ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00008198

Parties:

	Complainant	Respondent
Anonymised Parties	A General Operator	An Engineering Company

Representatives

Rachel Hartery SIPTU

Sophie Crosbie IBEC

Dispute:

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-00010931-001	24/04/2017

Date of Adjudication Hearing: 20/10/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This is a claim seeking an expungement of a Final Written Warning issued on 15 December, 2016 .

Summary of Complainant’s Case:

The Claimant has worked with his present employer for over 20 years. He works as a General Operator on a night shift on a 39 hr week basis.

The Union outlined the circumstances that surrounded the claim. The claimant needed two nights off to undertake a Family trip covering the period 8 December ,2016 and 12 December, 2016.He applied for the two annual leave nights on 5 December. He was granted one of the nights, the 8th but not the 12th.

The Claimant submitted that he had been informed that all leave requests for the last two weeks of December were being rejected. The Claimant told the Employer he was unhappy with this and notified them of his unavailability for work on the night of 11 December, 2016. He proceeded on the Family Trip.

He returned to work and attended a Disciplinary Hearing on 14 December to address his nonappearance at work on the night of 11 December. He attended a follow up meeting on the next day, where he was handed a letter which confirmed a Final Written Warning.

The Claimant lodged an appeal, which was heard by the same Manager who had decided the Disciplinary sanction on 20 December. The Sanction of Final Written Warning was upheld. The Claimant lodged another appeal, which was managed by another Manager and not disturbed. The Claimant lodged another appeal and this was heard by a more senior manager on January23, 2017 and rejected.

The Union wrote to the Employer on 13 February, 2017 following up on a further request for an appeal. The Union was informed that the matter had been exhausted. The Claim was referred to the WRC on 24 April 2017. The Claimant sought that the final written warning be removed from his file.

The Union contended that the final written warning was excessive given the claimants long and unblemished service. They argued that the procedures adopted by the company were flawed.

The Claimant was party to a Disciplinary Meeting, without notice. He was not given notes of the meeting and found himself in a Disciplinary outcome meeting without an understanding of the process.

The Union outlined that the Appeal process was flawed based on the first two Appeals Decision makers were party to the Original Decision to impose the sanction of Final written warning. The Union argued that the Appeals hearings were not heard correctly. All the appeals focused on the offense and not the penalty imposed.

The Union submitted that the claimant had not been afforded fair and due process. The Claimant took issue that uninterrupted leave had been granted to one of his colleagues, yet his leave request was denied.

Summary of Employer’s Case:

The Employer is an Engineering company employing 94 employees and it operates a closed shop with SIPTU. The Employer rejected the claim.

The Claimant made application for two days’ annual leave on 5 December, 2016.The Claimants supervisor spoke to him the next day and sanctioned the first day and not the second request, with an explanation that all annual leave for the last two weeks of December was being rejected. The Claimant indicated his intention to take the matter up with the Production Manager and asked that his Supervisor would convey the message. This was done.

Later that morning at 10.18 hours, the claimant rang the Supervisor again and stated that he had not heard from the Production Manager and had made his plans for the leave and would be unavailable for the night of 11 December. The Supervisor re-affirmed that the leave request for that night had not been approved.

The Production Manager and the Claimant had a further discussion on Friday, December 9. The leave request was not granted and the claimant informed the Production Manager that he would be unavailable for work on the Sunday Night. Another employee also had his leave request turned down causing him to have to cancel flights. The Claimant was recorded as a no show on the night of 11 December.

The Claimant was approached by his Supervisor on his return to work and questioned the claimant on his no show. The Claimant took issue with the approached adopted when he first applied for he leaves. The Supervisor sought to explain that he was faced with a high number of applicants for leave and he had 20 forms already on his desk at that time. Annual leave was cancelled across the plant for the last two weeks in December. Only leave booked well in advance had been granted.

The Company held a Disciplinary Hearing on 14 December, where the claimant was accompanied by his Union Rep. The Claimant did not avail of the opportunity afforded him to speak at the meeting. The Claimant was issued with a Final Written Warning.

The Claimant appealed the matter through the grievance procedure and several appeals were held, which were rejected.

On 27 January ,2017, the Employer indicated that they were prepared to hear a further appeal at a Stage 4 process. However, the matter was appealed externally to the WRC.

The Employer submitted that the claimant had been treated fairly and reasonably during the management of his nonattendance at work on 11 December.

The Company Disciplinary Procedure provides for a Final Written Warning as the third stage in the Disciplinary procedure and lists examples of serious misconduct as:

Absence from the workplace without permission

Insubordination including failure or refusal to do work assigned.

