SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
A WORKER (REPRESENTED BY MANDATE TRADE UNION)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Disciplinary Issues.
2. This case concerns a claim by the Claimant that he was disciplined for absence from work resulting from a medically certified illness.
On 8 November 2016 the Claimant referred the dispute to the Labour Court in accordance with section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the recommendation of the Court.
A Labour Court hearing took place on 10 January 2017. The Employer did not attend the hearing nor outline its position to the Court in correspondence.
3. 1. The Claimant’s absences from work were all related to a road traffic accident which occurred in 2013.
2. All of his absences were certified by his Doctor except for his absence on 30 July 2016 which was a one-day absence.
3. The decision to suspend the Claimant without pay for one week and to remove him from the sick pay scheme for two years was too severe and wrong. That decision should be rescinded based on the facts that at all times of absence, the Claimant had medical certificates covering same and, in line with the Company's absence policy, supplied such certificates to Management.
Background to the Dispute
The Worker has been employed by the Respondent since 2007. It appears that the Worker had no absence issues prior to late 2013 when he suffered severe injuries to his knee and foot as a result of having been involved in a road traffic accident (unrelated to the workplace). He had a series of certified absences throughout 2014, 2015 and 2016 which were all due to the injuries he suffered in the accident. A number of the absences were for the purpose of allowing him to undergo and recover from surgery on his injured foot and knee. The Worker attended back-to-work interviews following each period of absence.
On 30 July 2016, the Worker was absent for one day on uncertified sick leave which he submits was also due to the after-effects of his earlier road traffic accident. He informed the Court that he had followed the procedures set out in the Respondent’s Absence Policy and had telephoned the store in which he was employed to notify management in advance that he would not be attending work on that date due to illness.
The Worker was invited to a disciplinary meeting which took place on 16 August 2016 to address his attendance levels and his absence from work on 30 July 2016. The outcome letter issued by the Respondent following that meeting states: “You were spoken to on numerous occasions and you were informed at these meetings should you fail to make a sustained improvement further serious action may be taken up to and including, (sic) your dismissal. This improvement has not been forthcoming.” The Worker submits that he had received no such prior warnings in relation to his absence pattern nor had he been put on notice that he was at risk of disciplinary action prior to the meeting on 16 August 2016.
The sanctions imposed on him at the meeting were: (a) unpaid suspension for five working days: (b) his entitlement under the Respondent’s sick pay scheme was removed for a period of two years. A total of €464.96 was deducted from his wages in respect of the period of suspension.
The Worker submits that the Respondent’s Disciplinary Policy provides for the sanction of suspension only in circumstances where “there is insufficient improvement in work performance following the issue of a written warning”. The Worker told the Court that he had never received a written warning. He submits, therefore, that the Company breached its own policy by purporting to suspend him without pay. The Worker also submits that the sanction imposed on him was disproportionate and overly severe.
The Worker appealed against the outcome ofthe disciplinary process within the stated period for bring an appeal. He was unsuccessful and the manager who conducted the review upheld the sanction.
It appears to the Court that the Respondent failed to follow its own procedures having regard to the manner in which it conducted the disciplinary process that culminated in the sanctions outlined above being imposed on the Worker. Furthermore, the Court is not satisfied that the Worker’s uncertified absence of one day, in all the circumstances, warranted the severe sanctions that were imposed on him. The Court, therefore, recommends that the Respondent should rescind the sanction in full; reimburse the Worker for the loss of one week’s wages he incurred during the period of unpaid suspension; and restore him to the sick pay scheme with effect from the date of this Recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
17 January 2017______________________
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.