ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00013289

Parties:

Complaint(s):

Date of Adjudication Hearing: 21/06/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1946 – 2015 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.

Background:

The Complainant commenced employment with the Respondent in September 1999 as a production operator.

Summary of Complainant’s Case:

The Respondent issued the Complainant with a written warning for certified sick leave and non-attendance at the company doctor.

The Complainant had 9 occurrences of sick leave covering the period 7 November 2016 and 23 October 2017. All absences were certified. Three of said absences included gastroenteritis and two infections and based on working in a product-sensitive area workers are warned not to take any unnecessary risks.

The Complainant represented members as a shop steward for many years and the company practice has been to only discipline employees who have a pattern of excessive self-certification on Mondays and Fridays. It is not the company’s practice to discipline workers who have certified sick leave.

The Complainant was contacted on the afternoon of Monday 24 October 2018to attend the company doctor the following day because coincidentally he was on site. Due to the short notice and because the Complainant had committed to taking his wife to a medical appointment on 25 October 2018 he requested an alternative day. Subsequently he then attended an alternative appointment on Friday 28 October 2017.

Normal company practice is that you attend the company doctor in their clinic and you are given appropriate notice of an appointment. The Complainant argues that disciplinary action for not attending a short notice appointment is unfair in the circumstances. The Complainant also alleges that the company also sought to discipline him by not paying for his expenses when he attended the company doctor on 28 October 2017.

The Complainant also argues that the company’s Disciplinary Procedure was not correctly followed as the appeal this was flawed as at the appeal hearing, the decision to confirm the appeal was not upheld was read out at the beginning of the appeal meeting.

The Complainant argues that his blemish free record of 18 years up to that date was not considered when a sanction was considered. The Complainant also alleges that a longstanding practice of starting his shift early to prepare his line, as overtime, was cancelled since he had been issued with the warning. The Complainant outlined that others in the company are still permitted to undertake this practice.

The Complainant has had one absence in 2018 with flu but his manager on this occasion reminded him he may receive a further sanction and outlined that they may need to look at his continuation on this shift as the company need to ensure there is stability on that shift.

The Complainant outlined that there had been no recognition from the Respondent when he attended work on a Sunday due to a backlog and that he has also stayed after his shift has finished to complete work.

The warning expired on 26 May 2018 last and this was confirmed with the Complainant on 15 June 2018.

The Complainant would like it noted on his file that the written warning should not have been issued in these circumstances so that this behaviour will not be repeated by management.

Summary of Respondent’s Case:

A Stage 2 warning was issued to the Complainant on 27 November 2017 which was placed on his employee file. The sanction was live on his file for a duration of 6 months. This warning expired on the 26 May 2018 and was expunged from the Complainant’s employee file. This was confirmed by the Respondent to the Complainant on the 15 June 2018 therefore the warning has been expunged from the employees file.

The Complainant currently works in a department which operates on rotating two cycle shifts in order to provide cover.

On the 31 October 2017, the Complainant was given two days’ notice of a disciplinary investigation meeting in relation to the high level and frequency of his absenteeism and his refusal to attend the company doctor on-site on 25 October 2017. He was further advised of the right to representation at that meeting.

The disciplinary meeting was rescheduled to the 9 November 2016 to facilitate the availability of the union official. The disciplinary investigation meeting was chaired by the Complainants manager (M1). In attendance also was the Complainants supervisor (S1), the HR Business Partner (HR1), the Complainant and a union official as his representative.

At the disciplinary investigation meeting the facts of what had occurred were outlined to the Complainant and his representative. The Complainant was given the opportunity to respond. Minutes of this meetings were issued to the Respondent for comment on 15 November 2017.

On 27 November 2017 the Complainant was issued with a Stage 2 Formal Warning (FW) in line with company disciplinary procedures. The reason for the FW was that there had been nine occurrences of illness absence for seven different reasons within a 12 month period which had resulted in the Complainant being absent for a total of 40 days. This amount of days absent and pattern of absences is not sustainable and was having a significant impact on the team.

During the Complainants absence from 23 – 27 October 2017 he had been requested to attend the company doctor on 25th October. However, he did not attend this appointment as he had made other plans for this day. These plans were made while on paid sick leave from the company when an employee is due to be available to attend medical appointments. The reason provided for this none attendance was not viewed as acceptable.

The Complainant appealed the company decision on 30 November 2017 and an appeal hearing was conducted. On 11 December 2017, the first appeal was conducted by the Associate Director Formulation & Supply Chain (AD1).

Although the Complainant was unavailable to attend the company doctor on the arranged date due to reasons outlined, he submitted a doctor’s certs and he did in fact attend a rescheduled date.

The 9 occurrences of illness absence outlined were certified and neither the union nor the Respondent were in a position to determine whether the Complainant was fit to carry out normal duties on these dates.

While the level of recurring absence was noted that it would be more prudent to counsel the employee as to this level being continuously monitored and being totally unacceptable were it to continue. This would put the employee on notice that an improvement in his attendance would be required going forward.

The outcome of the appeal was issued on 15 December 2017 and the company advised that having taking into account the Complainants grounds for appeal, they were upholding the decision.

The decision was made based on the fact that the Complainant stated that he could not attend the company doctor on the 25 October 2017 as he had to bring his wife to an appointment. It is company policy that an employee is out on paid sick leave must be available to attend the company doctor when required. At the appeal, the Complainant stated that he was available to see the company doctor on the morning of Wednesday 25 October 2017. It was confirmed with M1 and HR1 that he never indicated this to them either at the time of the company request or during the disciplinary process. The Complainant stated that he was not obliged to stay in touch with the company which is incorrect in line with company policy.

The Respondent outlined that such high levels of unscheduled absenteeism is unacceptable regardless of whether the absenteeism had been accompanied by doctor certificates (36 days of 6 occurrences altogether) or by self certs (2 occurrences of 4 days altogether).

During the appeal meeting the Complainant confirmed that S1 had highlighted an issue with his absenteeism during the performance review process. Based on the above evidence the Respondent found that absenteeism was addressed initially when it had amounted to 6 days and again when it amounted to 24 days. The Stage 2 disciplinary that was issued to him was in part for further as there was no sufficient improvement since his absenteeism was highlighted on the previous two occasions.

In line with company procedures, there is a second level of internal appeal. The Complainant did not utilise this option to appeal therefore, the agreed internal procedures were not exhausted in this instance.

The Complainant was provided with the full rigours of natural justice throughout the disciplinary process. In relation to the procedures used to implement the sanction, the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy. The Complainant was informed in advance as to the nature of the complaint against him. He was afforded the right to representation, which he exercised, during all procedures. He was further provided with a fair and impartial hearing, at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. The Complainant was afforded the right to appeal on two occasions, one of which he did not exercise. In this appeal, the Complainants specific objections were addressed. The Complainant was also clearly informed as to the outcome of any decision at each stage of the process.

The type of behaviour which the Complainant demonstrated constituted misconduct. The behaviour demonstrated by the Complainant through his actions could not be tolerated and so the Respondent had no option but to issue the Complainant with a Stage 2 formal warning.

Conclusion & Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

In accordance with Section 13 of the Act I recommend that no action be taken and that the complaint is not upheld.

In relation to absence, the Respondent’s Sick Leave Policy, Absence Policy or Disciplinary Policy does not cover disciplinary for absence however the Respondent advised that they do use the disciplinary procedure to manage absence issues as customary practice. A disciplinary in this regard for attendance is noted. The Complainant didn’t meet the required standard.

The Respondent followed their internal policies and at the time of the hearing, the warning had expired therefore I have no further recommendations.

Dated:   25/01/2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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