Worker

Employer

Anonymised Parties

General Operative

Meat Processing Plant

Representatives

Ms. Andrea Cleere, SIPTU

Mr. Terry McNamara, IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00042715-001

25/02/2021

The Worker is engaged as a general operative by the Employer. On 25th February 2021, the Worker referred a trade dispute within the meaning of the Industrial Relations Acts with the Commission. Herein, the Worker stated that the Employer imposed an punitive and unwarranted disciplinary sanction upon him. On 15th March 2021 the Employer positively elected to engage in the dispute. In disputing the allegation raised by the Worker, the Employer submitted that the disciplinary sanction was both fair and proportionate given the act of wrong-doing committed by the Employee.  

A hearing in relation to this matter was convened and finalised on 5th August 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. At the outset both parties agreed that the internal dispute mechanisms had been exhausted prior to the referral of the present dispute to the Commission.

In January 2020, the Worker booked two weeks of annual leave, utilising the standard, agreed practice to do so. The Worker intended to travel abroad during this period and booked flights and accommodation for this purpose. 

In mid-2020, the Worker was absent from work for a period of time as a result of childcare commitments arising from the restrictions imposed on foot of the Covid-19 pandemic. When the Worker returned to work in July 2020, he discovered the annual leave procedure had been amended and that certain procedures had been implemented by management to restrict the flexibility regarding the taking of annual leave. On receipt of this amended policy, the Worker sought a meeting with the human resources department to discuss the foreign travel he had booked for the forthcoming August. When the Worker’s supervisor returned from annual leave in August 2020, the Worker again reminded him of his coming travel arrangements and requested a meeting with HR to discuss the same. The Worker also informed his supervisor that due to the 14-day quarantine period imposed on all incoming travellers, he would use 5 days of the annual leave for this purpose. At this point, the Worker’s supervisor informed him that he forgot to inform HR about the trip and did not request the meeting.

On 20th August the Worker attended the Employer’s HR office to discuss the forthcoming annual leave. At this point the HR manager shouted at the Worker that he would be “speaking with” him about the leave and ordered him out of the office. On the morning of the 21st August, the HR manager informed the Worker that his leave was unauthorised.  As the period of annual leave was due to commence later that day, and the trip had been pre-paid, the Worker flew abroad the following day.

Upon the return from his trip, the Worker completed the standard period of self-isolation and expected to return to work on 14th September 2020. Notwithstanding the same, the Worker received correspondence dated 4th September, inviting him to a disciplinary hearing on 17th September. The allegation set out in this correspondence was that the Worker failed to comply with the Employer’s annual leave policy and that the matter was being treated as potential gross misconduct.

Following a disciplinary meeting on 25th September, an outcome was issued on 29th September. Herein, it was determined that the Worker would not receive payment for his annual leave as it was not approved. In addition, a 13-week unpaid suspension was imposed on the Worker. On appeal, the sanction was upheld, however the number of unpaid weeks of suspension was reduced to 10.

By submission, the Worker stated that he is entitled to annual leave and utilised the correct procedure for booking the same in January 2020. As soon as he became aware of the updated procedure in this regard, the Worker informed his supervisor and sought a meeting with HR to discuss the same. He submitted that it was unreasonable for the HR manager to provide less than 24 hours’ notice of the cancellation of his annual leave by the Employer. He further submitted that the manner in which the HR manager behaved in conveying this information was unacceptable. The Worker stated that it is not in the power of the Employer to dictate where he travels or what he does on his annual leave.

In conclusion, the Worker submitted that he followed all of the rules regarding the taking of annual leave. He stated that the imposition of the disciplinary sanction was unwarranted and disproportionate. In addition to the same, the Worker stated that he followed all relevant protocols regarding international travel at the relevant time of the pandemic. Finally, he submitted that the abusive manner in which he was treated by the Human Resources manager was inappropriate.

In defending the Worker’s allegations, the Employer stated that disciplinary sanction imposed on the Employee was both fair and proportionate given the act of wrong-doing committed. 

The Worker was abroad during the initial outbreak of Covid-19 in February 2020, and as a result had to self-isolate for 14 days on his return. From 8th April to 10th July 2020 the Worker was facilitated in taking time off work for a variety of reasons including looking after a family member with underlying medical conditions and the fact that his partner was a frontline HSE worker. The Worker returned to work on 13th July 2020.

The day prior to the Worker’s return, the Employer implemented an amended policy relating to the management of essential travel arrangements and annual leave. The key issue with this new arrangement involved a risk assessment regarding proposed international travel. This policy dictated that “all persons considering leaving the country on essential travel / annual leave must complete an annual leave request form for approval by their supervisor and then by the Covid 19 / HR Manager.” The policy also states that “all annual leave flight and ferry arrangements are temporarily suspended other than emergency / essential travel outside Ireland”.

The Worker had applied for annual leave covering a period in August 2020 the previous January prior to the Covid-19 pandemic. The Worker booked a further international trip during the period he was required to self-isolate having just returned from an international trip.   

On the Worker’s return from absence, he did not comply with the updated policy in that he did not complete the annual leave request form for approval and in that he proceeded to travel to a non-green listed country in the knowledge that his leave was unauthorised.

