claimant had a high absence level which was grades at 13.04% in the 26 weeks prior to receiving her warning.

The claimant had worked at the store since October 29, 2002 as General Assistant on a 37.5 hr week. Following a period of sick leave in July, 2016, the company held a welfare meeting with the claimant to ascertain ways in which she could be supported .At that meeting the prospect of Disciplinary action in the face of non-improvement was mentioned by the company.

A further period of sick leave followed in September 2016 which was followed by an attendance review meeting on September, 14.The Company offered to relocate the claimant to an area of work where her back condition would not be aggravated. This was refused.

There was a delay in follow up to this meeting   until 5 October due to a combination of store audit and the claimant’s pursuance of representation. At this meeting, the Personnel Officer outlined the impact that the claimant’s absence had on the store and that if the disciplinary route followed, the claimant would be given the opportunity to provide any evidence in relation to her absences.

The Company held two investigation meetings into the claimant’s sick leave on 14 and 27 October which culminated in a recommendation that the issue was recommended to be put forward for a Disciplinary hearing .This was contested by the Union on behalf of the claimant.

When the Disciplinary meeting was held on 3 December, the claimant clarified that her episodes of sick leave totalled two and not three as cited. She also submitted that both absences were certified by a Doctor.

The claimant was advised that a verbal warning due to her high absence levels on 23 December, 2016.An appeal followed and was heard on 27 January, 2017.This upheld the sanction of verbal warning.

The Employer submitted that the company operates a consistent and practiced Absence Policy with a stated purpose of

“ monitor levels of absence across all colleagues seeking ways to reduce absence where it is deemed too high”

The Store average stood at 1.05% yet he claimant had recorded 5.58% for the year 2016 and 13.04% in a 26 week period.

The Employer contended that the Company had supported the claimant in seeking to find ways to reduce her sick leave .The company held a full and fair investigation into the matter and offered the claimant the opportunity to input into the report before the sanction of verbal warning was applied.

The Claimant exercised her right to appeal the warning where she was represented throughout .The Appeals Manager reviewed the claimants absence file and interviewed all the relevant people to the claim .The appeal was grounded on 11 points .

The Employer stated that the claimants sick leave record had dramatically improved following the corrective action taken by the company .In the 26 week post sanction, the claimant had an absence level of 1.07%, in line with the store average.

The Employer submitted that the issuing of the verbal warning was proportionate in all circumstances. The company operates in a competitive retail market and the area of absence management has been pivotal in reducing costs.

The Claimant was supported in the management of her sick leave by being given an opportunity to explain her absence ,offered a change in hours and an instore relocation ,which were not accepted by the claimant in the case .The Claimant’s absence levels were such that she was not fulfilling the terms of her contract ,which was upheld on appeal .

The Employer sought that the claim be dismissed.

I have carefully considered both oral and written submissions presented .The issue before me is an appeal of a verbal warning. This warning has now expired. A number of key points were, however raised at hearing.

I was struck by the claimant’s viewpoint that the matter of her sick leave had not been managed in this way when she had had longer absences in the intervening years :2015 ,51% and 2014 35.35%. I found some guidance for this when I considered the Employers Sickness policy at Section 11;Company Doctor where the Company Doctor is identified as the “ Go To “ practitioner to address

1 Accidents at Work, where absence is greater than 3 days.

2 Long term illness ,without a return to work date

3 All cases where a colleague is absent for a period of three months in succession.

Therefore, it became clear to me that the claimant’s sick leave was managed differently in 2016 as her absences did not fall into the above criteria or indeed the criteria for long term absence. However, I did establish that the claimant had had a Road Traffic Accident from which there were still residual illness issues.

The Claimant confirmed that she had not placed the residual influence of her previous road traffic accident on her ongoing health into the deliberative process of attendance management .The Claimant presented as very apprehensive in respect of a forthcoming Medical procedure and she stated that she feared this was going to put her back into a conflict situation with her employer.

The Employer made an extensive submission on the company imperative on the proper management of sick leave and that the store was being compared to other stores .However, it was clear to me that the company held a strong belief that they had acted fairly and reasonably, which was disputed by the complainant.

I have considered the Company Sick leave Policy, 2013 and noted that there was provision for a 12 week paid sick leave .I appreciate that this benefit is very important to the parties and absence levels must be managed.

