ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00006687
A General Operative
A Retail Company
Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 26/04/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with 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.
This is an appeal of a Disciplinary Sanction imposed on 24 August, 2016.
Summary of Claimant’s Case:
The Union on behalf of the claimant sought to appeal a 12 month verbal warning and a removal from the company sick leave scheme imposed for his alleged level of absenteeism.
The Claimant commenced work as a General Operative in May 2003 and his duties included manual handling , picking , stacking , loading and unloading in the course of his work as a General Operative .
In 2010, the claimant suffered a very serious work related accident where he badly injured his back and hips .He had two hip surgeries and the problem caused him intermittent absence from work. The claimant was given a 12 month verbal warning and removed from the sick pay policy for 12 months in August; 2016.This was appealed internally and was not disturbed.
The Union argued that the sanction was too severe, as the pre disciplinary procedures of counselling prior to formal disciplinary action being taken had not been utilised .The Union submitted that the claimant had been denied notification of improvement needed in advance and had actually sustained an improvement in his attendance.
The Union submitted the sick leave record for the years 2014-2016
2014 54.5 Shifts lost
2015 13 shifts lost
2016 9 shifts lost
The Union contended that days of absence covered by Medical certificate should be removed from the calculations of the absenteeism as medical direction rendered the attendance at work as impossible.
The Union submitted that the claimant had formed the view that his employer was deliberately targeting him for termination of his employment due to his disability .The Union stated that the employer initiated the next step of the Disciplinary Procedure in February 2017 and the claimant now had a 12 month written warning on his record.
Summary of the Employers’ Case:
The Employer operates a large wholesale distribution and retail business, employing 1100 people. The Employers Representative ,IBEC ,described the company as highly Unionised .The claimant worked an average of 3.5 x 12 hour rosters over 24 hour periods on a Monday to Sunday basis .
The claimant has had a history of serious and persistent attendance problems with the company. In the previous three years, his absence level had been measured at 16% , four times higher than the overall Depot absence rate .The employer submitted that from the previous 10 years, the claimant had only 7 years where his attendance record scored less than 100 on the Bradford factor .The employer submitted details of both the company
In particular , attention was drawn to a clause from the Attendance Policy
“…….the Employer is committed towards treating all employees who are ill in an understanding, fair and reasonable manner. Even so, the Company cannot bear the burden of excessive absence. Accordingly, it should be noted that excessive absenteeism may lead to disciplinary action including debarment from the sick pay scheme.”
The Employer submitted an extensive background and detail on the context and background to the imposition of the verbal warning on 24, August, 2016.
1 The events subject of the verbal warning encompassed a two year period resulting from a serious and persistent attendance problem. The claimant had been counselled for absence on 26 January 2015, but refused to sign the record.
2 The claimant had previously been imposed with a disciplinary sanction in June 2014 for attendance difficulties, which was addressed at the LRC and varied to a Counselling approach, by agreement.
3 The claimant had an unsatisfactory 12 month rolling absence record which had been flagged by his Manager in April 2016, without improvement.
4 The claimant appealed the verbal warning and removal from the company sick pay scheme on 7 September, 2016 and the sanction was upheld on 21 September, 2016.The claimant recorded another four periods of absence and received a written warning on 8 February, 2017, which he had not appealed.
The employer contended that there was sufficient provision detailed within the company procedures to permit the imposition of the sanctions as applied in August 2016 .The Employer quoted case law in relation to Unfair Dismissal cases, where conduct and capability grounds for dismissal were found to be fair grounds for dismissal .The Employer impressed on the hearing that the company sought to maximise every opportunity for the claimant to register improvements on his sick leave record but took issue when the Union and the claimant both argued that the absences were justified through either accidents or illnesses .
The employer submitted that the claimants absences had a high negative impact on the running of the business .The claimant had also been certified as fully fit to return to work by a Medical Practitioner in the aftermath of each of the reported accidents at work .
The employer submitted that the company had acted in a fair and reasonable manner and in accordance with the Company /Union agreement whereby it was accepted that Individual cases of sick leave could be addressed. The company operated a very beneficial sick leave scheme The company was troubled by the frequency and nature of the absences and contended that Disciplinary action was justified .The company had paid the claimant €80,000 in sick pay during the course of his employment .
1 The claimants attendance pattern resulted in disciplinary procedures
2 Prior to taking the action, the company made a number of attempts to draw the claimants attention to his high level of absence
3 Fair Procedures were afforded
4 The Employer acted in accordance with the relevant procedures.
The matter of the February 2017 written warning was not before the hearing.
Findings and Conclusions:
I have given careful consideration to both parties’ submissions in this case. From the outset, I was struck by the benevolence of the company scheme pay scheme .The employer had a clear understanding that the Union had agreed , in the interest of preservation of the scheme, that Individual issues would be addressed on a case by case basis as they arose . This was not disputed. I am satisfied that this is such an Individual instance.
Both parties accept that the claimant had sustained an accident at work and residual issues had arisen intermittently .However, the employer made a very strong submission in support of the claimant’s problem attendance rate. I understand this genuine concern The claimant also made a very strong submission that he needed the sick leave scheme to cover the eventuality of falling ill. I understand this need also.
I cannot accept the Union contention that certified sick leave should be excluded from the records of sick leave. I have found that both parties are very troubled by the circumstances of this case.
I have reflected on the “ double edged sanction “ imposed in August 2016 .The claimant was placed on a verbal warning and cessation of sick pay for a 12 month period on 24 August ,2016.This case arises on appeal of that sanction alone . At the hearing, I probed as to why the employer believed that a double sanction was necessary in this regard? And I noted that the employer’s patience had clearly evaporated on this issue. However, I found the dual sanction to be harsh.
I listened carefully as I heard both parties make submissions on the number of accidents that the claimant had at work and found that these circumstances may benefit from a separate, dedicated Health and Safety/Occupational Health Physician Analysis.
I formed the view during the hearing that a root cause analysis/risk assessment on the complainants capacity for his present work might be of some benefit to the parties .I found some support from the parties for this proposed building block in the case.
I have also reflected on the employers stated difficulty in the claimant’s reliance on taking a full sick day to cover minor procedures and I find that this concern is reasonable.
I have found that the employer upheld the company procedures on the Management of Attendance and Disciplinary procedures; however, I have found that insufficient weighting was placed on the claimants pre-disposition to ill health arising from his earlier accidents and medical procedures. For that reason alone, I have found the sanction disproportionate .There is merit in the dispute before me.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I do not find merit in disturbing the almost spent verbal warning in this case, given that it has been overtaken and not appealed . However, I would recommend that the parties engage on the following potential for resolution of this dispute.
1 That the Employer commissions an immediate Health and Safety assessment of the claimant’s current role and recommendations to be implemented within a four to six week period.
2 That the claimant’s access to the company sick leave scheme be restored from 24 February, 2017. This is to be accompanied by mutual review by the parties at regular intervals over the next twelve months in accordance with the joint agreement.
Dated: 11th July 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Appeal of Disciplinary Sanction