FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MUSGRAVE SUPERVALU CENTRA LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-040553-Ir-06/JT.
BACKGROUND:
2. The worker has been employed as a Distribution Team Member (DTM) at the Company's Fonthill Road Depot since 1998. In July, 2005, a meeting was held with the worker to review his attendance record from January, 2004, (the Company reviews workers' attendances on a regular basis). The review established that the worker had been absent on seven occasions which totalled 27.5 duties ( 1 duty equals to a 10-hour day). The worker was issued with a verbal warning. The Union appealed the warning claiming that most of the absence was due to a back injury that the worker had sustained whilst at work.
The dispute was referred to a Rights Commissioner and his Recommendation was as follows:-
"I recommend that both parties agree a definition of authorised and unauthorised absence. Though the claimant has a poor record his recent absenteeism was due to an accident at work and that has to be accepted as genuine. I further recommend that the verbal warning should be withdrawn on the basis that the claimant was genuinely ill and on genuine absence in relation to his accident at work".
The Company appealed the Recommendation to the Labour Court on the 7th of November, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th of February, 2007.
COMPANY'S ARGUMENTS:
3. 1 The worker's attendance record since he was employed is extremely bad. Up to the verbal warning in July, 2005, he had a total of twenty two absences which equalled to 76 duties. He had been counselled and issued with a number of formal warnings prior to July, 2005.
2. The worker also had a number of absences which he had been allowed to "work up" so his absenteeism is even worse than his formal record.
3. The verbal warning is the lowest form of disciplinary sanction imposed by the Company and is very reasonable in the circumstances.
4. The Company operates a sick-pay scheme which pays full pay for the first six months so the worker was paid in full for the period in question.
UNION'S ARGUMENTS:
4. 1. Excluding a period of absence (13 days) which resulted from a back injury sustained at work, the worker was missing for three occasions totalling five days during a 16 - month period.
2. The work involved is physically demanding and returning early from an ailment such as a back injury would only prolong the recovery period.
3. The Union accepts the Rights Commissioner's Recommendation about agreeing a definition of authorised and unauthorised absence but, because the Company has rejected the Recommendation, no meeting has taken place.
DECISION:
The Court has considered the views of the parties expressed in their oral and written submissions. The Court notes the proactive approach taken by Management to control its levels of absenteeism in a business where dependability is of vital importance to the Company. In such circumstances, the Court accepts that these measures were appropriately applied to the worker in this case and consequently does not recommend in favour of the removal of the verbal warning issued for the level of absenteeism incurred in the period in question.
Therefore, the Court overturns the Rights Commissioner's Recommendation in its entirety and the Company's appeal succeeds.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th February, 2007______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.