The Worker was invited to an investigation meeting on 21st August 2020 to determine whether there were any reasonable explanation for his actions. Following the same, the Worker was invited to attend a disciplinary hearing on 25th September 2020. In the course of this hearing, the Worker submitted that he had applied for and was granted annual leave in the correct way. He stated that he sought a meeting with his supervisor but the HR manager as his supervisor did not approve his annual leave. An outcome in relation to this disciplinary meeting was issued on 29th September. Here, it was found that the Worker had taken a second trip to a high-risk country on a non-essential basis in an 8-month time-frame. It was further noted that the Worker had been allowed a 14-week period of unpaid leave from 8th April to 10th July 2020 in order to allow him to address personal circumstances arising from the restrictions. Finally, it was found that the Worker had every opportunity to complete the appropriate documentation to seek prior approval and had choose not to do so. In light of the foregoing, the sanction of a 13-week unpaid suspension was imposed on the Worker.

The Worker exercised his right of appeal of this sanction, with an appeal meeting being convened for 23rd October 2020. In the subsequent outcome, the Worker’s appeal was not upheld. In so finding, the appeals officer noted the Worker’s own knowledge of the seriousness of the national situation and his failure to seek to re-schedule his annual leave at an earlier time. Notwithstanding the same, the sanction was reduced to 10 weeks of unpaid suspension.

The Employer submitted that they conducted a fair process regarding the Worker’s disciplinary sanction and were satisfied that no issue or factor that might have reasonably influenced the final decision was left unexplored. It was further submitted that the Respondent acted entirely reasonably in disciplining the Worker. They submitted that the sanction imposed on the Worker was in fact lenient, as dismissal was in contemplation throughout the process. They submitted that the Employer was faced with a significant and unprecedented pandemic and had a considerable duty of care to the business and the livelihood of over 1,100 employees. They stated that the amended policy was implemented in accordance with government health guidelines. The new policy gave clear and unambiguous instructions regarding the steps to be taken if an employee intended to travel internationally. Finally, it was submitted that the Respondent acted reasonably in applying the penultimate sanction of 13 weeks unpaid suspension on foot of his breach.  

In the present dispute the Worker alleges that he was subject to an unwarranted and disproportionate disciplinary sanction. In particular, he states that he followed the rules to the best of his ability and did not put any of his colleagues at risk by virtue of his international travel.

The first point to be noted in this regard is that the Worker could not have possibly been unaware of the precarity of the national situation during the first half of 2020. He became aware of the implementation of the restrictions during an international trip and had to self-isolate on his return as a consequence of the same. Shortly thereafter, the Worker was granted a leave of absence to address issues that arose in his own domestic situation as a direct result of the pandemic. Following on from the same, it would be reasonably expected that the Worker would be extremely conscious of the restrictions and amended rules that would have implemented on his return to work. In this regard, I note it is accepted that the Worker was aware of the amended rules regarding proposed international travel and the process that must be adopted in relation to the same.

Having examined these rules, I note that they are unambiguous and clear in relation to the Worker’s obligations arising from the same. I further note that the Worker did not properly engage with these rules. By the Worker’s submission he sought an informal meeting with HR to discuss the issue, rather than complete the relevant form. Having regard to the same, it is not surprising that the matter was not addressed in good time and the matter was discussed the day prior to the commencement of the Worker’s annual leave. Following this conversation, the Worker could not have been in any doubt that his proposed international trip was not sanctioned by the Employer, and consequently he would potentially face sanctions on his return. In this regard, I note that the Worker knowingly disregarded a clear and direct management instruction. 

Regarding the sanction imposed, I note that the Employer treated the matter seriously, indicating that the allegation may attract the sanction of dismissal on the invite correspondence. In this regard I note that the Employer operates in an area that was badly affected by first waves of the pandemic and consequently they are entitled, if not obliged, to ensure that all health and safety measures are complied with. In this regard, I do not find the invocation of potentially severe disciplinary sanctions to be unreasonable in this instance.

At the hearing of the matter, the Worker raised issue with the policy itself, stating that an employer is not entitled to dictate what an employee does during annual leave. At the outset, I note that this is not a position adopted by the Worker in the appeal of the initial sanction. Even so, if the Worker disagreed with the terms of the policy, they were perfectly entitled to bring their objections to the attention of management through the internal processes at the relevant time.  

Finally, the Worker has raised issue with the manner in which the HR manager spoke to him during the short meeting of the 20th August. In this regard, I again note that this matter was not raised by the Worker on appeal, and consequently was not investigated by the Employer as part of the process. I note that this is essentially an inter-personal dispute between Worker and the HR manager. In circumstances whereby this matter was raised under the internal procedures to address such inter-personal complaints, and in contemplation of the rights of the other party to the complaint, it would be inappropriate to address the matter in this forum. 

Having regard to the accumulation of the foregoing points, I find that the invocation of the disciplinary process was not unwarranted and the sanction imposed on the Worker was not disproportionate.

I find that the invocation of the disciplinary process was not unwarranted and the sanction imposed on the Worker was not disproportionate. In such circumstances I do not recommend in favour of the Worker.

Annual leave, international travel, restrictions.