Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

Maria Nolan Mandate Trade Union

Eimear Greenhalgh IBEC

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 - 00002237

19/02/2024

The complainant is employed as a weekend manager in the respondent’s store. Employment commenced on 1st July 2009 and is ongoing.

This complaint was received by the Workplace Relations Commission on 19th February 2024.

In complaints heard under the Industrial Relations Act the complainant is referred to as the worker and the respondent is referred to as the employer.

Background:

The Worker is a loyal, hardworking member of staff employed in the Dun Laoghaire store with 15 years' service and holds the position of Weekend Manager. She has an unblemished record of employment with the Company.

On 21st October 2023, the Worker arrived at work. She wanted to talk to her Store Manager to notify him that she would not be able to work Saturday 28th October. She was told that the store manager was on holiday. She then spoke to the Department Manager and told him that she could not work on the 28th, because she had to take it as a holiday, he replied that she should talk to the Assistant Manager. This was the first time that the worker had met the Assistant Manager, as she was new to the store, and the Worker had not met her before as both had not been in on the same days. The worker informed the Assistant Store Manager that she was not able to work Saturday 28th October, it was the bank holiday weekend and that she only works two days, and that she was working Sunday and Monday and would not be working the Saturday, but she would take as a holiday.

The worker worked Sunday 22nd, Sunday 29th and Monday 30th October. She was sick on Saturday 4th November and notified her Store Manager of this. The worker arrived at work on Sunday 5th November, and the Assistant Store Manager asked her to go to the office. When the worker entered the office the Assistant Store Manager stated that it was a back-to-work meeting. This was the first back to work meeting the worker had ever had since joining the company in 2009.

The Assistant Store manager asked why the worker was not at work on 28th October and 4th November; at this time, 28th October did not register with the worker and she replied, “I cannot remember I must have been sick". The Assistant Store Manager stated that these dates were going to be investigated, the worker was confused and said to her "investigation for being out sick??". The Assistant Store Manager then replied that it would be a conversation.... the worker asked her "Is it an investigation or a conversation?". The Assistant store manager replied, it will be an investigation with a conversation about these dates. The worker left the office and checked the calendar to remind herself of 28th October. She then realised that was the bank holiday weekend and she had told Management she would not be able to work on that day. The worker returned to the office and told the Assistant Store Manager that she "was not out sick Saturday 28th, I told yourself and the Department Manager that I would not be able to work that day, and I will speak to the Store Manager “.

 On 6th November, the worker sent an email to the Store Manager, who replied on 7th that they should discuss this issue in person, and that he was aware of the back-to-work meeting. He also stated that in terms of the investigation, the worker may be invited to an investigation meeting. The worker spoke to the Store Manager in the store on 11th November and asked why she was being investigated. She stated, "that if this was about being sick, there has been days that she asked off as a holiday and had been paid sick, so maybe they think she had been sick more than she actually was". The Store Manager said, "it had nothing to do with that".

It is important to note that in the back-to-work meeting and the discussion with the Store Manager nobody mentioned to the worker anything about unauthorised absence.

 On 15th November, the worker received a letter of invitation to an investigation meeting this was the first time that an unauthorised absence was mentioned.

On 18th November, the Investigation Meeting took place at Dun Laoghaire store. The meeting was with a People & Culture Manager for Tallaght. At this meeting, the worker explained what had happened and stated that she spoke with two Managers about taking leave on one of the days over the October Bank Holiday weekend. Also, the first time the worker heard this meeting was about an unauthorised absence was in the letter that the People & Culture Manager for Tallaght had sent her at the end of this meeting, the worker was told she would hear back within seven days, which is in the notes, and did not happen. The worker had expected to hear back on 25th November, when she heard nothing, she queried it with her Store Manager who replied he knew nothing about the situation.

