Complainant

Respondent

Anonymised Parties

A Worker

Food processor

Representatives

Vernon Hegarty Workers' Rights Centre

Declan Thomas 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-00012079-001

23/06/2017

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

CA-00012079-002

23/06/2017

The claimant has been in the employment of the respondent as a General Operative since 2007.He was aggrieved with the imposition of a written warning and submitted that the respondent unreasonably reneged upon its commitment to compensate him for loss of 2 night’s shift pay arising from his failure to attend a medical appointment – it was submitted that he was unable to make the appointment through no fault of his own.

The claimant sustained a workplace injury in July 2016 – this requires the claimant’s attendance at a consultant’s clinic in Galway for regular treatment. The respondent arranged for the treatment, paid for it and compensated the claimant for any time off required to attend the clinic. It was submitted that the arrangement did not include travel costs. The claimant was called for a review appointment on the 10th.May 2017 – where appointments were set for any day other than a Monday, 2 nights off work are required. Ordinarily, the claimant travelled by bus but because of the late afternoon appointment and the bus time table restrictions, the claimant accepted the offer of his girlfriend to drive him to Galway. Unfortunately, the car broke down en route to Galway in Tuam. The claimant had difficulty in getting in touch with the consultant and the respondent’s insurers and sent a text message to the insurers and contacted the consultant at 2.10 pm to explain the situation. Eventually, the couple left Tuam to return to Donegal, with the assistance of friends who made the journey down to rescue them and the claimant arrived back at 9.00p.m.

The claimant was advised to attend a disciplinary hearing on the 18th.May regarding his failure to “attend a Consultant’s appointment in Galway on the 10th.May and your subsequent absence from work for 2 nights”. The outcome of the meeting was that the claimant received a written warning for failing to notify the company of his dilemma and 2 night’s shift pay was upheld. The claimant appealed the sanction but his appeal was rejected and the claimant contended that the appeal process was nominal and the outcome would not change.

It was submitted that the warning was unfair and unjust “determined in a manner completely contrary to the terms of the agreed procedures in the employment “ and that the sanction should be rescinded. It was contended that the respondent did not conduct the hearing in a fair and objective way and simply chose not to believe the claimant’s explanation- it was submitted that the presumption of innocence was absent. It was argued that the respondent chose to ignore the claimant’s record of attendances with respect to previous appointments – notwithstanding the inconvenience of travelling from Donegal to Galway – this arrangement was set by the respondent. The claimant does not drive and consequently the challenge of attending Galway for clinics was not appreciated by the respondent. It was submitted that this was not an unanticipated absence to attend work but an unanticipated inability to attend a previously arranged medical appointment. It was contended that the claimant did everything he could do to notify the necessary persons on the day. The employer did acknowledge that they had been notified by their insurer on the day of the breakdown. It was contended that the appeal was not properly heard and was consequently in breach of the respondent’s own procedures. It was advanced that in circumstances where the employer arranges for the treatment , selecting the service and location , makes arrangements for paid time off to attend , where through no fault of his own the claimant could not on one occasion attend, the claimant should not suffer the loss of 2 night’s pay- it was contended that the absence on 2 nights had been agreed and sanctioned by the employer ahead of time. .It was submitted that the respondent effectively held the claimant to be lying.

The respondent set out a chronological account of the treatment funded by the respondent following the injury at work on the 25th.April 2016.The claimant sought 2 day’s off work for his review appointment on the 10th.May 2017.It was submitted that he requested through his supervisor 2 days off work i.e. the 9th. and 10th.May 2017.Prior to his appointment it was submitted that the claimant advised HR that he would have to get a bus and stay overnight as he did not drive and his partner was unable to drive him to Galway. It was submitted that HR agreed to his taking 2 days paid leave to travel by bus to attend the appointment. The respondent was given a check to pay the Consultant and the claimant was reminded that his expenses would be reimbursed. The respondent’s insurers contacted HR on the 10th.May and advised that the appointment was cancelled owing to the car break down.

The initiation of the disciplinary hearing and subsequent events were set out. It was submitted that the claimant was afforded all of his rights and the company complied with their own procedures. It was submitted that the claimant claimed at the hearing that the bus times did not suit him, that his girlfriend’s car had broken down and that his girlfriend’s brother had to tow them back to Donegal. The claimant was issued with a warning “due to the fact that he did not attend for work, he did not contact anyone in the respondent company nor did he attend his appointment as pre-arranged and agreed”. It was submitted that the appeal was rejected on the basis that the claimant failed to contact anybody in the respondent company about his non-attendance at the hospital and due to not attending work on either of the 2 nights and failing to contact anyone in the company about not attending work.

I have reviewed the evidence presented at the hearing and considered the respective positions of the parties. I note the following:

The claimant is deeply aggrieved with what he perceives as his employer’s failure to accept his good faith on the matter of the reason for his non-attendance at the consultant’s appointment in Galway. In the course of the hearing it emerged that the claimant had not submitted evidence to support his contention that the car had broken down – the claimant asserted that the respondent was unwilling to consider any such evidence while the employer representatives were adamant that they were open to considering any evidence the claimant wished to present of the car breakdown.

The claimant was adamant that the first time an overnight arrangement was mooted was at the disciplinary meeting – the respondent insisted that the claimant had spoken to the HR manager and agreed he was taking the bus to Galway. The respondent asserted that they had checked the claimant’s assertion that he had mentioned to L that he may travel by car to Galway but that this had been denied by L.

The claimant asserted that 2 nights off were required and had always been conceded because of the distance involved – the first night before the appointment to be fit to attend and the second night as it would not have been safe to return to night duties that evening having travelled from Galway, without sufficient rest before commencing work.

The matter of payment of expenses was entirely unclear – HR was adamant that the claimant had an entitlement to payment and that payment had been processed while the claimant was insistent that he never sought expenses and was unaware of any such entitlement.

I find that the respondent’s expectation that the claimant would make contact directly with them when it emerged that he would not make the consultant’s appointment was reasonable particularly in circumstances where the claimant was effectively on company time. However, I note that the claimant had met all his previous appointments and that the company procedure provides for an escalating range of sanctions – in these circumstances, I find the sanction was excessively harsh and recommend that the sanction be reduced to a verbal warning – the warning to expire – as provided in the company procedure, 6 months from the date of issuing of the written warning – the warning presented in evidence was undated.

As the first night of absence on the 9th.May was approved and incurred in anticipation of the journey to Galway, I recommend in full and final settlement of the dispute, that payment for that night be paid to the claimant. Had the claimant engaged with the respondent about the car breakdown it may well have been possible to agree a mutually acceptable formula about the claimant’s return to work following the car breakdown. However, in light of the claimant’s failure to engage on the matter, I find it was not unreasonable for the respondent to withhold payment for the 10th.May 2017 and consequently I do not uphold this element of the complaint.