Complainant

Respondent

Anonymised Parties

A Worker

Service Provider to Financial Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts / Sick Leave Act 2022

ADJ-00048825

17.Nov. 2023

The claimant’s complaint was received by the WRC on the 17.Nov. 2023 .In his complaint form the claimant identified his complaint as falling under the Industrial Relations Acts. He submitted as follows in the complaint form:

“I have been given a written warning for absence. Previously, I was given a verbal warning due to a number of absences. I then fell sick , missed 1.5 days of work , submitted a doctor’s note and claimed sick pay as per Sick Pay Act 2022.After this incident I was given the written warning which has since been upheld after appeal. I believe this to be contrary to SECTIONs 11.(1), 11.(2) and 12(1) of the above Act”. The respondent submits that the complaint was wrongly filed under the Industrial Relations Act and denies any breach of legislation.

The claimant submitted that the complaint involved a time line of events and that at the end of the time line the respondent acted contrary to the Sick Leave Act 2022.The claimant submitted that he had a number of unplanned absences from work for his own illness and family illness. Due to a high level of absence, he was disciplined with a verbal warning on the 25th.Sept. 2023.

The claimant said he became very sick with flu like symptoms while at work on the 12th.October 2023.He was absent for 1.5 days and submitted a medical cert and availed of Sick Pay as per the Sick Leave Act 2022.The claimant submitted that subsequent to this the respondent disciplined him with a written warning. The claimant asserted that this was contrary to the following Sections of the Sick Leave Act 2022 :

11(1) Without prejudice to any contractual or other right that an employee may , apart from this provision, otherwise enjoy , an employee shall , during a period of absence from work by the employee while on statutory sick leave , be treated as if he or she had not been so absent and such absence shall not affect any right related to the employee’s employment whether conferred by statute , contract or otherwise

And

12.(1) An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

The claimant elaborated on the unplanned absence – he said the basis of his complaint was not any other actions taken under the Sick Leave policy but the ensuing action arising from his 1.5 days when he was ill at work on the 12th.Oct. 2023 and had to avail of 1.5 days and in respect of which he submitted a medical certificate. While the claimant acknowledged he was paid for the absence , he received a written warning on the 6th.November .The claimant asserted that the issuing of the warning constituted a breach of Sections 11 and 12 of the Sick Pay Act – that he had been treated as being absent contrary to Section 11 and that he was penalised for exercising his rights under the Act by being issued with a warning.

The claimant was not disputing the other sanctions that had been imposed by the company.

The respondent’s representative submitted as follows:

The case concerns Mr F (herein known as the Claimant) against his employer  (herein known as the Respondent) under the Industrial Relations Acts. 

The complaint submitted to the Workplace Relations Commission (WRC) is attached

The Respondent disputes the claim being made and refers to the detailed arguments below. Preliminary Point:

The Respondent would note with the Adjudication officer that the Claimant is claiming breaches of Section 11(1), 11(2) and 12(1) of the Industrial Relations Act 1969.

The Respondent would note that Section 11 was repealed on the 18th July 1990.

Fair employment rules.

11.—F14[…]

Annotations

Amendments:

F14

Repealed (18.07.1990) by Industrial Relations Act 1990 (19/1990), s. 7 and sch. 2, commenced on enactment.

The Respondent would further note Section 12 (1) relates to registered employment agreements and therefore is not the subject matter relevant for this claim:

Enforcement of sections 10 and 11.

12.—(1) An inspector for the purposes of Part IV of the Principal Act (in this section referred to as an inspector) may, for the purpose of enforcing the provisions of sections 10 and 11 of this Act do all or any of the following things, that is to say—

(a) enter at all reasonable times any premises where he has reasonable grounds for believing that any person affected by a registered employment agreement or fair employment rules works,

(b) require the production of wages sheets or other records of remuneration kept by an employer and inspect and examine those sheets or records and copy any material part thereof,

(c) examine with respect to any matters under section 10 or 11 of this Act or this section any person whom he has reasonable grounds for believing to be or have been a person affected by a registered employment agreement or fair employment rules and require such person to answer such questions (other than questions tending to incriminate such person) as the inspector may put relating to those matters and to sign a declaration of the truth of the answers to the questions.