I found many of the documents submitted by the parties to be difficult to comprehend due to a variety of handwritten scripts with multiple corrections and redactions. I would have preferred to have had typed records for optimal clarity and comprehension purposes.

I found that the Employer was clearly working under a company imperative to manage sick leave in 2016 .However, it is important to capture an Individuals circumstances in the face of such a large agenda. I found some disparity on the documents relied on by the parties, The Employers document on Terms of Employment read to me as an Advisory document for management purposes, while the document submitted by the claimant read as an operational document for employees .This may go some way to explaining the disparity in how both parties addressed the period of the claimant’s sick leave from April 2016 onwards.

If I rely on Appendix 27 of the Claimants documents, I find “ Supporting Your Attendance” where the action plan following an Attendance Review Meeting is highlighted as :

1 To take no further action

2 To issue next steps in order to support an improvement in attendance

3 To move to Disciplinary Meeting.

If I rely on the Employer booklet at Appendix 1, I cannot find a reference to this Action Plan. However, I established the following :

1 Ascertain that a Colleague is fit and well to return to work

2 Integrate the Colleague back into the workplace

3 Confirm that procedures for absence notification had been adhered to.

I considered the notes on the key meetings in this case on 16 July, 14 September, 5 October 2016,

It was not clear to me that a defined Action plan had crystallised on the conclusion of these meetings for either party. I do not accept the claimant’s contention that she was not aware that Disciplinary Procedures were a potential outcome as it was indented in all the recorded Attendance Meetings .

I noted that the Employer committed to passing attendance records to the claimant on 3 November, 2016, yet these were not exchanged. The verbal warning was issued for an absence rate of 17 days, 4 episodes basis. This was outside the 26 week reference period .This was amended on appeal to 13 days and a 3 episode basis, yet the sanction was not amended in the face of that mistaken count .

It was clear to me that the official log of attendance and non attendance was a composite part of the Employer deliberative process, but this does not appear to have been passed to the claimant as part of the deliberative process in advance of the Disciplinary sanction.

I found the management of the Disciplinary procedure to be both disjointed and lacking in a composite Investigative Report. I believe that this disadvantaged the claimant and was a significant omission .I would have expected some regard for the variance in the core absence records on both the Disciplinary and Appeal stages.

I noted that there was a considerable variation in the store to store % absence levels in the area .It was clear that the Store at the centre of this case had the second lowest rate of the 5 stores submitted.

It is essential that the case made by an Employer to an Employee is underpinned by accuracy, consistency and properly prepared documents to arrive at an Equality of Arms and Fair Procedures footing. I found that the Claimant was not on sufficient notice of just how serious the company regarded her absences. I accept that the prospect of a potential for utilisation of Disciplinary procedures was mentioned and indented on the attendance review forms but it did not form part of an action plan .

I note in particular the record of October 5 Meeting which recorded three periods of absence, where the action points and final outcome of the 30 minute meeting were not logged. The announcement of an Investigation some seven days later was unusual .In particular, I found the Investigators reference to the meeting not being about absence, which was remarked as improving but about fulfilling her contract of employment to be in contrast with the purpose stated in the letter of Invitation :

This meeting is to obtain information concerning your current unacceptable attendance levels, details of which were discussed with you in your attendance review.

I find that this demonstrated a certain pre determination of the issues, given that information was already in the hands of the Employer and the Investigation Report was not circulated.

In conclusion, I find that the Employer invested heavily in the target to reduce sick leave at the site, in doing so, I find that they missed the unique circumstances of this Individual worker, whose leave was medically certified.

I note that the claimant raised a grievance during the course of this case , the results of which were not relied on by either party .

I note that the claimant raised a grievance during the course of this case , the results of which were not relied on by either party .

Recommendation:

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

The verbal warning in this case has now expired . I see little value in recording it as expunged .The Employer has evaluated the claimant’s current attendance record as satisfactory .However , the claimant has outlined she is currently planning another medical procedure and is anxious that she will come into conflict again on the question of her sick leave .

The Claimant is a long standing employee; I recommend that the Claimant benefits from the support of the Occupational Health Service run by the Company to advice on her future sick leave requirements.

I also recommend that the parties engage within a four week period of this recommendation to identify and agree a Joint Action Plan to address the forthcoming planned leave, taking account of the needs of the claimant and the business and to avoid an escalation to the utilisation of the Disciplinary procedure.

Appeal of a Verbal Warning