ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012152

Parties:

Dispute:

Date of Adjudication Hearing: 05/03/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following 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:

Summary of Worker’s Position

This is an appeal of a final written warning which is due to expire on 22nd August 2018.

He had been issued with a final written warning on 23rd August 2017. He appealed this sanction but the appeal failed. He is appealing the severity of the sanction given the circumstances of the leave involved. Natural justice was not served as the manager who made the complaint was involved in the investigation and the disciplinary process.

The Worker’s aunt died on 23rd July 2017. He delivered a sick note on Monday 24th July for the previous Friday and that Monday. While he was there he informed management of his situation. He was told to contact another manager the next day. He failed to do so. He did not do so deliberately, he got caught up in the funeral situation. His sister works in the hospital as well and she had to attend the funeral, so they knew the circumstances. He believed that management knew why he was not at work. He tried to contact his manager on Thursday 27th but only got to speak to him on the next day Friday 28th. He did not believe that his absence due to bereavement would lead to a disciplinary sanction. Natural justice was denied as his manager was involved in the investigation and the disciplinary hearing. This is not in keeping with S.I. 146/2000. He believed that he had made his manager aware of the reason for not being at work. His phone showed that he had tried to contact his manager. The final written warning was disproportionate and fair procedures were not applied. He is seeking that the sanction in expunged.

Summary of Employer’s Position

The Worker had a written warning issued on 30th March 2017 for unauthorised absence. He had left his place of work to watch his son play a football match. He did not appeal that decision. This unauthorised absence occurred in the period 25th to 28th July 2017. As this matter occurred within the nine months of the life of the written warning, the next stage of the procedure was applied. It is company policy that the employee must personally contact management between 8.00 and 9.00am on the first day of absence. If it’s expected to exceed that day then the employee is expected to give an indication of the expected duration. If the absence exceeds two days then a medical certificate is expected. In the case of compassionate leave, in this case, a death of an aunt, one day’s leave is granted. Management must be informed. The leave then has to be applied for in writing to the HR department. Approval is confirmed in writing and the line manager is advised.

On 20th July 2017 he went absent from work, he notified his manager. He was also absent on 21st. His aunt passed away on Sunday 23rd. On Monday 24th July he submitted a medical certificate to cover up to that date. Management were aware that his aunt had died over the weekend but he never made any application for compassionate leave in line with company policy. The funeral took place on 27th July. He made a call at 14.11 that day but got no response. He made no other attempt to contact management. Management contacted him on Friday 28th to enquire why he had not attended at work or made contact since Monday. He stated that he had tried to do so. He returned to work on 31st and submitted a medical certificate dated that day to cover the period from 21st July 2017.

On 10th August the Employee Relations Manager invited him to a meeting to discuss his absence on 23rd August. He was represented by his shop steward. He stated that he had forgotten to phone management. The outcome was that he was issued with a final written warning. He appealed the level of the sanction and his justification was his aunt’s death and the onus was on management to contact him if he hadn’t contacted them. The appeal took place on 7th September 2017. He was represented by his shop steward. The appeal was rejected on the grounds that it is imperative that contact is maintained when absent. He had been told on 24th to make contact but he didn’t. He was already on a written warning. This warning made it clear that if any further misconduct occurred that the next level of sanction may be invoked. He went absent and failed to follow company policy. He made only one attempt to contact the company and that was three days later than required. This claim is rejected and the final written warning should stand.

Findings and Conclusions

I note that the Worker produced a medical certificate to cover to the period to 24th July 2017.

I note that he was advised if there was further absence he had to provide a medical certificate.

I note that he provided a medical certificate dated 31st July for the period 25th, 26th and 27th July.

I note that local management accepted this certificate and paid him for the sick pay.

I note that the funeral took place on 27th July.

I note that despite local management paying him the sick pay, HR found that he had not followed the correct procedure and which he has accepted this.

I note that he stated that he didn’t know the bereavement policy.

I find that the Worker has shown a disregard for the adherence to the absence policy.

I find that the same person carrying out the investigation and disciplinary investigation is not best practice.

I am mindful that one of the day’s absence coincided with his aunt’s funeral.

I find that it is only when employees comply with absence policy can a company continue to operate such a policy.

I am concerned that the Worker should take the view that the company should contact him if he does not contact them.

I find that I have concerns about the Worker’s attitude towards absence.

Recommendation:

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

I recommend that the Worker is fully briefed on all policies and procedures relating to absence from work including bereavement.

I recommend that the Worker should give a firm commitment to strictly adhere to these policies and procedures.

I recommend that if he gives such a commitment then in view of his aunt’s death, the final written warning should be reduced to a written warning.

I recommend that in view of the circumstances of this case this written warning should expire on 22nd August 2018.

I recommend that this is implemented within six weeks of the date below.

Dated:   1st August 2018.

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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