Substantive Claim-

Background to the Claimant:

The Claimant commenced employment on the 07th Nov 2022. The Claimants role is that of customer service advisor, his rate of pay is €12.70 per hour.  This is a fast-paced area of the business and performing is key or else financial impacts can be seen to the client services. The Claimant was disciplined a number of times over the last number of months as a result of poor attendance in the role.  

In line with our Attendance Policy in September 2023, absence was managed on a 6 month rolling period. When Mr.F’s  file was submitted in September, we were only reviewing the absence in the previous 6 months (April 2023 to September 2023). We made a change to our Attendance Policy which was communicated to All Staff on the 25th August 2023 however did not come into effect until the 25th September 2023 as we were providing 4 weeks’ notice of the change. The change was in relation to how we manage absence. Previously was over a 6 month period but updated to a 12 month period. The Claimant’s  file was submitted to the HR department for an absence review on the 13th September which meant we were still operating under the previous 6 month policy.  

Background to the Claim:

Absence:

The Claimant was absent from work on the 12th  in Dec 2022. He returned to work on 19th December 2022 and had a return-to-work interview with his line manager on the 19th Dec 2022.

The Claimant was absent on 22nd April 2023 and a return-to-work interview was held with the Claimant and his line manager on the 26th April 2023-

The Claimant was absent on 28th June 2023 and a return-to-work interview was held with the Claimant and his line manager on the 3rd July2023-

On the 27th July 2023 the Claimant had a documented discussion with his line manager regarding his levels of absenteeism plus a return to work interview for a 1 day absence occurrence on the 26th July 2023.

 – Also evidenced in Appendix 6 isa documented conversation on the 27.07.2023 plus a return to work form dated the 26.07.2023.

On the 12th Sept 2023 the Claimant had a return to work interview with his line manager as a result of a further absence for the 8th Sept. –

On the 17th Oct 2023 the Claimant had a return to work interview with his line manager as the Claimant was absent on the 12th Oct for 1.5 days and logged off from 14.30hrs – 17. 30hrs. Once the Claimant returned to work a documented discussion occurred. –  Documented conversation 12.10.2023.

In total the Claimant had 11 days of absences during 2023.

On the 27th July 23 the Claimants line manager highlighted the issue of absenteeism and advised that further absences may result in his file being reviewed by people operations as he had 3 absences within 6 months.  The Claimant had nothing to add.

On the 18th Sept 2023 the Claimant was invited to a disciplinary meeting this was relating to 4 absences in a 6 month period. – See appendix 8 disciplinary meeting invite 18th Sept 23.

On the 25th Sept the Claimant was given a verbal warning for his 4 absences. – See Appendix 9 Disciplinary outcome. Verbal Warning.

On the 25th Sept the Claimant appealed this outcome of this warning to the appeals officer. – see appendix 10 appeal request.

On the 02nd Oct 23 the Claimant met with the Appeals officer minutes of the meeting are noted at appendix 11.

On the 5th Oct 23 the Claimant was provided with an outcome from the appeals process  - the Appeals Officer  noted the following points in her decision:

Attendance Policy: The original sanction was imposed in accordance with our company's attendance policy, to which you agreed upon commencement of your employment. This policy serves as a framework for maintaining fairness and consistency in our approach and sets clear expectations regarding attendance and outlines the consequences of excessive unplanned absences.

Absence Circumstances: We recognise that unexpected situations can occur, and we empathise with your need to provide care for your son during the first instance. However, it is essential to emphasize that it was expected, given the information you shared regarding your wife's recovery, that you would have considered the possibility of a similar situation arising again and made appropriate preparations for its recurrence.

Impact on absence: I understand that the loss of earnings can have a direct impact on you; however, please remember that it is only one aspect of the broader effects of unplanned absences on our organization. Frequent unplanned absences have a direct and adverse effect on the operation. It can disrupt workflow, affect team productivity, and potentially impact customer service, all of which were discussed during the hearing.

Attendance Record: It is important to highlight that a thorough review of your attendance record since commencing employment less than 12 months ago revealed an accumulation of 99.5 hours of absence, which is more than 2.5 working weeks. This level of absenteeism is a matter of significant concern, demonstrating a concerning attitude toward attendance at work.

The Appeals Officer  noted that the Claimant since the 07th November 2022 had amassed 99.5hrs of absence in less than 12 months. The Appeals Officer upheld the sanction of verbal warning.

On the 12th Oct 23 the Claimant was absent from again, he provided his employer with a sick cert.

