Employee

Employer

Anonymised Parties

A Beauty Products Counter Manager

A Marketing, Sales and Distribution Company

Representatives

Mandate Trade Union

Arthur Cox Solicitors

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000301

24/05/2022

The employee commenced with the company in 2007 and she works in a sales role in a department store.  In March 2020, the store closed due to Covid-19 restrictions and the employee was laid off.  In June 2020, the government announced some easing of restrictions and the department store re-opened on June 22nd.  The employee was ill due to stress and anxiety and she submitted medical certificates and did not return to work.  On the advice of her doctor, she went to her summer home in Italy.

Disciplinary Investigation

The company sick pay scheme provides that an employee who is absent due to illness receives a top up of their social welfare illness benefit so that they receive net pay for 32 weeks of absence.  On September 2nd 2020, when the employee did not respond to a request to confirm where she was when she was absent and the date of her return, her division manager suspended payment of the top-up.  On September 4th, the employee confirmed that she had been in Italy and that she had returned on August 26th.  She attended an appointment with the company’s occupational health doctor on September 16th and her sick pay was restored on September 28th.  In November 2020, following the intervention of Mr Keith Pollard of Mandate, the employee was paid the three weeks of sick pay which had not been paid in September.

The employee returned to work on May 10th 2021, but she was out sick again from June 1st.  She attended an appointment with the occupational health doctor on June 16th.  A follow-up appointment was arranged for August 5th, but the employee said that she would not attend because her doctor and the company doctor had advised her to take holidays.  A disciplinary investigation was then initiated by the employee’s division manager.  The finance director was appointed to conduct the investigation and a meeting took place on November 25th 2021, at which the employee was represented by Robert McNamara of Mandate.  Before the disciplinary investigation was completed, on December 9th 2021, the employee submitted a grievance about her treatment by the division manager. 

As part of the disciplinary investigation, the finance director met the employee and her union official again on January 19th 2022.  On February 25th, he issued his findings in relation to the disciplinary investigation.  He found that, in the context of the Covid-19 pandemic, it was not unreasonable for the employee to be required to say where she was while she was absent, but that there was no specific provision in her contract or in the company handbook that required her to do so.  No disciplinary sanction was imposed.

Grievance Investigation

On January 20th 2022, the group managing director commenced an investigation into the employee’s grievance.  The employee attended a meeting on that day, accompanied by Mr Jim Fuery of Mandate.  On February 9th, the managing director met the division manager who was the subject of the grievance and he met the employee’s line manager on February 14th.  On March 1st, he issued his findings.  He concluded that, in her interactions with the employee, the division manager was “professional, considered, thorough and timely.”  He referred to the employee’s request in July 2020 to her line manager and the division manager not to contact her while she was out sick because it was making her anxious.  The managing director found that the division manager’s communication to the employee was clear and intended to get the best outcome for the employee and the business.  He did not uphold the employee’s grievance and he concluded that no further action was required.  The employee appealed this finding to the chairman of the board of directors at a meeting on March 15th 2022.  In his report dated April 4th, he “found no reason to overturn or set aside the grievance outcome.”

The employee is appealing against the findings of her employer in the outcome of its investigation into her grievance.  In accordance with section 13 of the Industrial Relations Act 1969 (as amended), I am required to conduct an investigation and to make a recommendation on how the dispute might be resolved.  

The Employee’s Outline of her Grievance

At the hearing, the employee spoke about the suspension of her sick pay in September 2020 and her sense of being treated harshly by the division manager.  Her view is that during her absence due to stress and anxiety, the company’s communications with her have been misleading, there has been a lack of empathy and understanding and she feels that she is being pushed to resign.  She said that the emails sent to her were abrupt at times, and she felt that the weekly calls when she was absent were too much.  However, she also complained that the division manager never phoned her to see how she was.

In December 2020, the occupational health doctor recommended that the employee was fit to return to work in January 2021 on a phased basis.  As we all know however, in January 2021, Covid-19 restrictions were re-introduced and non-essential retail outlets were closed again.  For this reason, the employee was laid off again.  The department store where the employee works re-opened on May 10th 2021 and the employee returned to work.  She went absent due to illness on June 1st. 

