ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00001853
Dispute 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-00002555-001 | 11th February 2016 |
Date of Adjudication Hearing: 16th May 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Acts 1969, 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 by me and to present to me any evidence relevant to the dispute.
Summary of Trade Union Case:
I was issued with a Final Written Warning on the 11th January, 2016. I appealed the Warning on 20th January 2016. On 21st January 2016, I was informed the Warning was being upheld. |
The Trade Union said the dispute relates to the imposition by the Respondent on the Complainant of a Final Written Warning. The Trade Union contends that the Final Written Warning was excessive and was not justified and they are seeking to have the Final Written Warning removed.
The Complainant is employed by the Respondent as a skilled operative in their Boning Hall. He has worked for the Respondent over a 20 year period and continuously for the last 6 years.
The Complainant was absent from work due to illness on 5th and 6th January 2016, and he returned to work on 7th January 2016. On Friday 8th January 2016, he attended a back to work interview with an Administrative Support Person (initially the Complainant said that this Administrative Support Person conducted the Meeting, however subsequently he said she recorded the meeting, and it was conducted by a named Manager). He explained that he had lost his mobile telephone on Christmas Week and so he did not have any telephone numbers to contact the Respondent on 5th January 2016. In addition he had been unable to get an appointment with his Doctor. The Administrative Support Person recorded the interview and left it to be signed by the named Manager.
Approximately 2 hours after the back to work interview the Complainant was informed that he was to attend a Disciplinary Hearing on Monday 11th January 2016, in relation to a second occasion of unauthorised absence due to his not following reporting procedures. At this Disciplinary Hearing the Complainant raised serious concerns that the process was being rushed and he believed the main reason for this was the fact that he had received a written warning on 12th January 2015, that was due to expire the next day. After the Disciplinary Hearing the Complainant was issued with a Final Written Warning.
On 20th January 2016, the Complainant submitted an appeal of the Final Written Warning and the Appeal Hearing chaired by the General Manager was held on 20th January 2016. On 21st January 2016, the General Manager wrote rejecting the Appeal and upholding the Final Written Warning.
The Trade Union said the Complainant had received a Written Warning on 12th January 2015, for unauthorised absence on 2nd January 2015. On that occasion it was 10 days after the absence before the warning was issued. In the instant case the Complainant was informed on the same day as his back-to-work interview, Friday 8th January 2016 that he was to attend a disciplinary hearing the next working day, Monday 11th January 2016. Consequently, the Written Warning from 12th January 2015 was still active and he was issued with a Final Written Warning.
The Trade Union said that the timescale for the disciplinary process was rushed for the Complainant in comparison to other employees. The Trade Union referred to a named other employee who was absent from 13th to 15th January 2016; he attended a back-to-work interview on 18th January 2016, and he was informed by letter of 26th January 2016, one week later that he was to attend a disciplinary hearing on 1st February 2016, another week later. The Trade Union said there is a substantial difference in the manner the disciplinary process was applied to this employee compared to the Complainant.
The Trade Union referred to the outcome of the Appeal Hearing with the General Manager; at paragraph 2 he states that he checked the relevant paperwork and the return to work questionnaire was signed and dated on 7th January, and letter of invite was not sent till 8th January “therefore it was impossible for you to receive it within 2 hours of completing the return to work questionnaire.”
The Trade Union said the return to work interview was held on Friday 8th January 2016; it was not possible for the Administrative Support person to be at the interview on 7th January 2016, as she was on holidays and they produced a list on employees on holidays for that day, which included her.
The Trade Union said that although the questionnaire is signed by the Complainant, it was completed by the Administrative Support Person and when the date at the top and bottom is compared they were obviously written by the same person, in addition at the date beside the Manager’s signature there is clearly a number 8 under the 7.
The Trade Union referred to another named employee, who was absent from work from 30th December 2015, to 5th January 2016. This Employee was also called for his back to work interview on 8th January 2016. A copy of a statement from him was enclosed in which he confirmed that on 8th January 2016, he was asked to go the Boning Hall Office; he also confirms that his interview “was recorded by (the named Administrative Support Person). I was followed by (the Complainant) who also received his return to work interview by (the named Administrative Support Person). The named employee is clear and certain that his interview was on 8th January and he remembers the Complainant did his interview after him with the named Administrative Support Person.