On the 25th Oct the Claimant was met by Ms F who conducted another disciplinary meeting. –

On the 6th Nov 23 the Ms F wrote to the Claimant with her decision. The Claimant received a first written warning as he had another absence within the 6-month period after being given a verbal warning for absence. It was highlighted to the Claimant that his level of absenteeism was unacceptable and that this warning would be held on file for a period of 9 months from the 6th Nov 23 to the 6th August 24. The Claimant was afforded the right of appeal.. 

On 8th November 2023 date the Claimant appealed the first written warning. 

On10th November 2023 the head of HR  emailed the Claimant to invite him to an appeal hearing listed for the 15th Nov 23. –  

On 8th November 2023 the Claimant raised a suggestion of bullying aimed at Ms F. on the 10th November 23 .The Head of HR noted that this was a serious allegation and referred the Claimant to the appropriate policy.  She  clarified this would be separate to the instant disciplinary matter and referred the Claimant to raise a complaint with is line manager. - See Appendix 17.

 On the 16th Nov the Claimant had a query pertaining to the sick leave act and the  Head of s HR answered his query on the 17th Nov. –

On 15th November 2023 the Head of HR  met with the Claimant.

On the 17th Nov  she  gave the Claimant her findings that:

Absence

You have been issued with a written warning relating to your high levels of absence. In a 10 month period, you were absent from work on 6 occasions, totalling 11.5 days. This is a significantly high rate, and is above and beyond what is deemed as an acceptable level of attendance.

At the appeal hearing I asked you to present to me your case for the outcome to be overturned/changed or lessened. Instead of giving me reassurances that it could be expected that your attendance would improve, you clearly stated that you feel it is unreasonable to expect you to be absence free between now and next August.

Three of your six absences related to family illness and/or childcare commitments. You stated at the meeting that this may occur again in the future and that you have no alternative arrangements in place to meet this eventuality.

The culmination of all the above does not demonstrate an understanding of the importance of maintaining a good level of attendance. In fact you appear to believe that your absence record to date is acceptable, which in itself is a cause for concern.

The Head of HR upheld  the decision to give the Claimant a first written warning. –

On the 17th Nov 23 The Claimant was emailed the decision and on the same day emailed the Head of HR back noting that the matter would be referred to the WRC. She  replied by confirming the Respondents engagement.

The Respondent has displayed the level of absenteeism that the Claimant has had so far in his employment and in the submission set out a  chart showing  the levels of hours missed. Cumulatively the Claimant has missed 110 hours of work. 

Company Arguments:

The Respondent would say that the definition of absence is: ‘Unscheduled disruption of work due to days lost as a result of sickness or any other cause not excused through statutory entitlement or company approval’ .

The Respondent would say that it is long accepted in law that short term illness have detrimental effects on the Company’s ability to manage its affairs and business. While the Respondent does note that the matter before the Commission does not pertain to a dismissal the facts surrounding the instant case bear relevance to case law that has shown that an employer is well within their rights to dismiss an employee that has sustained periods of absenteeism up to and including certified leave for the avoidance of doubt.

The Respondent would draw the AOs attention to Mooney v Rownetree Mackintosh ltd. UD473,474,475 and 478/1980.

Pfizer Chemicals Corporation V Carroll UD 749/1980.

With regard to the instant case the Respondents would say that just as in the aforementioned cases a Respondent is entitled to dismiss an employee (fairly) the same applies that a Respondent company is entitled to discipline an employee.

The Claimant was disciplined in line with their Absence policy noted at appendix 20.

Disciplinary policy:

As per the Respondent policy the Claimant was given counselling about his absences and no change occurred in fact further absence was the resultant effect. Noted at page 5 are examples of “misconduct”. They note:

Misconduct

The following are examples of misconduct:

• Bad timekeeping.

• Unauthorised absence.

 • Minor damage to company  property.

• A minor breach of the company rules.

• Failure to observe procedures.

Incapability

The following are examples of incapability:

• Poor Performance.

• Incompetence.

• Unsuitability.

• Lack of Application.

These examples are not exhaustive or exclusive and incidents of similar nature will be dealt with under this procedure.  Provided that conduct/attendance/performance remains satisfactory, any warnings under these procedures will be removed from the employee’s records after one year.

As per the Respondents disciplinary policy the Claimant has been disciplined in accordance with the polices to which he agreed at commencement of employment and in accordance with the contract of employment noted at appendix 2.

