ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00022639

Parties:

	Complainant	Respondent
Anonymised Parties	A Revenue Protection Supervisor	A Public Transport Company

Representatives

Shonagh Byrne of SIPTU

Loughlin Deegan of Byrne Wallace Solicitors

Complaint(s):

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-00029291-001	25/06/2019

Date of Adjudication Hearing: 19/09/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Date of Adjudication Hearing: 19/09/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

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

Preliminary Issue / Late Notification of Complaint to Respondent.

The Respondent pointed out that the Complaint had been lodged with the WRC on the 25/06/2019. They maintained that the Complaint had not been properly advised to them by the WRC until they received a Notification on the 19th August 2019 of a Hearing date in September - thereby denying them of their rights to formally object to the Adjudication Hearing, if they had so wished.

The Respondent is not a small employer and has experienced IR/HR Staff. It is represented by a most experienced firm of Solicitors. On balance and having noted the fact that, regardless of the date issue, the Respondents, nonetheless, willingly took part in the Hearing of the 19th September 2019, I have to give some credence to their assertion that the original WRC letter was not received in the HR Department.

However, as all parties were present on the 19th and made no serious objections to the process at that date, I decided to allow the Hearing to go ahead.

Background:

The issue in contention was a Written Warning issued to the Complainant by the Respondent. The Complainant maintained that it was Unfair and Not in Keeping with Natural Justice.

1: Summary of Complainant’s Case:

The Complainant was absent on Sick Absence due to a Work-Related issue for five months from June 2018 to December 2018. She returned to work in December and on the agreed Medical Advice of the Occupational Heath Physician began on reduced hours. She was not able to avail of a Formal return to Work interview due to the general unavailability of the key Management Personnel. She had a minor illness of the 19th December which necessitated her going home early. On the 12th February 2019 she attended an investigation Meeting regarding her Absenteeism with Manger Mr.Xa. This progressed to a Disciplinary meeting on the 3rd April chaired again by Mr.Xa. At this meeting she was given a Written Warning. She appealed this to Manager Mr Xb. The Appeal was unsuccessful, but the duration of the warning was reduced to 9 months from the original 12 months.

The Complainant argued that the entire Investigation/Disciplinary /Appeal process had been procedurally seriously flawed. The same Manager had conducted the Investigation as well as the Disciplinary processes. The issue of her Absenteeism had been taken out of context. There was a complex history to her situation that had not been given due recognition. In the Oral Hearing the Complainant’s Representative outlined much of this and referenced two previous Adjudication hearings between the Complainant and the Respondent. This was not a simple Absenteeism management case - there was significant history here.

Taking the Procedural issues and the complex history the issue of a Written Warning was completely unfair, excessively severe and totally disproportionate. It should be set aside.

2: Summary of Respondent’s Case:

The Respondent had a generous Sick Pay scheme and a good Attendance Management system. Management intervention is triggered by a number of Controls -basically milestones which, once crossed, initiate an Employer Absence management response. In January 2019 the responsible Manager, Mr. Xa, commenced a standard Absenteeism policy with the Complainant. She had triggered the policy by her absenteeism level. The Complainant was uncooperative at the Investigation meeting and the matter proceeded to a Disciplinary meeting on the 3rd April 2019. The Written Warning was entirely appropriate and was upheld at the Appeal stage. While the original 12-month Warning was reduced to a 9-month warning all the procedures followed had been fair and in keeping with an agreed Union /Respondent Absenteeism Policy.

3: Findings and Conclusions:

While detailed written submissions were provided by both parties I felt that a lot of inference had to be drawn from the Oral evidence at the Hearing.

The nature of the Complainant’s position in the Revenue Protection function of the Respondent is challenging. This would be commonly accepted by any reasonable observer. The Complainant’s absence on Stress related sick leave for some 5 months during 2018 is possibly linked to this situation as is the fact that Respondent Occupational Health Physician was happy to certify the absence of the Complainant.

It was also clear that the Complainant had by now developed quite a “jaundiced” view of the Respondent and its Managers. It was not clear if this was reciprocated in full but the Complainant was unlikely, in my outside observation, to win any “Employee of the Month” awards.

There had been a number of third-party interventions between the Complainant and the Respondent by the date of the current Hearing on the 19th September 2019. Adjudication finding Adj-000020126 was the most recent. This was a very detailed Recommendation, dated the 23rd of July 2019, under the Industrial Relations Act,1969.

I accept the fact that it issued post the initial first lodging of this Complaint on the 25th June 2019.

None the less I feel it is appropriate to quote a key part of the Recommendation.

“Specifically, I recommend that the Complainant accept the recommendations of the investigator to engage in a suitable facilitated and informal resolution process with the Respondents in the investigation and this is a good way forward for all concerned.

I also recommend that, in consultation with her union, the company should agree a sensitive, confidential counselling process to allay the Complainant’s fears about her perceived vulnerability to future investigation or disciplinary processes.”

I can only fully endorse this Recommendation.

In the context of the current complaint regarding the Written Warning I recommend that it be placed in a “Limbo” or “on hold” position pending the outcome of any discussions /action arising from Adj-0000 20126.

To do otherwise would in my view create a most unhelpful distraction to a complex Employer /Employee relationship difficulty that Adj -000020126 is seeking to address and hopefully resolve.

4: Recommendation:

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

I formally Recommend that the Written Warning at the centre of this complaint be placed “On Hold” pending the outcome of any process arising from earlier Adj-000020126.

For the avoidance of any doubt the warning should not be placed, for the moment, on the Complainant’s Personnel file. Final decisions of this matter and the eventual status of the Warning should form part of the processes outlined by Adj-000020126.

Act	Complaint/Dispute Reference No.	Summary Recommendation
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00029291-001	Disputed warning to be placed “on hold” pending the outcome of Recommended processes arising from earlier Adj-000020126.

Dated: 5th December 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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