ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000992
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00001401-001 | 10/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00001489-001 | 15/12/2015 |
Date of Adjudication Hearing: 05/04/2016
Workplace Relations Commission Adjudication Officer: David Iredale
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Sales Adviser | A Retail Company |
Background:
The Claimant is currently employed as a Sales Adviser in the Respondent’s store on Henry Street. She works 20 hours per week and is paid a gross monthly salary of €1,200.27.
The Respondent has a benchmark for absenteeism of 3 separate incidents of absenteeism and an absence level of 3% over a rolling 26 week period. Employees with an above average level of absenteeism attend a formal meeting and are issued with a ‘letter of concern’ that is a precursor to the disciplinary process if there is no improvement in attendance.
The Claimant was issued with a verbal warning under the disciplinary procedure regarding her absence level on 20th July 2015. She appealed this sanction and attended an Appeal Hearing on the 10th September 2015 with her trade union official and the Assistant Store Manager. On 17th September 2015 the Claimant was informed that her appeal was unsuccessful.
The Claimant’s union official made further representations, by correspondence, to the Respondent on 2nd October 2015. Having received no response to this correspondence, the matter was referred to the Workplace Relations Commission where it was referred to an Adjudication Officer for investigation and adjudication.
Claimant’s Arguments:
1. The Claimant submits that in the circumstances the sanction was excessive and disproportionate. At all times she complied with company policy and provided the appropriate medical certification where necessary. Two of the Claimant's absences were linked to the same condition. Furthermore, the absence management policy was inconsistently applied as could be shown by the example provided at the Appeal Hearing of a colleague who had similar absence levels but was not issued with any disciplinary sanction.
2. The Claimant stated at her appeal that two of her illnesses were linked. . The manager who heard the Claimant’s appeal confirmed in the minutes that she would “…follow-up [the Claimant’] points before confirming whether [she] will uphold or overturn the original decision.” No follow-up actually took place prior to the decision to sanction the Claimant as she was not asked to provide further evidence relating to the two periods of illness or asked for her permission to allow the Respondent’s doctor consult with her GP. The Claimant submits that had the Claimant’s linked illnesses been investigated, the appeal hearing would not have resulted in a finding of being unable to find any connection between the Claimant’s illnesses.
The Union made further representations to the Respondent on the 2nd October 2015 and provided a letter from the Claimant’s doctor confirming that two of the absences were indeed linked.
3. The Claimant has 19 years service and during her employment has never previously been sanctioned for absenteeism. The Respondent should have taken the Claimant’s record into account as it clearly demonstrates that she does not have an absentee problem. The Claimant submits that issuing her with a Verbal Warning was excessive and disproportionate in the circumstances.
Respondent’s Argument’s:
The Respondent has a clear policy in relation to absenteeism. When the Claimant had been absent on 3 occasions and her absenteeism exceeded 3% in a rolling 26-week period, she attended a meeting where she was issued with a letter of concern regarding her level of absence and informed of the potential consequences of further absenteeism. The Claimant was issued with a Verbal Warning when she was again absent and her absenteeism of 8.2% was more than double the acceptable level.
The Claimant was at all times afforded the principles of natural justice and the disciplinary process was conducted in accordance with the Respondent’s Disciplinary Procedures. While the Respondent accepted that the Claimant’s absences, both certified and uncertified, were genuine, the level of absenteeism was unacceptable. The Respondent submits that issuing the Claimant with a Verbal Warning was reasonable and proportionate in the circumstances.
The Respondent introduced the cases of Pfizer Chemicals Corporation v Carroll UD 749/1980 and Mooney and Others v Rowntree Mackintosh ltd UD 473, 474, 475 and 478/1980 where the Employment Appeals Tribunal (the “EAT”) held, respectively, that disciplinary action for certified and uncertified absence and for intermittent short-term absences as fair, subject to the application of fair procedure.
Findings:
As held by the EAT in the Pfizer and Rowntree Mackintosh cases, I find the Respondent is entitled to take disciplinary action, subject to applying fair procedure, during the investigation, disciplinary and appeals processes where it deems an employee’s absenteeism to be unacceptable and where the absenteeism is made up of short term occasions of certified and uncertified illness.
The Claimant argued that the fact that as two of her absences were linked due to being for a continuation of the same complaint, they should not have been deemed to be separate occasions of absence and therefore the sanction was unreasonable in the circumstances.
While it was open to the Respondent as to how it viewed separate occasions of absence for reoccurring complaints, I find in this case that the Chairperson of the Appeal Hearing’s finding that the absences of 11 May 2015 and 16 July 2015 were not linked was a factor in her decision to uphold the Verbal Warning. At the Appeal hearing the Chairperson committed to “follow-up [the Claimant’s] points before confirming whether I will uphold or overturn the original decision”. In her letter of 17 September 2015 the Chairperson confirmed that “I fail to see the absences that you refer to” as being linked. I found no evidence to show that the Chairperson, contrary to her commitment to follow-up this point, had carried out any investigation into whether there was a link between the two periods of absence. It would have been a simple matter to have got the Claimant’s permission to contact her GP who would have confirmed that there was a link between the two periods of absence. While such a finding may or may not have altered the decision to confirm the Verbal Warning, the Chairperson should have investigated whether there was a linkage and if so whether that was sufficient reason to overturn the sanction.
Decision:
Having fully considered the submissions made by the parties and based on the findings set out above, I find that the Respondent should have investigated whether there was a linkage between two periods of illness, as argued by the Claimant, and that the result of that investigation should have been considered by the Chairperson prior to deciding on the Claimant’s appeal. In the circumstances and in light of the Claimant’s long service without being previously sanctioned for unacceptable attendance, I recommend that the Verbal Warning be rescinded and removed from the Claimant’s personnel record.
This recommendation is unique to the circumstances of this case and forms no precedent in respect of the Respondent having to treat reoccurrences of the same illness as one period of absence. The Respondent, based on the circumstances of each particular case, is entitled to view each period of absence, albeit for the same complaint, as separate occasions of absence or otherwise as it deems reasonable.
Dated: 20 December 2016