Absence policy:

The Respondent absence policy notes at page 1 last paragraph that: Employees wellbeing is important to us. The respondent  is aware that the majority of employees work hard and attend work on a regular basis. A high level of absence not only affects the business, it also impacts on other colleagues. It should be noted that the company  may utilise the disciplinary procedure to deal with circumstances where an employee’s absence is too high.-

Summary:

In summary, the Claimant seems to have issue with the Respondent managing his absence either certified or not at all. The Respondent would say that it has at all material times adhered to SI146/2000 and the policies governing the contract of employment and sought to manage an employee with high levels of absence. 

We ask that you find in the Company’s favour and dismiss the aforementioned claims.

The respondent referenced the claimant’s attendance record  - certified and uncertified and submitted that when viewed over a 12 month period his sick leave was excessive. It was submitted that the warning was not in dispute .It was submitted that the respondent had complied with the provisions of the company’s absence policy and the representative referenced the  September 2023 warnings and appeal where the company had outlined the logic for their decisions to impose the sanctions and not uphold the claimant’s appeal. It was submitted that the complaint was not lodged under the Sick Pay Act .It was advanced that the claimant was not penalised as he had been paid for the time off. It was submitted that the warning was appropriate and issued correctly. It was submitted that the company had service level agreements with a diversity of clients and that absences resulted in costs for the clients. It was submitted that the claimant had not identified what right had been infringed and that the claimant was selectively quoting from Section 11.It was submitted that the complaint was lodged under the Industrial Relations Act – that the claimant was not penalised and that the warning was issued because of excessive absences and had nothing to do with the claimant’s Sick Pay.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. With respect to the matter of jurisdiction – while I acknowledge that the complaint was wrongly identified as an IR compliant in the complaint form , I am satisfied that the respondent was on notice that the claimant was relying on the provisions of the Sick Leave Act 2022 for a remedy and that this was clear from the narrative submitted by the claimant where he specifically referenced   Sections 11 & 12 “ of the above Act”. Accordingly, I am satisfied that I have jurisdiction to investigate the complaint under the Sick Leave Act 2022 and that this is consistent with the principles set out in Louth VEC v. The Equality Tribunal [2016] IESC40.

Section 11 of the Act provides as follows:

11(1) Without prejudice to any contractual or other right that an employee may , apart from this provision, otherwise enjoy , an employee shall , during a period of absence from work by the employee while on statutory sick leave , be treated as if he or she had not been so absent and such absence shall not affect any right related to the employee’s employment whether conferred by statute , contract or otherwise.

It is clear from the chronology of correspondence submitted by the respondent and their records of the disciplinary hearing on the 25th.Oct. 2023  that the issuing of a written  warning to the claimant on the 6th.Nov. 2023 was  linked to   the claimant’s absence on certified sick leave on the 12th.October 2023.While I acknowledge the respondent’s denial of a breach of the Act and their assertion that they were adhering to the provisions of their attendance and disciplinary policy  , the wording of the Act provides that an employee on statutory sick leave   shall be treated as if he or she has not been so absent and shall not affect any entitlements .In these circumstances , I must conclude that the respondent’s actions in taking the  claimant’s absence on the 12th.October 2023  into account in imposing  a sanction of a written warning is in breach of the Act – as the Act is written it implies that the claimant “be treated as if he or she had not been so absent”. Accordingly I am upholding this element of the complaint.

12.(1) An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

The issuing of a written warning to the claimant was communicated to him on the 6th.November 2023.The chronology of correspondence between the parties indicates the matter of a breach of the Sick Leave Act was raised by the claimant on the 15th.November.In these circumstances  and in light of the fact that the imposition of the sanction predated the claimant’s assertion of a breach of the Act , I find no evidence of penalisation on the part of the respondent. Consequently, I am not upholding this element of the complaint.

I accept the claimant’s contention that the 1.5 days sick leave taken in October 2023 were taken into account by the respondent in imposing a sanction of a written warning on the 6th.November 2023 and that this constitutes a breach of Section 11 of the Act and I require the respondent to pay the claimant 3 weeks pay - €1,428.75 – for breaching Section 11 of the Act.

With respect to the complaint of penalisation and given the time lines and chronology of events preceding the imposition of the warning I find no compelling evidence was advanced to support the complaint of penalisation and accordingly I am not upholding the compliant.

Sick Pay Act 2022 – Breach of Section 11/ Penalisation