On November 15th 2021, the employee was sent a copy of the company handbook.  In early December, she said that she decided to submit a grievance about her treatment by her division manager and she sent a letter to the managing director.  In summary, her grievances are as follows:

She claims that she was treated unfairly when she took time off to travel and recuperate in August 2020 and she was suspended from the company’s sick pay scheme.

When she agreed to return to work in January 2021, she was issued with a rota for nine weeks.  Although she was in charge of doing the rota for 13 years, she was told that this would no longer be her responsibility.  She was rostered for three Sundays in nine weeks (later changed to one Sunday in four) and she was not asked about any plans or appointments she had in advance of sending her the rota.

Also in January 2021, the employee heard that her colleagues received a free allocation of company products in December 2020, but she didn’t receive any.  She was informed that this was because she was on long-term sick leave.  She said that she felt very disappointed about this, and excluded from the team.

When she was ready to return to work in May 2021, the employee asked about using up her accrued annual leave and about taking parental leave.  She requested leave from July 4th to August 29th 2021, comprising 12 days of accrued holidays, five public holidays and four weeks of parental leave.  She was informed that she had accrued six days of holidays and seven public holidays.  Because the department store had been closed from January until May 2021, her request for parental leave was refused.  The employee said that she presumed that she would be allowed to take this leave, as she had taken it in previous years “without any hassle.”

The employee returned to work on May 10th behind closed doors and back to normal trading on May 17th. 

The division manager was on annual leave on May 31st and the employee sent a text message to her colleague to let her know that she was unwell and that she had an appointment to see her doctor.  On June 1st, she submitted a medical cert for the month of June.  She attended an appointment with the company’s doctor on June 16th.  She was requested to attend a follow-up appointment on August 5th, but she was abroad trying to get better and she was unable to attend.  She said that the division manager had a private communication with the occupational health consultant regarding her recommendation to the employee to take time off.  She said that she never agreed for this communication to take place “behind my back” and she said that, as English is not her first language, her interpretation is that “time off” means the same as “holidays.”  

On August 25th 2021, following her appointment with a company doctor at a virtual consultation over Zoom, the employee said that the doctor’s report was sent to her by someone she did not know, because the division manager was on holidays.  She complained that the medical report was sent to her without a password.

When I asked her what she expected from my enquiry, the employee said that she wants justice and that she wants to be heard.  She said that she got a fair hearing from the managing director regarding her grievance.  She said that she wants her free allocations of products that she didn’t get and she wants to be given the responsibilities that she used to have, including responsibility for the rota in the store where she works.  She said that she wants to be treated the same as others.

The Union’s Position

The union’s position is that the employer failed to provide the employee with a copy of the company handbook in advance of removing her from the sick pay scheme in September 2021.  Her sick pay was only restored after the intervention of her union official.

On the basis of an already flawed process, the company entertained a complaint against the employee by her division manager.  Mr Fuery referred to the Labour Court decision in the case of Tesco Ireland and Ann Faherty[1]which, he said, has distinctive parallels with this case.  In its decision on that matter, the Court noted that the failure to provide copies of policies to Ms Faherty was a fundamental breach of natural justice and fair procedures.

Mr Fuery submitted that senior managers in the company failed to remain impartial in the disciplinary investigation and the grievance investigation.  He said that there were difficulties at each stage of the process, and, at the appeal, the chairman was resistant to hearing certain aspects of the employee’s appeal.  He said that the outcomes from these processes result from the employer failing to provide the employee with a copy of her contract, their policies, their staff handbook, clarification regarding her holiday entitlements, her sick pay and free product allocations.

At the end of the hearing, the employee said that a review of the documents provided to her following her data access request demonstrates to her that she was being pushed to come back to work.  She said that she doesn’t trust the company any longer and she said that there is no humanity.

In advance of the hearing, the employer’s side provided a submission setting out their case that there is no basis for the WRC to “look behind the robust and thorough process that was undertaken” by the employer in line with their grievance procedure.  In the document, the chronology of events that led to the outcome of the grievance investigation of March 1st 2022 is set out and most of the fact are not in dispute.