The Trade Union said that for audit purposes back to work interviews should be carried out the same day as the employee returns to work. During audits customers would check the paperwork in relation to absences, which would include back to work health questionnaires.
The Trade Union said at the Disciplinary Hearing on 11th January 2016, the Complainant also raised the issue that his Hearing was being rushed as another named employee, had not even been called to his back to work interview and he had an unauthorised absence 2 weeks prior the Complainant, the named employee had a back to work interview that day (11th January).
In the General Manager’s letter regarding the outcome of the Appeal he states that he has “checked the details and there were other employees given the same warning as you who were issued with their letters and warnings as expediently as yours…….” The Trade Union said as a Shop Steward the Complainant has attended disciplinary hearings with members and he is not aware of any other employee who was dealt with as quickly as himself.
The Trade Union referred to the Respondent’s Timekeeping and Attendance Policy; and at Page 3 it starts under Unauthorised Absence that: “The above is the general rule, which will be applied. The above does not preclude the Company from the taking into account of special circumstances and the previous disciplinary record of the employee concerned.” The Trade Union said in this case the Complainant had an excellent disciplinary record prior to January 2015 and his next absence after 2nd January 2015, was a year later on 5th January 2016.
The Trade Union submitted a copy of the Report from the Complainant’s Doctor dated 21st April 2016, confirming that he was “undergoing investigation for chronic diarrhoea alternating bowel habit, symptoms present since last Christmas”.
The Trade Union said the Respondent do not appear to have taken the circumstances of the case and the Complainant’s previous disciplinary record into account.
The Trade Union said the Complainant has admitted that he did not abide by Company Policy, but in this instance a Final Written Warning was not justified.
The Trade Union said the speed at which the Disciplinary Hearing was arranged after the back to work interview was held ensured that the Written Warning received the previous year was still active and this was then escalated to a Final Written Warning.
The Trade Union said that other employees have not been treated in the same manner in relation to the disciplinary process. Further incorrect dates were on the back to work questionnaire, when it could not have been held on the stated date of 7th January 2016. The Complainant’s previous excellent disciplinary record was not taken into account.
The Trade Union said the original absence occurred on 2nd January 2015 and the second on 5th and 6th January 2016. The Trade Union said that natural justice would demand that the same procedures should be applied for both and that it is only fair and reasonable to expect that the original warning would have expired between the two incidents.
The Trade Union and the Complainant submitted that for all of the above reasons and taking all factors and circumstances of the case into account the issuing of the Final Written Warning was not justified or warranted and sought a recommendation that it be removed.
Summary of Respondent’s Position:
The Respondent said that the Complainant submits that he unfairly received a Final Written Warning on 11th January 2016. The Respondent said they reject the Complainant’s complaint and submit that he was fairly treated in accordance with policies agreed between the parties.
The Respondent said that the Complainant commenced employment with them on 31st January 2011.
On 2nd January 2015, the Complainant was absent for a period of one day and he failed to make contact with the Respondent or cover his absence with a medical certificate. Under the Respondent’s Time and Attendance Policy this is deemed an unauthorised absence. He was requested to attend a disciplinary hearing on 12th January 2015 and he received a Written Warning in accordance with the Time and Attendance Policy. The Complainant had the right to appeal this Written Warning, but he did not do so.
On 5th January 2016, the Complainant was absent for 2 day period and on this occasion him:
failed to make contact with the Employer before 10am on 5th January
did not submit a medical certificate for his absence
failed to make contact with the Employer before 4pm on the day prior to his return to work
Under the Respondent Time and Attendance Policy this is deemed unauthorised absence. The Complaint was requested to attend a Disciplinary Hearing on 11th January 2016.
Following this Disciplinary Hearing, this was a second period of unauthorised absence and as he had an active written warning the Complainant had a Final Written Warning issued in accordance with the Time and Attendance Policy.
