LCR22609

1.Appeal Of Adjudication Officer Decision No. ADJ-00032054 CA-0002715-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 19 January 2022 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 16 December 2021 the Adjudication Officer issued the following Recommendation:-

“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.”

A Labour Court hearing took place on 4 May 2022.

DECISION:

This is an appeal by SIPTU of an Adjudication Officer’s Recommendation ADJ-00032054 on behalf of a worker with Rosderra Irish Meats Group. The appeal concerns a disciplinary sanction of 10 weeks unpaid suspension issued to the worker in September 2020 for a breach of the company’s annual leave procedure.

The Adjudication Officer did not find in favour of the worker’s claim and found that “the invocation of the disciplinary process was not unwarranted, and that the sanction imposed was not disproportionate”.SIPTU has appealed the recommendation and seeks that the Court recommends that the sanction is rescinded entirely, and that the worker is awarded an amount in compensation that reflects both his loss of earnings and the manner in which he was treated.

The background facts to this appeal are not disputed. In January 2020, the worker booked two weeks annual leave for later that year in August 2020. In March 2020, the worker returned from a period of annual leave and was required to self-isolate in line with public health guidelines. He was absent from work for a 14-week period from April 2020 for family reasons arising from the Covid 19 Pandemic. The worker returned to work in July 2020. Prior to the worker’s return to work, the annual leave policy was amended and all annual leave outside of Ireland was temporarily suspended other than leave for emergency or essential travel. New approval procedures were put in place for employees who intended to travel outside Ireland during their annual leave.

SIPTU submits that when the worker booked his annual leave in January 2020, he followed the correct procedure in place at that time. That leave request was approved. Once he learned of the amended leave policy on his return to the workplace, he informed his supervisor of his foreign travel plans and sought a meeting with Human Resources. On 21 August 2020, the day before he was due to fly to Tenerife, he met with the HR Manager and was informed that his leave was not authorised.

SIPTU contend that it was unreasonable to provide the worker with less than 24 hours’ notice withdrawing his previously authorised leave, as the notice period required for an employer to cancel a worker’s annual leave is 28 days. Furthermore, it is the worker’s prerogative to decide where he spends his holidays. He followed the company guidelines and Health and Safety protocol of self-isolation for 14-days on his return from leave. He did not place his colleagues at risk. He did everything that was asked of him and yet was disciplined with a sanction just short of dismissal. In the workers’ view, the sanction imposed by the HR Manager was completely personal.

The worker accepts that the self-isolation period required following his return from leave was unpaid leave. He suffered 12 weeks loss of earnings as his two weeks annual leave and ten weeks suspension were unpaid. The worker seeks that the sanction is rescinded entirely and seeks compensation to reflect his losses and the manner in which he was treated.

The company told the Court that the meat industry was faced with a significant and unprecedented challenges as a result of the Covid-19 pandemic. Production was deemed an essential activity to maintain continuity in the food supply chain. The company had a duty of care to the business and the livelihood of over 1,000 employees. A revised annual procedure was implemented, following consultation with the union, which was designed to ensure the health and safety of staff, limit the risk of spread of infections in the workplace, and protect the employment of the workforce. The company rejects the assertion by the union that the revised policy diluted worker’s rights, as the measure was aimed at protecting the health and safety of workers.

The policy was very clear in that all annual leave outside of Ireland was suspended other than leave for emergency/essential travel. All workers considering leaving the country were required to complete a form for approval by their supervisor and the Covid-19/HR Manager. The company had a multi-national workforce and many employees had leave arrangements curtailed. The worker did not comply with the new procedures. He did not complete an annual leave request form for approval and proceeded to take unauthorised annual leave in full knowledge that his actions breached the new policy. He was subject to a disciplinary investigation on his return into his failure to comply with the company’s annual leave procedure.

The company submits that it conducted a fair and objective process, in line with the agreed disciplinary procedures. The company rejects any assertion that the sanction issued was personal in nature. The sanction was both fair and proportionate in circumstances where the worker, in breach of company policy, took unauthorised leave in a nongreen listed country during the height of a global pandemic.