On 28th November, the worker received an invitation to a Disciplinary Hearing with a different People & Culture Manager for Monday 4th December to take place in Dundrum store. Monday is not a working day for the worker and she asked for it to be moved to one of her working days. The meeting was rescheduled for Sunday 10th December as a virtual teams meeting. The People & Culture Manager for Tallaght went through the whole scenario again, and on numerous occasions she asked the worker did she know unauthorised absence was viewed as gross misconduct. The worker told her she was aware of this, but in her case, it was not unauthorised as she had told a Department Manager and the Assistant Manager that she was taking it as holidays.

On 22nd December, the worker received a Verbal Warning for unauthorised absence.

On 22nd December 2023, the worker emailed her appeal to the Area Manager.

The worker outlined three grounds for her Appeal:

·       The Company did not follow the correct timeline procedure..

·       The absence was not unauthorised. 

·       The Company again, did not follow procedure, as one of the Manager's involved was not asked to give a Statement.

On 13th January 2024, the worker’s appeal was held with the Store Manager Tallaght, in the Dun Laoghaire Store.

On 22nd January 2024, the worker received the outcome of her appeal from Store Manager Tallaght, which was the upholding of the Company's decision to issue a Verbal Warning.

Union's Position.

The Company's Disciplinary Procedures outlines under gross misconduct that Witnesses may be interviewed, and Witness Statements taken. The worker outlined at her various meetings that she informed two members of management that she was taking a day's holiday over the October Bank Holiday weekend. Management only interviewed one of these Witnesses and failed to interview or get a statement from the other which we maintain is a breach of their own procedures as well as S. 1. 146 of 2000. It is important to note that the manager interviewed confirms that the worker told her she was taking 28th October 2023 off.

At the conclusion of the Investigation Meeting the worker was told by that she would receive the outcome of the Investigation in 7 days, which did not happen and is another breach of procedures and Natural Justice.

It is the worker’s contention that the culture in Dun Laoghaire in the fourteen years she has been there, is that there were never return-to-work meetings and that holidays and days off were by word of mouth. When the worker was brought in for the back-to-work meeting, it was never stated that the meeting was about unauthorised absence, and this left the worker very confused when she was called to an Investigation Meeting for unauthorised absence. Again, another example of breaches of their own procedures and Natural Justice.

In December 2022, the worker returned from long-term absence and agreed with Head Office that she would only be working two consecutive days, because she had accrued so many holidays during her long-term absence and she had to take them within a certain time frame. She took the Saturday of every Bank Holiday as a day's holiday and is very confused why on this occasion it was so different and resulted in an Investigation for unauthorised absence. Furthermore, it is important to note that she was paid a sick day for this alleged unauthorised absence. It is our contention that if it were unauthorised absence then she would not have received payment for a sick day.

The worker was issued with a Verbal Warning in December which remains on her file for 6 months. It is the worker’s strong contention that the issuing of such a warning to her was blatantly unfair given the fact that she informed two Managers that she was taking 28th October as a day's leave. Also, in conducting the Disciplinary Process, Management breached their own procedures as well as S.I. 146 of 2000 and Natural Justice by failing to interview one of the Managers that the worker spoke to about taking the day's leave and by the Investigation Manager failing to communicate to the worker the outcome of the Investigation within the 7 days outlined in the minutes of the Investigation Meeting.

In the Labour Courts Decision LRC22052 the Court states "that it finds that the Employer's decision to commence disciplinary action against the Worker was unjustified and inappropriate. Ipse forte, the outcome of the disciplinary action - the Final Written Warning - should never have been placed on the Worker's personnel file and, therefore, the record of that warning should be removed from the file".

It is the worker’s strong contention that she should not have been issued with any form of Disciplinary Sanction and as such any record of such a sanction should be removed from her Personnel File.

Conclusion:

It is the worker’s strong contention that she followed the practice of informing Management that she was taking leave on 28th October, and this is supported by the agreement reached with Head Office when she returned from long-term absence to facilitate her using up the vast amount of leave she had accumulated whilst on long term absence.

As outlined above we strongly argue that Management breached their own procedures as well as S. 1. 146 of 2000 and Natural Justice.

We are asking for you to rule on the merit of the sanction and not the status of the sanction, as it will expire shortly. Therefore, we are requesting that you declare the Claimant's case is well founded and overturn/adjust the sanction issued to her by stating that Management were wrong in issuing such a Sanction/Warning in this case.

