Complainant

Respondent

Anonymised Parties

A postal sorter

A services company

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-00033379-001

20/12/2019

The Complainant has been employed by the Respondent since 6th August 2002, she continues in employment.

This complaint was received by the Workplace Relations Commission on 20th December 2019.

On 8th August 2019 the Complainant received a letter from the HR Manager. He informed her that the management had issued her with a second level written warning.

She received this notification without having undergone any disciplinary hearing. The only engagement prior to the warning was an exchange of correspondence between the HR Manager and the Complainant as part of an investigative process into what the HR Manager claimed was an unauthorised absence from work over a two working day period of 26th and 27th July 2019.

The Complainant contends that the letter from the HR Manager demonstrates that he made his judgement on his own medical opinion of her stated condition, despite him not being a qualified health professional. He informed her of the type of symptoms her condition should exhibit – presumably he googled it – as they did not meet the medical criteria he had set; the Complainant was issued with a warning.

This was followed by an official warning from the Plant Manager, which was to be placed in the Complainant’s record where it would remain for a period of 18 months from the time of the decision to issue the warning.   She was further informed that she would not be allowed to act up to a higher grade or to seek a transfer from her workplace.

In addition, she was warned that if her behaviour came to the attention of management within that 18 month period her case would be referred to Head Office where a substantially more serious disciplinary procedure would be considered, and which could result in the termination of her employment.

On 10th August 2018, the Complainant wrote to the Plant Manager and the Area Manager, to inform them that she considered this a serious development and would be lodging an appeal.

Her Union Representative had earlier written a letter to the Labour Court expressing concern that the HR Manager’s action was an attempt to interfere with potential witnesses given that the HR Manager had cited that her presence at the Labour Court on one of the days she was absent from work was evidence that she was not sick and was therefore fit for work.

On 12th August 2019 the Complainant emailed the Plant Manager and the Area Manager requesting an oral appeal hearing. She also asked for a time and date to be scheduled.   Her correspondence elicited no response.

According to Employment Rights Ireland “The employee should be given the opportunity to appeal within 14 days”.

On 8th October 2019 she wrote to both again requesting the same.   As on the previous occasion her request met with no response.

Four months passed without any word from either the Area Manager or the Plant Manager. Confronted with a refusal by the company to either engage or to arrange an appeal hearing, the Complainant felt she had no option but to take her case to the WRC.

It was after the Respondent was notified by the WRC, to which it failed to respond, that an email was sent to the Complainant by the Area Manager on 23rd January 2020 offering an appeal. While viewing it as a very late in the day stratagem for circumventing the WRC, the Complainant did not refuse the offer.   She informed the Area Manager that the union official assigned to the task of representing her was absorbed in preparing WRC cases and would not be available to work on her case in the time frame suggested by the Area Manager. She also pointed out that her own schedule did not permit her to give an affirmative response to the date proposed by the Area Manager as she was scheduled to be on jury duty and would not know her availability until the court trial she was a juror to had concluded.

Given the Respondent’s tardy response and seemingly “forced” tactical granting of an appeal, the Complainant felt it would be most imprudent for her to withdraw the case from the WRC. In her view it was only because she had submitted a grievance to the WRC that she received a response to her requests. The response from the Respondent was well outside the band of what could be considered a reasonable time period. There is nothing in the Respondent’s handbook “Discipline Policy & Procedures” which would lend itself in support of a contention that the delay of around five months in offering an appeal was reasonable.

Furthermore, while the Complainant had requested the appeal she did so as a necessary step in internal disciplinary procedure. She felt it incongruous to be appealing the outcome of a disciplinary hearing that never took place to begin with.   In her view the company should have, upon learning that no disciplinary hearing had in fact taken place and that she was therefore the victim of an arbitrary decision crafted by the HR Manager rescinded that decision rather than pretend it was behaving with propriety.

It is the contention of the Complainant that the sanction against her in the absence of any hearing where she would have benefited from the services of a union flies in the face of both the company’s own discipline procedure policy and the Labour law as spelt out time out of number by both the WRC and the Labour Court. Moreover, that she has been denied any right to appeal the decision further compounds the egregiousness of the arbitrary process used to discipline her and is a usurpation of natural justice.

It is the Complainant’s firm view that the HR Manager did not have the requisite medical experience to enable him to make any determination in respect of the Complainant’s state of health. She is in possession of independent medical paperwork showing that she has been seeking treatment for the very problem that had led her to be absent from work on the days in question.

The Complainant also asserts that the second level written warning which she received runs counter to company policy as stated in its handbook “Discipline Policy & Procedures” where it is laid out that:

Ordinarily a second level written warning will only be issued where an employee who has previously received a first level written warning, which is still current …. however, a second level written warning may also be justified in respect of a first offence, if deemed sufficiently serious.

An employee with no previous disciplinary sanction and an attendance record which drew no previous attention from the company can hardly be deemed guilty of a sufficiently serious breach of discipline. Page 16 of the Discipline Policy & Procedures outlines instances of serious misconduct – two days absence does not feature among the instances itemised.

Finally, the Complainant draws attention to the Act addressing Employee protection against penalisation.

The Employment (Miscellaneous Provisions) Act 2018 introduces new provisions to protect employees against penalisation for invoking their rights under the Terms of Employment and Information Act 1994.

