ADJUDICATION OFFICERECOMMENDATION
Adjudication Reference: ADJ-00006674
Parties:
| Complainant | Respondent |
Parties | A General Assistant | A Large Department Store |
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00009081-001 | 13/01/2017 |
Date of Adjudication Hearing: 02/05/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
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.
Background:
This claim concerns a request by the Union on behalf of the claimant to expunge a final written warning from the employment record. |
Summary of Claimant’s Case:
The Claimant is a General Assistant and South African national who has worked for the Employer since February 2007.She has sought that a Final Written Warning issued on October 18, 2016 regarding alleged breach of the Company’s Absence Policy be expunged. The Claimant was certified as medically unfit for work from 5 November, 2015 to 8 June 2016.During this time, she attended both her own GP and the Company Doctor. Following her return to work , the claimant was invited to attend an Investigation meeting on 22 June ,2016 regarding her absence ,which was followed up on July 15.There was a subsequent difficulty in scheduling of meetings and representation which resulted in the claimant being suspended, which was subsequently lifted on 11 August , 2016.An external Manager was appointed to investigate the issue and on August 26, 2016 the issue of alleged breach of the Absence Policy was recommended to progress to a Disciplinary Hearing . Some difficulties arose for the claimant in attending this meeting at the proposed times .There was a delay in receiving the invitation dated 2 September .The meeting was then scheduled during her agreed day off and with one day’s notice, finally, on September 15, she was invited to attend a Disciplinary hearing for the following day . She was unable to source representation at short notice and was subsequently certified unfit for work with anxiety and stress from 16 September 2016-27 October 2016. On 21 October, 2016, the claimant received confirmation that she had been issued with a final written warning on 18 October for a breach in the Absence Policy following a disciplinary hearing held in her absence. The Claimant appealed this sanction and attended a hearing on 21 November, 2016, the result of which was that the sanction was upheld on January 3, 2017. The Union on behalf of the claimant contended that the claimant had an entitlement to an oral hearing, which was denied to her in the October sanction. The Union and the company have an agreed Disciplinary procedure which outlines the right to representation at all stages .This was not honoured at the September meeting. The protocol around receiving a Final Written Warning indicated that it should be signed in the presence of a representative .The Union contended that this was not adhered to. The Union argued that the meeting which occurred on 16 September did not take account of the facts and the claimant was not afforded a right to be heard, or submit any mitigating circumstances prior to any sanction. The Union outlined the five principles of the Absence Policy and while submitting that the length of absence may have been in excess of the company’s expectations, the absence was genuine.
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Summary of Employer’s Case:
The Employer refuted that the Disciplinary process was unfair and considered that the sanction of final written warning to be fair and warranted in the circumstances following a thorough investigation . The Employer outlined that the Claimant had received consecutively higher level warnings due to her absences. She had received a second final written warning for absenteeism and adherence to the absence procedure which expired in June 2016.The Claimant had been on continuous sick leave from October 2015 – June 2016. During this time , in February , 2016 , she was invited to attend two absence welfare meetings by the company , where representation was permitted .She did not answer the first invitation and sent a sick note to cover her unavailability for the second meeting . The Company began to get uneasy as the complainant did not co-operate with the furnishing of medical certificates, neither was she prepared to meet with the company representatives regarding her sick leave. The Store Manager wrote to the claimant on 16 March 2016, following up a phone conversation of 10 March .The letter outlined that the claimant had not been in contact with the store during her sick leave and failed to attend any of the Welfare Meetings arranged . An invitation to a meeting at the store was proposed for Monday 29 March ,to ascertain the claimant’s fitness for work .The meeting took place on March 29 .The Claimant communicated that she was not prepared to participate in the meeting without the presence of the shop steward .The meeting was rescheduled to April 1. The Claimant did not attend due to illness. The Claimant attended a Welfare Meeting on 14 April, but was unable to identify a return to work date. She was invited to attend the Company Doctor in May in a letter date April 21. On 22 April , 2016, The Claimant informed the Store that she was now fit to return to work on 23 April .She returned to work and was invited to attend a review meeting on April 26 .The claimant recommenced sick leave 29 April -6 May . The Occupational Health Specialist concluded a report and was unable to identify a return to work date for the claimant. The Claimant returned to work in June 2016. When the claimant refused to proceed with a rescheduled investigation meeting on July 1, the meeting was rescheduled to 15 July by the company .Representation was permitted. The Deputy Store Manager reviewed 1 The Second Final Written Warning 2 The Claimants Attendance pattern over the previous year. With the claimant and her representative. The Employer raised a shortfall in medical certs submitted over the course of a 6 week period and sought a comment from the claimant on her alleged failure to attend so many absence related meetings . The matter was moved into the Disciplinary process .The claimant informed the company that she was unable to attend the first scheduled meeting on September, 7 due to illness. The hearing was rescheduled to September 13. On September 12, the claimant called the Store Manager to inform him that she was unable to attend the rescheduled meeting due to college attendance. The Store Manager wrote to the claimant on 13 September rescheduling the Disciplinary hearing for 16 September. “I will give you one further opportunity to attend the Disciplinary meeting ….on Friday, 16 September at 5pm….” “ Please be advised that if you fail to attend this meeting , the meeting will go ahead in your absence and any decision arising from this meeting will be sent to you by post “ The letter was recorded as delivered at 10.54 am on 15 September. The Claimant did not attend the meeting on 16 September and the hearing went ahead in her absence and the decision taken to issue a third final written warning .This was communicated by means of a letter dated 18 October, 2016 with a right of appeal. During the course of the hearing, the Employer confirmed that the claimant had visited the store on 16th September, 2016 to submit a medical certificate but had not made any reference to the proposed meeting later that day. The Appeal hearing took place on 21 November, 2016 .The decision on the third final written warning was upheld. The Employer contended that the disciplinary warning was proportionate, followed the company’s disciplinary procedure and satisfied the principles of natural justice as provided for by S.I.146/2000.The claimant was on notice that an immediate and sustained improvement in her absenteeism would be required and that adherence with the absence policy was required .She was also on notice that a failure to improve in this regard may result in further disciplinary action. The Employer stated that the company had been fair and reasonable in their dealings with the claimant. The matter of the claimant’s avoidance to engage on the ongoing topic of her high rate of absence was of grave concern to them and warranted proportionate disciplinary action. |