The company acted reasonably in applying a sanction of unpaid suspension of 13 weeks, provided for in the disciplinary policy, as the breach of procedure was treated as a matter of gross misconduct. The sanction was reduced to 10 weeks suspension on appeal. In support of its position, the Company referred the Court to the case ofSulfaqar Ali v Martin Jennings Wholesale LtdUD 563/2014 where the Employment Appeals Tribunal concluded that the taking of unauthorised annual leave amounted to gross misconduct and the sanction of dismissal was fair in those circumstances.

The Court has given careful consideration to the submissions made by both parties.

It is accepted that in January 2020, before any Covid-19 restrictions were contemplated or implemented, the worker had applied to take annual leave the following August, which was approved by his employer.

In normal circumstances, the worker could have expected to take his annual leave that August in the normal way. However, the matter before the Court must be viewed against the backdrop of a global pandemic which gave rise to exceptional and unprecedented challenges across all levels of society, including the meat industry.

The company implemented revised annual leave procedures, following consultation with the union, as a health and safety measure to limit the risk of spread of infection in the workplace. As a result all annual leave arrangements where an employee had plans to leave the country by plane or ferry were temporarily suspended and new approval procedures for anyone intending to travel outside Ireland for emergency or essential reasons were put in place. The policy although restrictive in nature reflected public health advice at that time to avoid non-essential travel.

SIPTU submits that when the worker returned to the workplace on 13 July 2020 he tried to comply with the policy and requested a copy of the approval form from his supervisor. He was not provided with a copy of the form. Ultimately, he approached the HR Manager on the day before his planned leave and at that point was advised that he had not completed the approval process and his planned leave was not authorised.

In the Court’s view, the worker was fully aware of the revised annual leave policy and the requirement to secure approval before taking leave outside the country. He was aware that the approval granted for his leave in August was no longer valid, yet he chose to travel to Tenerife in the knowledge that this leave was no longer authorised. In these circumstances, the Court finds that the company’s decision to invoke the disciplinary process was justified and reasonable.

The company submits that it conducted a fair disciplinary process and the sanction applied was proportionate. The HR Manager conducted the disciplinary investigation and found that the worker had every opportunity to complete the appropriate approval process but chose not to do so, as he knew the outcome would be not to authorise the leave.

In deciding on the level of sanction, account was taken of the worker’s travel to a high-risk country on a non-essential basis earlier that year, and the fact that the worker was allowed a 14-week period of unpaid leave from April to July 2020 to look after family members.

The company told the Court that the sanction of 13-weeks unpaid suspension, which is provided for in the agreed disciplinary procedure, was issued as an alternative to dismissal. That sanction was reduced to a 10-week unpaid suspension on appeal.

It is clear that the company regarded the matter under investigation to be a serious one that could potentially lead to a finding of gross misconduct and a sanction of dismissal. Procedural fairness must lie at the heart of any disciplinary investigation, and particularly so when the matter under investigation is an allegation of gross misconduct.

While the Court finds that the decision to invoke the discipline procedure against the worker was warranted, the duplication of roles undertaken by the HR Manager calls into question the fairness of the disciplinary process. Having advised the worker that his leave was not authorised, the HR Manager went on to conduct the disciplinary process and decide on a sanction of 13 weeks unpaid suspension.

In such circumstances, the HR Manager cannot be considered to be an impartial decision maker. There was no clear separation of investigation and disciplinary processes. This could have been addressed in an organisation the size of the employer by allowing another member of management to conduct the disciplinary hearing.

Furthermore, the Court does not find it reasonable that the employer took account of the worker’s travel to another country in earlier that year when deciding on the level of sanction to be awarded. No public health restrictions were in place in early March when the worker returned from his leave, and he was unaware that public guidelines would require him to self-isolate on his return. The Court is also of the view that the decision-maker should not have taken account of the fact the worker’s leave for family reasons in arriving at his decision.

Notwithstanding procedural flaws in the process, the Court finds that the worker contributed significantly to the situation that arose. He was fully aware that his decision to take annual leave in August 2020 without approval was a breach of company’s revised procedures.

In those circumstances, the company’s decision to discipline the worker for such a serious breach of procedures was justified. However, for the reason outlined above, the Court is of the view that the severity of the sanction applied was not proportionate. Having regard to all of the circumstances, the Court recommends that the level of sanction is reduced to one week’s unpaid suspension.

The recommendation of the Adjudication Officer is varied accordingly.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
OC	______________________
10 June 2022	Deputy Chairman