ADJUDICATION OFFICER RECOMMENDATION.
Adjudication Reference: ADJ-00024853
Anthony McIntyre Independent Workers' Union
Respondent HR Managers
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 07/01/2020
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The complainant has been with her employer since 1981.
She is requesting the WRC to reverse a decision of the employer to place her on a final warning and to place her on a lower status warning concerning medically certified absences from work.
The worker submitted her complaint on the 18 October 2019.
Summary of Complainant’s Case:
The worker attended a meeting with the management on 17 April 2019 at which her medically certified absences were considered. Her absences were considered in the context of the employer’s Attendance Support and Management Process (ASMP). At that point in she was on a status two warning. On 3 May 2019 the respondent HR manager told the worker that her he was escalating her from Status 2 to Status 1 warning. In the same letter of the 3 May, the HR manager advised that if her improved attendance was not maintained at the point of the next review meeting, proceedings for dismissal on the grounds of persistent unsatisfactory attendance would be commenced under the company’s agreed disciplinary procedures. There are 5 warnings in the ASMP process, in descending order, and status 1 is the most critical warning , the next step being the initiation of disciplinary proceedings culminating , potentially ,in dismissal if attendance fails to improve. She appealed against the decision to impose a status 1 warning, but her appeal was rejected.
The worker is seeking to reverse the employers’ decision to put her on a status 1 and return her, instead , to the status 2 warning which was where matters stood before the meeting of the 17 April.
The worker states she is being penalised for having initiated a grievance which was processed during the months of January – May and was not upheld. During that time her attendance improved.
She claims that it is contrary to the principles of natural justice to bypass the disciplinary process to put her on notice of dismissal by using the ASMP process.
She also argues that as no contrary medical opinion was put forward by the employer, her medical certs should be accepted, and she should not be penalised for absence owing to illness. She alleged that the HR manager erred in inferring from her unsuccessful grievance application, executed while she was on sick leave, that she was therefore fit for work. She argued that this finding was contradictory to the medical opinion of her own doctor. The reviewer, not a medical official, overruled a medical opinion for which he was not qualified.
This elevation to a status 1 warning amounted to a disciplinary action by stealth that has moved the worker to the precipice of her employment tenure.
The worker activated the Grievance Procedure against the company to revert to stage 2 and received no reply.
Summary of Respondent’s Case:
The worker is an operative working in a Delivery Services unit.
She believes herself to be a victim of bullying and unsolicited attention from managers of the Company. These matters have been dealt with.
The company have an agreed Attendance Support and Management Process (ASMP) in place for dealing with absences arising due to an underlying medical condition or for which no underlying medical condition exists. The worker’s absences which reached 250 days over a 3-year period exceeded the thresholds set out in company policies. The company had attempted to impose a status 1 warning in January 2019 but paused the process so as to deal with grievances lodged by the employee.
On 3/05/2019 the company decided that her case should be escalated from Status 2 to Status 1. The effect of this was explained in correspondence: “If a satisfactory level of attendance is not maintained in the next review period proceedings for dismissal on the grounds of persistent unsatisfactory attendance will be commenced under the disciplinary process”
An appeal against a decision arrived at through the application of the ASMP has to be channelled through the ASMP unless there is an abuse of the process.
Subsequent to the imposition of the status 1 warning in May 2019 the worker’s attendance has improved and she has been taken out of the ASMP, but in the event of a relapse in attendance patterns the procedure provides for a worker to be returned to the process at the exact stage at which they left which in the instant case is stage 1.
There is a monitoring process overseeing the employee management processes. The complainant is not a member of a participating union in the is process but the grievance process is there for all employees to challenge processes.
The employer asks that their decision be accepted.
Findings and Conclusions:
What remains at issue is not the live status 1 warning – as the worker has been removed from the ASMP process- but the dormant status 1 warning , ready to be activated in the event that the worker’s attendances slip below the agreed thresholds. The ASMP which was the springboard for the imposition of the impugned status 1 warning and which is the penultimate step in a process prior the initiation of the disciplinary process refers to support as well as monitoring and warnings.
I note that no underlying medical condition was put forward as a reason for the absences .No case was made to the effect that the absences were of an order which prevented the employer from imposing a status 1 warning.
The employer was unable to advise me if the worker had been directed to the Occupational Support section which offers employee assistance type services. Given that the worker is a long-standing employee and has made improvements, I recommend that the employer should take steps to prevent the worker being placed back into the ASMP through early intervention. I recommend the worker be provided with Occupational Support at monthly intervals during her working time. I recommend Management should also intervene to notify the worker at any sign of slippage in attendances, to explore how they may be addressed, and before a point at which it becomes necessary to reinstitute the ASMP process.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer should take steps to prevent the worker being placed back into the ASMP through early intervention. I recommend that the worker should be provided with Occupational Support at monthly intervals during her working time. I recommend Management should also intervene to notify the worker at any sign of slippage in attendances, to explore how they may be addressed, and before a point at which it becomes necessary to reinstitute the ASMP process.
Workplace Relations Commission Adjudication Officer: Maire Mulcahy