Findings and Conclusions:
I have given careful consideration to both parties extensive submissions in this claim .I have found that both parties continue to hold a high level of dissatisfaction on how their perspective positions were treated in this case. The claimant holds a strong view that she had a genuine illness and was unable to attend work and was thus unable to attend the meetings as proposed. The Employer holds an equally strong view that the company did all in its power to assist the claimant in improving her attendance at work only to be left virtually alone at the Investigation and Disciplinary process. This is a very difficult situation to assess as it is hoped that both parties can build on this erosion of trust in the course of time. I have considered the company Disciplinary Procedures in the case of second and final written warning. In the case of the second warning section,( 9 months) It reads : “…..This formal second written warning results from continued unsatisfactory performance/conduct, or a more serious offence. It indicates the company’s concern and that immediate and sustained improvement is required …..” In the case of the Final Written warning( 12 months) section, It reads : “….A final written warning indicates the company’s’ final official concern and that an immediate and sustained improvement is required in the staff member’s performance…….” There is a clear gradient in severity in the two sanctions. I have been asked to examine the latter sanction for the purposes of this case. The primary purpose of the invocation of any Disciplinary procedure should be to try and effect an improvement in an employee’s conduct /performance. In this case, attendance at work was the core issue. It is vital that the employer fully informs the employee of the standard of attendance required and that this has been carefully explained in terms of the improvements sought .I find that the Employer has honoured this requirement in the run up to the Disciplinary Meeting of September 16, 2016. This period was however marked by a period of suspension in the claimant’s case in response to a workplace crisis in July. This was lifted on August 11 and the matter of attendance was channelled into the Disciplinary Process. It would seem to me that it should have taken on a “Red letter “status for the claimant from that moment forward, but didn’t. I was struck by the submissions of the Employer when they presented the catalogue of meetings on offer to the claimant, in which to make progress on the issue of attendance. I understand that time tabling and representation are worthy considerations in any Staff / Management meeting ,however ,I found that the momentum for resolution seemed to have been stymied due to the claimants partial or non-attendance at these key early stage meetings . I accept that the Employer was dissatisfied that the Second written warning had not addressed the claimants required attendance pattern and had commissioned an Occupational Health Report which did not identify a back to work date for the claimant. However, in my opinion, it is the events following September 15 which have the most bearing on this case. The claimant had managed the scheduling. /cancellation of previous invitations to attend the proposed Disciplinary Meeting , yet on September 16 , she submitted a medical certificate at the store in person , but did not explain that this ruled her out of the Disciplinary Meeting later that evening .Consequently the Employer held the meeting at 5 pm alone . It is hardly ideal to hold a Disciplinary hearing alone. The need to balance the needs of the business as against the employees’ rights are important threads in this process. I was satisfied that the claimant was on notice that the hearing would go ahead in her absence if she chose not to attend. I noted that the Employer had not obtained a contemporaneous Medical Report to inform the Disciplinary process. I was not satisfied that the record of the meeting reflected a deliberative process on the core issue of the claimant’s attendance at work. There was an inordinate delay in issuing the findings of the Disciplinary hearing. I found that there ought to have been an opportunity to address the shortcomings in this process on Appeal. I sought a copy of the actual letter of appeal from the complainant and received it subsequent to the hearing. I reviewed the Appeal process and noted that it did not remark on any of the content of the Disciplinary meeting of 16 September 2016. The outcome also referred to an impartial investigation, yet details of same were not provided. I have found that there was wrong on both sides in this case. On the claimant’s side, I noted an avoidance to engage in a two way conversation with her Employer on her sick leave record. I was struck by her omission to link her sick note submission on 16 September to the pre-arranged Disciplinary meeting. On the Employer side, I noted that the Employer was concerned that there was a residual legacy from the second final written warning, which expired in June 2016 which had not managed to address the claimants sick leave record .I found that the Employer became frustrated in trying to pin the claimant down to attend a meeting in accordance with company policies. However, I found that the lack of records of the actual content of the Disciplinary Meeting coupled with a lack of Occupational Health Advice ,followed by the inordinate delay in furnishing the outcome were matters not remedied on appeal .I have found that these were significant flaws in the Disciplinary Procedure adopted in this case . I have , found that the Claimant did not assist the process . |
Recommendation:Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. The Claimant has sought that the record of final written warning be expunged from her file .I have given this claim careful consideration and have found that the claimant had a role in the protracted process outlined earlier and find that notwithstanding the identified flaws in the process, to expunge the record completely would not be fair or reasonable . Instead I recommend that the warning be reduced to 6 month duration i.e. 17 April, 2017 .I also recommend that in the event that the claimants sick leave record remains a matter of joint concern ,the parties should engage in a joint review to address both Occupational Health Recommendations and the Business needs in the spirit of moving forward .
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Dated: 28/08/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Appeal of Final Written Warning |