ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004336

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/04/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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).

CA-00006231-001

Unfair Dismissals Act 1977 - 2007

Background:

The claimant worked for the respondent from March 2013 until her dismissal in May 2016. The claimant worked a 39 hour week and was remunerated at a weekly rate of €592.

In November 2015, the claimant had accumulated an excessive number of absences which was deemed to be a breach of the respondents Attendance Policy, the result of which was the issuing of a verbal warning to the claimant.

In December 2015 was issued with a discussion sheet because of emails sent containing incorrect information and not demonstrating the quality of communication expected of Senior Advisors in their interaction with customers.

In January 2016, the claimant received a written warning for another occurrence of absenteeism.

In February 2016, the claimant was invited to an Investigation meeting to discuss a number work performance issues and following a Disciplinary Outcome meeting the claimant was issued with a final written warning and issued with a first P.I.P to help address specific issues.

In April 2016, the first P.I.P was reviewed and it was deemed that the claimant had failed to reach an acceptable standard. A second P.I.P was issued to the claimant to help her reach the required standard.

In May 2016, the second P.I.P was reviewed and it was deemed to have failed. At this point additional concerns were raised regarding the claimant’s performance.

Following the failure of the second P.I.P the claimant was invited to a disciplinary meeting, the result of which was to terminate the claimant’s employment.

Findings:

Both parties made written and verbal submissions at the hearing.

Having reviewed the evidence as presented at the hearing, I have made the following observations;

In deeming the second P.I.P to have failed, it was stated by the respondent that " At this point additional concerns were raised regarding the claimant’s performance". The respondent’s failure to provide the claimant with a P.I.P that would encompass all areas that they deemed needed improvement left the claimant at a distinct disadvantage. If the P.I.P targeted specific areas, then identifying additional areas which may have impacted the claimant’s performance without allowing the claimant the opportunity to address the "additional concerns" would not be in the interest of fair procedures.

I also find that the claimants work performance does not appear to have come into question until approximately 33 months after she began employment with the respondent. It stands to reason that if the claimants work performance and standards were not at an acceptable level, then there is a clear failing on the respondent’s part to identify and rectify that situation for a period of approximately 33 months.

I find that the respondent has held the claimant to a standard of written communication that it does not apply to itself. The Aim of Discussion Document dated, 17/12/2015, contains several grammatical errors and poor sentence structure.

I find that the respondent has a right to apply its attendance policy in accordance with the guidelines it has outlined.

Based on the evidence presented, I am making the following decision.

Recommendation

I find that the claimant was Unfairly dismissed, however the claimant contributed to her own dismissal by her attendance. The claimant was paid her notice in lieu.

I award the €2368 in compensation.

CA -000062341-002

Safety, Health &Welfare at Work Act 2005

The claimant worked for the respondent from March 2013 until her dismissal in May 2016. The claimant worked a 39 hour week and was remunerated at a weekly rate of €592.

The claimant submitted that on occasions especially during the winters she suffered from minor respiratory complaint. She was absent from work on three days in 2013, Friday 13 September.

Wednesday 30th September and Tuesday 17th December 2013. The claimant was also missing for part of a day on Friday 3rd January and Friday 7th February 2014.

The respondent issued her with a Verbal Warning under the Disciplinary Procedure for these absences accusing her of four incidents of absence over a six-month period since 13th September 2013.

The claimant submitted additional information that she as absent again at periods in 2014 January 2015 and again January 2016. The claimant was called to Disciplinary Hearing held on the 25th January 2016 where it was stated she had previously incurred 8 incidents for being absent from work over the past twelve months.

The claimant's representative stated that the written warning gave to the claimant on the 27th January 2016 that was, in fact, incorrect as the first two categories were outside the corrective action per the respondent’s own Policy. It was submitted that the respondent had no right to discriminate against the claimant because of a medical vulnerability or to make this the basis for her dismissal

The respondent submitted that they had at all time followed their attendance policy and they regretted that the claimant was penalized.

Findings

I cannot find a basis for penalisation in this case as the Respondent followed their attendance policy.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is not well founded and falls.

Dated:   1st February 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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