ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00011906

Parties:

Complaint(s):

Date of Adjudication Hearing: 26/06/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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.

CA-00015745-001

Industrial Relations Act 1969

Background

The claimant commenced employment with the respondent in 2000. She has an excellent work and attendance record of employment for the respondent and she has worked in various roles/departments within the store. The union submitted that the respondent alleges the claimant has breached the Absence Policy.

The respondence the correspondence detailing the Verbal Warning cites the following

“further to this you had a pattern of not attending work over 3 public holidays in a row (New Years, St Patricks day and Easter) and a percentage just slightly over 8 %”

This assertion is absurd given the Claimant was not rostered to work in any of the Public Holidays, a fact which was established at the investigation hearing.

The correspondence further states;

“Continued unacceptable levels of attendance at work, in the absence of mitigating circumstances could lead to disciplinary action being taken up to and including dismissal”

The Union submitted that the claimant provided mitigating circumstances throughout the process from the investigation hearing through appeal, all of which were ignored. The respondent was informed at the disciplinary hearing of the diagnosis of a recognized medical condition requiring lifelong treatment and evidence of the same was provided for consideration but was ignored.

The Respondents treatment of the claimant is in clear breach of the respondent’s own policy which states as follows;

“We want to ensure that when colleagues are absent from work due to ill health or injury we will provide the necessary support. Our sickness policy and procedures are designed to provide this support consistently across Retail, Head Office and Distribution while enabling us to minimize the disruption that absence cause”

The union submitted additional exacts from the policy. It was stated that the warning as issued is fundamentally flawed and the actions of the investigating, disciplinary and appeals officers demonstrate an utter failure to act in accordance with the respondent’s own policy and procedures.

The respondent failed to consider all the evidence provided in support of the claimant’s case which if properly and fairly evaluated would not have resulted in a sanction being issued. The respondent also failed in a duty of care to the claimant at a time when the claimant needed support at this very difficult period in her life.

The respondent Position

The respondent submitted that it is a well-established case law that the role of the Adjudicator is to consider whether the actions of the respondent were those of a reasonable employer. It was submitted given the pressures being placed upon organisations to achieve enhanced levels of productivity and reduced costs, it is essential that aspects of the organisation that adversely affect these are minimised. The respondent submitted that in a competitive marketplace, absenteeism can have a significant impact on the company performance. The conclusion reached by the investigator, namely the complaint had an absence level of 8.13% 3 occasions and 11 days absence in 26 weeks prior to her last absence, that she was not at that time fulfilling her contractual obligations was a reasonable conclusion.

The respondent submitted that the sanction of the verbal warning was just and propionate in the circumstances. The claimant was afforded all the benefits of fair procedures, in line with the respondents established policy, the code of Practice on Grievance and Disciplinary (SI146/2000)

Findings

Both parties made written and verbal submissions at the hearing.

I find that the respondent stated that the role of the adjudicator which is well established in case of law whether the actions of the respondent were those of a reasonable employer. I find that it is necessary in the first instance to establish whether the facts are in dispute.

I find in the respondent’s submission that the claimant was absent on 3 public Holidays in the Trade Union submission that the claimant had no obligation to work them. I find that the respondent has every right to monitor absenteeism and to take the appropriate action however in this complaint the inclusion of Public Holidays where the claimant was not rostered to work them increases the percentage absence.

I find the respondent’s policy is quite clear and I find that having examined all the documentation submitted that while questions by the investigators/appeal persons were asked the respondent policy would contradict their actions.

I find that claimant was up front and provided all information (which was denied) to the respondent. I find that this case in some sense is unique and for that reason, I am making the following recommendation.

Recommendation

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

I uphold the Unions appeal against the verbal warning and that it should be expunged from the claimant’s record.

Dated:   08/10/18

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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