The new provisions provide that an employer shall not penalise or threaten penalisation for

1. Invoking any right under the Act.

2. Opposing in good faith an action that is unlawful under this Act (e.g. refusing to conspire in falsifying contracts of employment).

3. Giving evidence in any proceedings under this Act (e.g. being a witness for somebody else pursuing a case under the Act in the WRC or Labour Court).

4. Giving notice of the intention of doing any of the above.

Point 3 is very clear. There were no grounds for the HR Manager to initiate a disciplinary process against the Complainant arising out of her attendance at a Labour Court hearing.

BACKGROUND

The Complainant commenced employment with the Respondent on 6th August 2002. She is currently employed on a full-time permanent capacity.

On 25th July 2019 the Complainant contacted the Company to advise that she was unable to attend for work for two days as a result of illness.

On 30th July 2019 the Complainant supplied a reporting of sick leave form requesting the absence of 26th and 27th July 2019 to be treated as self certified paid sick leave.

Notwithstanding the above the Complainant attended a Labour Court Hearing on 26th July 2019 where the Respondent was also in attendance.   As a result, the question of the authenticity of the Complainant self certified sick leave arose.

Respondent position.

The Respondent’s position is that the Complainant declared herself unfit for work, then presented herself in an otherwise fit capacity at a third party hearing, and subsequently claimed self certified paid sick leave.

As concerns arose over the authenticity of her plea of sickness and the suspected abuse of the Company’s sick pay scheme, the Respondent’s agreed disciplinary procedures were invoked.

As per 12.2 page 14 of the Disciplinary Procedures –

The Company wrote to the Complainant on 30th July 2019 and advised her of the irregularity she came under notice for.

The Complainant was invited to put forward a case as to why her absences of 26th and 27th July 2019 should not be deemed as unauthorised.

The Complainant was also invited to put forward any reasons for consideration as to why the matter should not be addressed as part of the Company’s disciplinary procedures.

As per these procedures the Complainant was afforded five working days to respond.

The Complainant was advised that she could seek the assistance of her trade union representative in preparing her reply.

The Complainant’s response was received on 6th August 2019.   The Company considered the case put forward and responded on 8th August 2019. The Complainant was advised that the view was formed that she would have been capable of attending for duty and that her plea of illness was rejected. As the absence was deemed to be unauthorised the Complainant was advised that she would be issued a second level written warning.

Section 15, page 18 of the Company’s Disciplinary Procedures provides that all disciplinary sanctions issued under the procedure can be appealed.

The second level written warning advised the Complainant of her right to appeal the decision to the Area Manager. The Complainant indicated on 10th August 2019 that it was her intention to do so. She emailed the Area Manager on 12th August 2019 to request an oral appeal of this decision and again on 8th October 2019.

The Company acknowledges and regrets the unusual delay in responding to the Complainant’s request to an oral appeal. The Area Manager emailed the Complainant on 23rd January 2020 to express the regret and to advise that an oral hearing had been arranged for 30th January 2020. The Complainant did not attend and the Company then attempted to reschedule the oral appeal but unfortunately the Complainant and her representative were not available to attend between then and today’s hearing.

As per 15.2 page 19, of the Company’s Disciplinary Procedures no disciplinary sanction will be applied pending the outcome of any internal appeal initiated within the specified timeframes. As the Complainant indicated her intention to appeal within the specified timeframes no sanction has been applied to her to date. This was confirmed to the Complainant in the email of 23rd January 2020 from the Area Manager.

The Company remains available to providing an appeal to the decision to issue a second level written warning.

In addition, the Company has a comprehensive Grievance Procedure which remains open to the employee, should they wish to lodge a grievance regarding the application of the Company’s Disciplinary Procedures. As per 5.1 page 9 of the Grievance procedures, there are four levels to refer a grievance – local, intermediate, central and to the WRC. In the normal course of events, the Company’s internal Grievance Procedure is exhausted before the matter is referred to the WRC for adjudication.

Conclusion

The Company’s Disciplinary Procedures as set out were applied.   The Company acknowledges and regrets the unusual delay in responding to the Complainant’s request to an oral appeal hearing. The Company assures all parties that there was no malicious attempt to contravene its own procedures which espouses the principles of natural justice and fair procedures. The process hasn’t concluded and the sanction hasn’t been applied pending the outcome of the oral appeal.

The Company has attempted, and is still affording the opportunity, to hold an oral appeal hearing. The Company commits to arranging an oral appeal hearing at the earliest opportunity and respectively asks that the disciplinary process be allowed to conclude.

It would respectively ask that consideration be given to the Company’s internal Grievance Procedure in relation to any grievances that arise as a result of the application of its Disciplinary Procedures.

I quote from the Complainant’s submission:

“On 8th August 2019 the Complainant received a letter from the HR Manager. He informed her that the management had issued her with a second level written warning”.

The Respondent’s in their conclusion states:

“The process hasn’t concluded and the sanction hasn’t been applied pending the outcome of the oral appeal”.

Both parties should have collectively sought an adjournment of the hearing at the WRC until such time as the internal procedures had been exhausted. I cannot make a recommendation on something that has not taken place. The parties should now work together to ensure that any appeal is heard and that all internal procedures have been exhausted. This is my recommendation.

The parties to should now work together to ensure that any appeal is heard and that all internal procedures have been exhausted. This is my recommendation.

Industrial Relations issue.