ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00045596
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | A Retail Outlet |
Representatives | Self-represented | Ms Mallon, BL, instructed by Mason Hayes & Curran |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Section 13 of the Industrial Relations Act 1969 | ADJ-00045596 | 27/04/2023 |
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Date of Hearing: 25/09/2023 & 13/12/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard and to present any information relevant to the dispute.
Background:
The worker was employed from 26th June 2022 up to 5th April 2023 when he was dismissed due to attendance issues. His complaint is that he was unfairly dismissed. |
Summary of Workers Case:
The worker’s case is that he was not afforded due process and that the sanction of dismissal was not proportionate. He explained the reasons for his absences and as he was going to be compliant in future there was no reason for his employer to decide on the ultimate sanction of dismissal. There were adequate reasons for his non-attendance at an earlier investigation and too much emphasis had been placed on this non-attendance. His employer did not give adequate consideration to his responses during the disciplinary process. |
Summary of Employer’s Case:
The employer denies the dismissal was unfair. The worker was afforded due process in accordance with procedures. The number of lates along with unapproved absences were serious issues. The management of the store required reliance on staff to turn up for work on time and remain for the duration of the roster. Given the nature of the business, absence without leave is included in the company disciplinary procedure as an example of gross misconduct. |
Conclusions:
In conducting my investigation, I have considered all relevant submissions presented to me by the parties. The worker’s attendance record was considered over an extended period. As matters escalated, his attendance did not improve. Even though there were reasons as to why he could not attend the investigation meeting, he still had a further opportunity to make his case during the disciplinary process. He was allowed to be accompanied although he did not bring anyone to the meetings. The investigations were conducted by managers from outside the store. He could have appealed the decision and decided not to. As the employer followed the disciplinary process and due process, I find that the dismissal was not unfair on procedural grounds.
On the proportionality of the sanction of dismissal, although attendance matters may not always be considered as gross misconduct, the worker left the store for a considerable period without informing a manager. The company procedures state that absence without leave can be considered as gross misconduct. The decision maker considered other sanctions although was not convinced that attendance would improve. The decision maker did not consider the explanations and excuses of the worker as adequate during the disciplinary process.
For the reasons outlined above, I find that the decision to dismiss was proportionate and one which could have been considered by a reasonable employer under similar circumstances.
For the reasons outlined, I recommend that the worker accept that the dismissal was not unfair. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
For the reasons outlined, I recommend that the worker accept that the dismissal was not unfair.
Dated: 27th September 2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Fair Procedures, Proportionate Sanction |