Background to the Worker

The Worker joined the Employer as a Weekend Manager in the Dun Laoghaire on 1 July 2009. The Worker normally works Saturdays, Sundays, Mondays and Public Holidays. Her roster was published on the notice board in the store managers office 4 weeks in advance. The roster runs from Sunday to Saturday. She works approx. 14 hours per week and receives circa €360 weekly, net.

The Worker requested to only work Saturdays, Sundays and Public Holidays after returning from long term leave. This resulted in her normally working 2 days per week.

The Worker was rostered to work on Saturday 28 October 2023. The week beforehand, the Worker told 2 Managers that she would not be in as she only works 2 days a week. The Managers the Worker informed were not the store manager and did not have authority to sanction time off or any changes to the roster. The Worker was aware of the procedure involved in requesting time off and was fully aware of who the appropriate contacts in store would be to address any queries with the roster.

The Worker was absent from work on 28 October 2023 and 4 November 2023. Management received no contact from the Worker on 28 October 2023. The Worker contacted the store on 4 November 2023 and stated that she was sick.

The Worker returned to work on 5 November 2023. Following her return, the Worker had a return-to-work meeting. During the meeting, the Employer raised that she did not follow the correct absence procedure.

On 18 November 2023, the Worker attended an investigation meeting. The People and Culture Manager conducted the investigation. The Team Manager was also present to take notes. The Worker was accompanied to the meeting by her representative. In summary, they discussed why the Worker did not attend work on 28 October 2023 and the Worker stated that since she returned to work, she only works 2 days and when it comes to a bank holiday weekend she takes the Saturday off.

Following the investigation, a disciplinary meeting was held on 10 December 2023. The People and Culture Manager conducted the meeting. A Department Manager was present to take notes. The Worker was accompanied to the meeting by her representative. In summary, they discussed why she was not in work on 28 October 2023 and why she told the managers she did and did not follow the normal procedures for seeking time off. She stated she was out 4 November 2023 due to a migraine. They also discussed her return-to-work meeting.

Unauthorised absence is outlined as gross misconduct within the Employer’s handbook/Disciplinary Policy. However, after considering everything, the People and Culture Manager felt that a verbal warning was appropriate. Normally a First or Final Written warning is deemed the most sanction appropriate for a breach under Gross Misconduct.

On 21 December 2023, the Worker was issued with a formal verbal warning. The letter stated the reasons for the warning and that the warning would be active of the file for a period of 6 months. This warning is due to expire on 21 June 2024 at which point it will be moot and removed from the Worker’s file.

The Worker appealed her verbal warning to an Area Manager. The following reasons were outlined for the appeal:

• The Company did not follow its procedures in coming back in a timely manner.

• The Worker felt that they had informed management that they would not be in on that date.

• Not everyone the Employer spoke to was met with as part of the investigation.

She also requested that the appeal was heard by someone else. A senior Store Manager was appointed to hear the appeal.

An appeal hearing took place on 13 January 2024. A Store Manager conducted the appeal. A Team Manager was present as a note taker. The Worker was accompanied to the meeting by her representative. They discussed each of her appeal points as previously outlined.

The outcome of the appeal was issued on 22 January 2024.

Based on the following reasons the appeal was not upheld:

• You were rostered to work on the date in question.

• You did not request the time off and instead informed two managers who were not authorised to approve time off for you that you would not be working this day. In our meeting you stated you request time off in mail to the store manager to approve.

• You did not book this time off. You decided on your own to take this day and did not seek if it was suitable to the store

• You were paid a sick day in error for this date.

• There was delay in sending your response to you by a few days due to time off and peak trade.

• The line manager was not spoken to as part of the investigation as the assistant store manager confirmed as the senior manager you had spoken to her however, she nor any other managers excluding the Store Manager are authorised to approve days off.

Employer’s Position

The role of an Adjudication Officer in an IR referral is to “investigate any trade dispute referred to him, and shall, unless before doing so the dispute is settled, make a recommendation to the parties setting forth his opinion on the merits of the dispute.”

