Complainant

Respondent

Anonymised Parties

A Worker

A Manufacturing Employer

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-00047124-001

11/11/2021

The worker submits that he should not have received a verbal warning and should not have been told to take an annual leave day in respect of his absence for attending to his daughter when she was in hospital.

The worker submits that he is also the trade union convenor, is unhappy that the employer issued him a verbal warning and he is also unhappy with the manner in which his supervisor dealt with the dispute.

The worker submitted that his daughter was due to undergo surgery at the hospital in May 2021 which he discussed with his supervisor Mr A.  The worker told his supervisor he did not think he should have to take that day as an annual leave day and that the purpose of annual leave is for rest and relaxation and attending to his daughter at the hospital could not be considered rest and relaxation.  The worker did not attend work the day of the surgery and expected the day to be recorded as unauthorised absence.  He was surprised when his supervisor Mr A told him he should take it as annual leave and the worker was then disciplined when he would not take the day as an annual leave day.  The worker denied using inappropriate language to Mr A.  The worker appealed the decision on the grounds of not using inappropriate language, spending the day at the hospital, which was not a vacation, the failure by the employer to give him one months’ notice of annual leave and the failure of the company to tell him he would receive a verbal warning.  The decision was not overturned at the appeals meeting June 11th, 2021.

The employer submits that the worker received a verbal warning for poor performance and inappropriate behaviour on 26th May 2021 and the warning was live for 9 months.  The warning has now expired since 25th February 2022 and the employer acted fair and reasonably in all the circumstances and in line with LRC21862 the WRC cannot expunge something that no longer exists, and the warning no longer exists.  It was further submitted that the worker did not reference any other dispute in his complaint form other than the dispute around the verbal warning.

The employer also submitted that the employer wished to reduce the annual leave balance of workers to a more manageable level and that employees were requested to use their carried over 2020 balance before the end of June 2021.  The worker had raised a grievance around this which was not upheld. The worker was requested to use his annual leave for the time off that he requested to attend to his daughter, but the worker did not do so and did not attend for work and therefore, his absence was considered unauthorised.  It was submitted that the worker told Mr A to “shove them up his f***king hole” and that in advance of the disciplinary meeting the worker further told Mr A to have HR present as it would not be pleasant for him (Mr A).

The worker is seeking the removal of the verbal warning and a recommendation around the requirement to take annual leave.  The employer submits there is no merit in the worker’s dispute, the employer acted fair and reasonably, and the warning has now expired.

I have listened to submissions from both parties, and I note that the warning has now expired and as set out by the Labour Court in LCR 21674

“the ….warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists.

It would further appear to me that the emotions of the dispute prevented the worker and Mr A having a more reasonable discussion on the matter.

In all of the circumstances my recommendation is as follows:

The verbal warning has expired therefore, I do not make any further recommendation on this as the matter is moot.

The worker and the employer should continue to use agreed existing and future mechanisms to deal with matters of this nature.

The verbal warning has expired therefore, I do not make any further recommendation on this as the matter is moot.

The worker and the employer should continue to use agreed existing and future mechanisms to deal with matters of this nature.

Verbal warning, annual leave