Worker

Employer

Anonymised Parties

Paramedic

Health Service

Act

Dispute Reference No.

Date of Receipt

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

CA-00041122-001

18/11/2020

The worker brings this dispute based on his exceptional personal challenges that have given rise to an absence level that precludes him from being appointed to a supervisory grade. While successful at interview and placed on a panel; the additional requirement to meet a set  attendance percentage has meant that the offer to appoint him was withdrawn.

He believes that his absence from work is directly related to a complaint he made about another employee, concerning oppressive behaviour that contributed to stress and his absence. This is analogous to an absence that may arise from an occupational injury, which would be excluded for the purposes of determining if a candidate met the attendance threshold.

The worker is recognised  to be committed and very well qualified for the role. He has recognised by his employer to be highly competent; well qualified and also very flexible and extremely accommodating .

The employer recognises the contribution that the employee has made to the service and his high level of commitment and expertise. That was also recognised by the recruitment board when his application was deemed to have met the specific criteria for the supervisory role and placed on a panel. Unfortunately, the requirement to meet a specific attendance threshold applies to all on the panel.

After a careful review of the workers attendance record it shows that there have been a number of separate and distinct reasons for each absence. The employer cannot accept one view over another when a grievance has been raised concerning what the worker sees as oppressive behaviour. They owe a duty to be fair to both parties in such a dispute. The employer has not been able to conclude the grievance investigation as the other party has left the service.

The worker was on a panel and was denied promotion arising from not meeting the attendance threshold. The underlying cause of that absence or most of it related to an unresolved dignity at work issue. That absence should be classified analogous to an occupational injury that in turn would not be included in the calculation of the absence level.

The grievance could not be completed as the other party to the referral has left the service. A careful review of the absence indicates a number of different and separate reasons for being certified absent from work. The attendance threshold applies to others and is a necessary requirement prior to promotion. To separately consider the merits of each panel member based on their respective unique circumstances and causes of absence would create a chaotic situation. It would also significantly undermine the right of the employer to appoint based on sound objective criteria that are applied consistently.

The worker in this case is a highly respected work colleague who is very well qualified and recognised to be accommodative, helpful and very supportive to colleagues and management.

It is unfortunate that the worker experienced stress and attributes some absence to a difficult work situation. However, that matter cannot be relied upon to base this referral as a careful analysis does show that the absences arise for different reasons. It is also the case that the grievance has not been concluded and therefore it is not possible to determine if the grievance relating to workplace bullying would or would not be upheld.

Section 13 of the Industrial Relations Act states:

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner

And section 40(9) of the Workplace Relations Act 2015 provides:

(9) A reference in any enactment to a rights commissioner shall be construed as including a reference to an adjudication officer.

The precedent of displacing or undermining the requirement to meet a specific threshold of attendance would impact a group of workers and ultimately would if accepted created a very ad hoc system to appoint from panels.

There is no question that in this case the employee has had very genuine reasons for his non attendance at work. However, the requirement to meet a specific attendance level, while it is an impersonal measure, it is objective and fair. To displace it would lead to inconsistencies and unfairness. Therefore, while I have every sympathy for the worker and the circumstances that he encounters I cannot recommend in his favour and therefore must hold that the employer has applied the requirement based on good practice relating to transparency and consistency.

There is no question that in this case the employee has had very genuine reasons for his non-attendance at work. However, the requirement to meet a specific attendance level, while it is an impersonal measure, it is objective and fair. To displace it would lead to inconsistencies and unfairness. Therefore, while I have every sympathy for the worker and the circumstances that he encounters I cannot recommend in his favour and therefore must hold that the employer has applied the  attendance requirement fairly and based on good practice relating to transparency and consistency.

Attendance Requirement