This does not allow the Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation should be; their role within an Industrial Relations hearing is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000). Respectfully, it is not the function of the Adjudication Officer or Court to form an opinion as to whether the Employer was objectively correct in their conclusions; their role is to establish if the Employer acted fairly in its dealings with the Worker.

In the case of Cash in Transit Driver v Security Transport Employer (ADJ 00025311), it was deemed that the process was handled within the parameters of the Employer’s policy correctly. The disciplinary process was conducted in line with the Employer’s policy and the Adjudicator could not agree with the Worker’s criticism that the investigation was bias, unfair and flawed. Therefore, the Adjudicator was satisfied that the Employer acted fairly at all times.

The Employer’s position is that the investigation of the disciplinary and appeal process was conducted fairly, and that the Employer behaved reasonably. The Worker was, at all times, afforded all benefits of fair procedure, in line with the Employer’s established policy, the Code of Practice of Grievance and disciplinary Procedures (S.I.146 of 2000) and the universal principles of natural justice. Moreover, the Worker seeks to rely on being advised by the investigation that an outcome would be issued within 7 days as outlined in the minutes of the Investigation Meeting. There are no defined time limits in the Employer’s policy pertaining to the outcome of an investigation so there was no breach of the Employer’s established policy.

In the case of Euro Car Parts Ireland Limited v, A Worker (LCR22092), The Court decided that “In relation to the process followed and the report issued, the Worker could not point to any failure by the Employer to follow the Employer procedures, rather his issue appears to be that he disagrees with the findings of the Investigator. The Court finds that the Worker’s complaint was investigated in a fair manner and on that basis the appeal must fail.”

There is a clear process for requesting days off in store and the Worker is fully aware of the process (as she has followed this process on numerous occasions). The Employer cannot operate a store where colleagues can merely advise management that they are not working. The roster was in place for 4 weeks, so the Worker had ample opportunity to speak to the store manager before his annual leave regarding requesting the day off. No call was made to the Worker when the unauthorised absence occurred as it is not standard process to reach out to colleagues who failed to attend work on their scheduled day, save in circumstances where there is a significant concern for their wellbeing. The Employer is not disputing that the Worker spoke to the line manager about wanting the day off. However, the Worker is aware that the assistant manager does not have the authority or sanction to approve roster changes so his exclusion from the investigation is moot. Moreover, the Worker is aware of this and who the appropriate people are in store to address concerns regarding the roster and the method for booking days off.

Conclusion

The Employer’s position is that the process was procedurally fair in all respects and that taking everything into account the sanction of verbal warning was also fair. The Employer followed their disciplinary procedure in full the Worker was offered the rights to natural justice at each stage. Therefore, we would respectfully request that you uphold the Employer’s position

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The representative for the employer has pointed out what the task for the Adjudication Officer is in complaints such as this submitted under the Industrial Relations Act.

The basic task for the Adjudication Officer is to look at the procedures, were they correctly followed and was the outcome an outcome a reasonable employer would make?

The following is an extract from the employer’s submission:

Unauthorised absence is outlined as gross misconduct within the Employer’s handbook/Disciplinary Policy.

Gross misconduct has recently been described by the Workplace Relations Commission as being ‘at the zenith of possible charges relating to a disciplinary procedure (A Security Guard Supervisor V A Security Company – ADJ – 00003427 – 30/03/2017).

The Employment Appeals Tribunal in Lennon v Bredin (M160/1978) referred to serious misconduct in the following terms:

‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serios category.’

I believe this now presents two questions:

1.       Is unauthorised absence really gross misconduct?

2.       Is a verbal warning a suitable sanction for an act of serious misconduct?

One other question arises, why was the worker’s store manager not present at the hearing? The worker has stated that she normally just spoke to the manager and also that she had never been asked to attend a return-to-work meeting after an absence. It would have been helpful if the store manager had been in attendance to either agree or disagree with these statements made by the worker.

In coming to a conclusion, I now recommend that the verbal warning issued to the worker is rescinded.

Industrial Relations Act