The Company Policy on annual leave also provides that

Employees will take their annual leave during periods as established by the company.

10 annual leave (shutdown)

Fixed Days (Christmas)

5 floating days.

One weeks’ notice is expected by the company when an employee is taking a floating day. Positive considerations will be given to requests outside of this time scale for genuine emergencies. In the situation of multiple requests for a day/the company reserves the right to use discretion in the granting of such requests.

The Employer outlined that request for floating days are regularly refused due to either the number of leave requests at the same time or the need for production to proceed.

The Employer submitted that the claimant had been denied leave. He had then raised the matter with the next level of management and his request was again denied. The Production needs ruled out any leave during the final two weeks of the year. The Claimant refused to accept the rejected leave request on 11 December and subsequently engaged in an unauthorised absence.

The Employer relied on a Union/Management agreement where the Disciplinary Procedure applied in cases of unauthorised absences. The Agreements links the digression to absences around a Public Holiday and the Employer argued that peak production times shared the same footing.

The Employer equates “unauthorised absence “with serious misconduct and the application of the Final Written warning was consistent with this. The Company offered a Stage 4 appeal which was by passed in favour of a referral to the WRC. The Employer argued that the Union had failed to exhaust its own agreed Industrial Relations procedures prior to referral.

The Employer presented as keen to engage with the Union on reviewing and updating its Grievance and Disciplinary procedures as the company was now on a much smaller scale than in the time of their inception.

Findings and Conclusions:

I have considered the Oral and Written Submissions of the parties and I was struck by the positive strength of engagement from both parties. I did attempt to explore a basis for a mutually acceptable resolution in the case at the behest of the parties. Unfortunately, this was unsuccessful.

I found that both parties were very hurt and disappointed at the turn of events. The Claimant had a 20-year unblemished record and the Employer was clearly juggling to satisfy the needs of a workforce and a Production line imperative.

I found that the root of the issue lay in the system of annual leave allocation. I found this to be too casual, resulting in a build up of leave owing, which in turn may have raised the claimants sense that he was entitled to take the leave.

I have found that there was wrong on both sides in this case. The claimant identified himself as unavailable for work, rather than trying to find another local solution i.e a swop. Once he was notified of the claimant’s unavailability for 11 December, The Employer did not set out the implications for that decision i.e. that his actions may activate the Disciplinary Procedure.

It is not lost on me that the run up to Christmas can be a very special time in Family life for lots of different reasons, I understand the desire to take time off with Family, however, the claimant ought to have had permission to absent himself from work and he ought to have activated the Grievance procedure in the face of the refusal, notwithstanding the narrow timescale involved.

Statutory Instrument 146/2000, Code of Practice on Grievance and Disciplinary Procedures stresses that:

Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness.

I have considered the application of the Final Written warning in the context of the company Disciplinary procedure. I noted that it was a three-stage approach, consisting of two sequential verbal warnings followed by a final written warning stage. This seemed unusual to me in that there was no provision for a written warning prior to a Final written warning. I was struck by the claimant’s unease in relation to working under the restrictions imposed by a Final Written Warning. I was also struck by the Employers need to have placed a sanction with regard to the “no show”.

I noted that the Employer indicated a willingness to engage in a review of these procedures and I find that that proposal is timely and should be considered by the Union and acted upon.

I found some procedural deficits in the three appeals which followed the Original decision in this case. There was a marked cross over of personnel involved in the first two appeals and the original decision. While I note the Employers arguments that the Grievance Procedure was relied on as the vehicle to lodge the appeals the appeals ought to have been conducted by a Manager unconnected with the primary decision. I note that the claimant was represented at both the Disciplinary and first appeal stage and there was a Union involvement in follow up discussions. The Claimant submitted the grounds for appeal as resting on “excessive” grounds. I did not find that this aspect was considered in any detail. I also found the repetition of three appeals to be very unusual .

I noted that the Employer considered the unauthorised absence as a case of serious misconduct , yet they did not advance the issue down that road . This demonstrated significant goodwill towards the claimant .

In conclusion, I found that the Employer was justified in invoking the Disciplinary Procedure in this case and some sanction was warranted. Considering the positive working relations between the parties prior to the events of the unauthorised absence, I find that the “once off “nature of the unauthorised absence was judged very harshly by the Employer.

I find that the sanction of Final Written warning was a disproportionate sanction and should be reduced.

Recommendation:

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

I recommend that the parties engage in a mutual trust rebuilding exercise where the parties agree to discuss and plan the Claimants’ annual leave allocation in a structured way over the year 2018.

I recommend that the Final Written Warning is reduced to a Written Warning of 6 months’ duration.

Dated: 24/01/18

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Final Written Warning.