It is the employer’s position that, in the context of the employee’s request for parental leave which was refused, her subsequent sick leave and her failure to attend a consultation with the company doctor on August 5th 2021, she may have been in breach of her contract of employment and a disciplinary investigation was carried out into her conduct.  On November 25th 2021, the finance director concluded that the division manager’s request to the employee to attend appointments with the occupational consultant were not unreasonable.  He also concluded that disciplinary action was not warranted because the employee did not have a copy of the company handbook or her contract of employment. 

The employer’s submission also refers to the investigation into the employee’s grievance regarding the division manager.  In his report of March 1st 2022, the managing director concluded that the manner in which the division manager communicated with the employee was reasonable, balanced and fair, and the employee’s grievance was not upheld.  This finding was upheld on appeal in a report of the chairman of the board of directors April 4th 2022.

The employer’s submission sets out the three stages of the company’s grievance procedure, starting with an informal intervention between the aggrieved party and their manager, moving to an investigation by senior management and then a referral to “an appropriate body.”  The employer’s case is that the employee’s grievance was dealt with expeditiously, fairly and in accordance with their processes.  They submitted that the employee received a reasoned decision at each stage of the process.

The employer accepts that the employee remains dissatisfied that her grievance was not upheld.  However, they asked that I dismiss the matter, because the issues the employee complained about have been thoroughly investigated.

I have reviewed all the documentation provided to me by both sides in this dispute.  From this, it is evident to me that the employee is regarded as a capable and valued member of the sales team in the department store.  From the perspective of the retail environment in 2020 and 2021, the business had been closed for more than 50 weeks and the summer of 2021 was expected to be busy, with an opportunity to make up for some of the losses during the Covid shut-downs.  I think it was understandable that the employer wanted the employee to come back to work and I find that it was not unreasonable to ask her to postpone taking parental leave.  I also find that it was understandable for the division manager to have concerns when the employee went out sick in June 2021, when her request for parental leave had been declined.  I found the employee to be an articulate and intelligent person, and, having worked in a retail environment for 15 years, she has excellent English.  I do not accept that she confused the doctor’s recommendation to take time off work with a recommendation to go abroad.  I have no concern about the fact that the employee went to her summer home in Italy to recuperate; however, it is apparent that, for a period of time, she resisted informing her employer of this fact, on the basis that she was not legally required to do so.

I accept that, when the disciplinary investigation commenced, the employee was not in possession of the company handbook, or a copy of her contract of employment.  Unlike the Tesco v Faherty case to which Mr Fuery referred, the employee was provided with these documents during the investigation.  However, it is my view that, if she had been in possession of the handbook and her contract from the beginning, this would have made no difference to the disciplinary investigation or the outcome of the grievance procedure.  The effect of the Covid-19 pandemic on businesses meant that some actions had to be taken which were not provided for in contracts and handbooks.  I find that the employer’s request to the employee to let them know what country she had been in when she was on holidays and the date of her return was not unreasonable, even though this requirement was not stated in the sick pay scheme or in her contract of employment.

I have considered the employee’s outline of her grievance and her desire to be treated with respect.  Based on the volume of correspondence between her and various managers, and particularly the division manager, I find no evidence that she was treated disrespectfully.  It is my view that, at all times, the division manager communicated clearly with the employee and that she dealt with her patiently and with concern for her health, and with the objective of getting her back to work.  This is not an unreasonable position for a manager to take and it reflects the importance of the employee’s contribution to the business in the store where she worked.

I have also reviewed the detailed notes of the grievance meeting which was held on January 20th 2022 and I find that the employee was listened to and the arguments that she and her union official presented were carefully considered by the managing director.  At the hearing at the WRC on January 11th 2023, the employee accepted that she had been listened to.

Based on the conclusions I have set out above, it is my view that the outcome from the grievance procedure in March 2021 was reasonable and fair and I recommend that the employer takes no further action regarding the employee’s grievance.  I recommend that the employee engages with her line manager and that she seeks support from the company’s employee assistance programme with a view to preparing for a return to work.

Absence due to illness, grievance procedure, sick pay procedure