Complainant

Respondent

Anonymised Parties

Sales Assistant

Retailer

Representatives

Tara Keane Mandate Trade Union

Tiernan Doherty IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012042-001

21/06/2017

In the circumstances of this case, the Complainant has sought adjudication with the WRC in relation to a trade dispute in her workplace pursuant to the Industrial Relations Act, 1969. The Complainant referred this matter to the WRC on the 21st June 2017 and receipt of same was acknowledged on the 22nd June 2017. The Respondent Company was informed of this referral on the 22nd June 2017. Both parties were informed   that this matter would proceed to adjudication and were informed of the hearing date of this matter on the 16th August 2017.

The Complainant commenced employment as a part-time sales assistant with the Respondent Company on the 30th October 2012. The Complainants weekly salary is €250.52 and would work 15.5 hours per week.

Following a Disciplinary hearing on the 4th March 2017, the Complainant was issued a first written warning on the 29th March 2017in relation to her absentee levels. The Complainant availed of the internal appeal process and accordingly appealed the first written warning on the 6th April 2017 on the grounds that the decision was excessive and disproportionate, that she has been compliant with Company procedure and was unaware of the availability of Force Majeure leave.

It was submitted, on behalf of the Complainant, that the Respondent was brought through the Company Disciplinary Proceedings an on the 29th March 2017 and was issued with a First Written Warning for unacceptable levels of attendance.

The levels of absence were in relation to 6 shifts and 2 partial shifts and these absences were in relation to wisdom teeth (certified sick leave) and the illness of her son. It was submitted that the Complainant, in her particular circumstances, had no other child minding options available.

The Complainant appealed the sanction on the grounds that the First Written Warning was excessive and disproportionate to her level of absence, that she was always compliant with Company procedures and provided the relevant medical certification where appropriate and that she could have availed of Force Majeure leave for the days that her son was ill.

It was submitted that the Respondent Company did not fully take into account the Complainants explanations for her absences and in particular the absences in relation to her child where she had no other options available. It was submitted that the Respondent Company should have removed the absences relating to her child in light of the fact that she could have availed of Force Majeure leave but was unaware of this fact.

It was submitted that according to the Respondent Company’s absence policy, a return to work meeting is to be arranged by the individuals manager upon their return to work from a short absence, however these meetings never took place with the Complainant as if they had she would have been able to inform them that she was absent due to her child’s illness and then she would have been made aware of the force majeure leave option.

The Appeal hearing took place on the 4th May 2017 and the Respondent Company informed the Complainant on the 18th May 2017 that the decision to issue the Complainant with a First Written Warning was being upheld. This effectively concluded the right to appeal within the Respondent Company’s procedures.

It is submitted that on behalf of the Complainant, that the decision to progress the Complainant’s sanction from a verbal to a written warning was purely punitive rather than corrective in nature. The Respondent Company could have considered a lesser sanction in the light of the Complainant’s situation and difficulties. The Complainant has at all times complied with the Respondent Company’s Absence Policy and Procedures for reporting when ill and providing the relevant certification where necessary.

In conclusion it was submitted that the Complainant’s explanation and circumstances were not fully taken into account and the sanction applied was totally excessive and the Complainant seeks that the ‘First Written Warning’ be removed from the Complainant’s record.

It is submitted that prior to the aforementioned written warning that the Complainant was on a line verbal warning due to unacceptable attendance levels from the 24th August 2016. An investigation took place on the 18th February 2017 into the unacceptable levels of absence over a number of months. The claimant was afforded the opportunity to bring a representative however, she declined. The concern was the claimant’s level of absence had now exceeded 9% despite being on a verbal warning.

As of the aforementioned disciplinary meeting on the 4th March 2017 the Complainants levels of absences had reached 9.09% above the average absence rate of 3.5%. Following said meeting a first written warning was issued by letter dated the 29th March 2017 and as mentioned above the Complainant appealed the sanction and said appeal took place on the 4th May 2017. Ultimately, the Complainants appeal was unsuccessful and it was decided to uphold the reasons for the original warning sanction and the warning remains live on the Complainants file for a period of 12 months.

It was submitted that the Complainant received a written warning following an unacceptable level of absences, in the particular circumstances of this case they were in excess of 9% when the average is 3.5%. The Complainant was already on a verbal warning for unacceptable levels and as a result the Respondent had no alternative, following a thorough investigation and disciplinary process, but to issue the follow on sanction as catered for under the company policies.

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations, and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case.   Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

Further, I am guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

in the circumstances of this matter, the Complainant has provided explanations for her absences and her lack of understanding of the “force majeure” principles, however I am conscious of the principle of ignorantia juris non excusat[1] or ignorantia legis neminem excusat where in a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.

Although, I accept the bona fides of the Complainant, but upon hearing the evidence and upon consideration of the submissions provided, I do not accept that the sanction imposed by the Respondent Company was punitive or excessive. Further, the matter was thoroughly investigated and the disciplinary process was fair and reasonable. I have considered the submissions of both parties and accept the decision made on appeal is fair and reasonable in the circumstances and I do not find the claim well founded and it accordingly fails.

Accordingly, I will not be making any recommendations as sought by the Complainant, however, I would recommend that the Respondent Company update their employees, especially new parents, on the availability of force majeure leave by informing their employees either at staff meetings or   in correspondence. Further I would recommend that , in relation to appeal hearings , such as the one held on the 4th May 2017, it may be more appropriate for those to be heard by a Store Manager from a different location than the Complainants place of work.

In the circumstances of this matter and in accordance with Section 13 of the Industrial Relations Act, 1969 I do not make any recommendations in favour of the Complainant.

I would recommend the Respondent Company inform their employees, especially new parents, of the availability of force majeure leave.

I would recommend that such appeal hearings held by the Respondent Company be heard by a store manager from a different premises.

Industrial Relations – Grievance Procedures