The Complainant exercised his right to appeal this decision and the Appeal was heard on 20th January 2016, by the Plant Manager and the Complainant was represented by his named Shop Steward. The Complainant accepted that his behaviour amounted to unauthorised absence, but he alleged that the disciplinary hearing was rushed through in order to make a decision before the written warning then active on his file expired. During the Hearing the Complainant accepted that he:
had failed to make contact with the Employer before 10.00am on 5th January 2016
did not submit a medical certificate for his absence
had failed to make contact with the Employer before 4.00pm on the day prior to his return to work
The Plant Manager confirmed the outcome of the Appeal on 21st January 2015. He found that the letter requesting the Complainant to attend the Disciplinary Hearing was not sent out until the day after the back to work interview, which the Complainant had signed and dated; he further found that there was no preordained or agreed timing or sequencing of when disciplinary hearings take place and the key factors are that issues be deal with as timely as possible and there was no rush in issuing the Final Written Warning. For these reasons the Complainant’s Appeal was not upheld.
The Respondent said the Attendance and Timekeeping Policy was negotiated with the Trade Union on 11th June 2007 and revised on 18th July 2008, and it has been in operation in this manner since then, with a full understanding by both Management and the Trade Union. The Complainant as a Trade Union Shop Steward was fully familiar with the Policy and the potential penalties for any breaches of same.
The Attendance Policy clearly outlines that more than one instance of unauthorised absence will attract a Final Written Warning. The Complainant accepted that his absence was unauthorised, but he challenged the level of the warning issued. The Respondent said that they, in issuing a final written warning, were only implementing the agreed policy in a consistent fashion.
The Respondent said that the Complainant’s assertion that he was ‘harassed’ by rushing the disciplinary hearing is unfounded. An unnamed employee was absent on 2nd January 2015, he did not contact the Employer, in the am or the pm, no medical certificate was submitted. A Disciplinary Hearing was held and a Written Warning was issued on 9th January 2015. This Employee was absent again on 21st December 2015: a Disciplinary Hearing was held and a Final Written Warning was issued on 23rd December 2015.
The Respondent submitted that they reasonably and fairly applied the terms of the Time and Attendance Policy, which was negotiated with the Trade Union.
For all of the foregoing reasons the Respondent sought a finding in their favour and that the claim be rejected.
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13(3) of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
It is not in dispute that the Complainant was on unauthorised absence on 5th and 6th January 2016 and I accept that this is not a fact that the Respondent could allow to pass unmarked or be completely outside the disciplinary process.
I note the following in relation to the matter.
I note that the Company/Union Agreement in relation ‘Procedure for dealing with absence from work’ states in relation to warnings in that respect that: “The above will be on a yearly rolling basis, i.e. each individual warning will lapse after 1 year” It further states in the section on Unauthorised Absence at the end of that section in respect of discipline that: “The above is the general rule, which will be applied. The above does not preclude the Company from the taking into account of special circumstances and the previous disciplinary record of the employee concerned.” Plainly the second part of this specifically allows for discretion to be exercised in the issuing of disciplinary sanctions where appropriate.
In the case of the first on the two unauthorised absences involved, the Complainant was absent for one day, 2nd January 2015. The second absence was for two days, 5th and 6th January 2016 and I note that this is more than one year after the first unauthorised absence that led to the first written warning in this respect. While I accept that warnings only take effect from the date of their issue and to do otherwise would be to prejudge the outcome before the disciplinary process was completed,, I believe that the fact that there was more than one year between the two incidents should have been taken into account in deciding the appropriate discipline and I note that it was not. In addition I note that the Complainant was not deliberately flouting the rules and the procedures; he could very easily have avoided exposure to the discipline imposed by remaining off work for a further 4 working days to be outside the time limits for the existing written warning to be still live, this is also a factor that should have been taken into account in deciding whether or not to exercise discretion in relation to the level of the warning to be imposed in the instant case. In addition other than these two warnings, one year apart, it is not in dispute that the Complainant had an otherwise clear disciplinary record, this fact was apparently not taken in account. These factors combined provide justification for the view that a lesser penalty, such as a (first) written warning would be a more appropriate disciplinary sanction in all the circumstances.
While I note that there can be differences in the timing of investigations and disciplinary procedures for valid reasons, such as the availability of parties, holidays or weekends, I do not consider it fair that the Complainant should suffer a greater penalty due to the fact that the second set of procedures were dealt with much quicker than the first one. That is to substitute luck for fairness and is not fair to the Complainant.
For all of the foregoing reasons I have concluded that there is merit in the claim and it is upheld.
I recommend that the Final Written Warning be removed and expunged from the Complainant’s record and that it should be replaced by a (first) Written Warning.
I so recommend.
Dated: 13th July 2016