Case Number: ADJ-00000027. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000027
Date20 April 2016
PartiesA Warehouse Operative -v- A Company

Adjudication Decision Reference: ADJ-00000027

Complaint(s)/Dispute(s) for Resolution:


Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977



Date of Adjudication Hearing: 12/02/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly


In accordance with Section 80 of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Respondent’s Submission and Presentations.

The complainant commenced employment with the company in the Distribution Centre on 23May 2005 and was employed as a Warehouse Operative. He was dismissed from employment on the 6 August 2015 following a thorough and detailed investigation and disciplinary process for Gross Misconduct as a result of “ Manipulation of Company Policy and Misuse of Company Sick Pay”.

The complainant claims that he was unfairly dismissed by the Company. The Company rejects this claim.

The complainant dismissal was fair and reasonable in the circumstances. The Company refutes the claim brought by the complainant and denies that he has any claim or entitlement under the Unfair Dismissals Act 1977 – 2007.

The Respondent Group comprises a number of separate business units in growing, purchasing, sales and distribution of fresh food and flowers in Ireland and Europe. The respondents Logistics Solutions a subsidiary of the Group and provides a Logistics Service to a large supermarket retailer in Ireland, delivering chilled, frozen and ambient products to all 149 stores in the Republic of Ireland. The Distribution Centre itself is located in Ballymun and has a constant movement of goods in and out, 7 days per week.

The company has an Attendance Control Programme in place to manage absence. The Absence Control Programme is a collectively agreed policy that has been in place since 2007. The key agreed objective of the policy is to maintain absence levels below 3%. Absence levels in the warehouse currently run at between 5 and 8%.

Notwithstanding that an employee may be within the ACP or not the company provides for sick payment of up to six weeks pay.

The structure of the ACP programme is that a person with persistent absence can progress through four Phases of prescriptive warning. The protocols are that a Final Written Warning may be issued in relation to persistent absenteeism only at Phase 4. When Phase 5 is reached a person is at that point being considered for a capability dismissal. Were a person to complete all phases and lead to a capability dismissal the entire process would last 24 months. The ACP is a lengthy and inflexible process.

A further contingent issue in this claim is that absences on foot of reported accidents at work do not count adversely in reckoning under ACP. So far as this claim is concerned, the company operates a compassionate leave policy which is separate from any of the above.

This package of measures is to support employees with genuine reasons for absence. However the complainant manipulated his pattern of paid absence in such a way as to extract maximum benefit (for him) within the limits of the ACP and other policy supports. An ACP is not to facilitate paid absence benefit, but to regulate the management of absence (in this instance on a collectively agreed basis) such that each individual is treated equally. In this claim the complainant was not dismissed for reason of capability, but that by his behaviour he had abused the ACP process to attempt to unreasonably maximize and extract benefit.

The company sought a review of the ACP with the union in December 2013-- which was provided for in LCR 20320. The review failed as no agreement could be reached to make the process more effective and credible. In the light of the continuing absence levels the company commenced the process of placing more focus on direct ways to manage the unacceptable absence levels on the site.

On the 20 April 2015 following a company review of absence levels in the Distribution Centre the complainant was invited to a formal meeting to discuss the details of his absence patterns on the following terms , Manipulation of Company Policy and Misuse of Company Sick Pay.

On receipt of this letter on the 21 April the complainant wrote a grievance to HR to state that he was being discriminated against by them. HR responded to this letter on the 23 April 2015 as they believed it was not related to the matter at hand but was instead in relation to one of the complainant’s previous grievances some six months earlier.

On the 22 April 2015, the day prior to the planned investigation meeting, the complainant left work without permission. He told the Warehouse Team Manager that he was stressed. The Shift Operations manager asked him to come to his office to discuss the matter and he refused.

In line with the company absence control policy on the 23 April 2015 the company received a medical certificate to state that the complainant would be absent with work related stress. Subsequent medical certificates following this initial one outlined Stress related illness.

On the 28 April 2015 the complainant was referred to the company occupational health specialist. He met with a Doctor on the 11 May 2015

That doctor stated that:

that Mr ………… was fit to attend workplace meetings and was advised to return to work by the doctor in order to resolve his alleged workplace issues.

In line with the usual practice, the complainant was invited to meet with HR Manager on the 21 May 2015, to discuss the doctor’s report. Following a detailed discussion with the complainant where he made allegations of discrimination and expressed serious dissatisfaction with the company, he stated that the company doctor was biased and that he was being ignored when he raised grievances. The HR followed up the discussion in writing, to address the issues that he raised and to tell him that she would send him to another doctor for a further view on the matter.

On the 28 May 2015 the complainant was sent to another occupational health specialist for a further opinion. This doctor advised that the complainant should engage with the company to resolve the issues that he believed were outstanding.

On the 4 of June, the HR Officer, wrote a detailed letter to the complainant to outline and enclose the second medical report and to invite him to a rescheduled investigation meeting. That investigation meeting was to be held on the 11 of June 2015.

The complainant had clear patterns of manipulation of the company ACP. Since 2007, it is well documented that the complainant has had significant problems with attending work with periods of extensive absences. He has regularly been admitted to the ACP

However the key issue is that when the warning phase expired, he regularly recommenced absence within a short period, as short as two days . This had the temporary effect of restraining his occasions of absence during that phase of warning. In the period following the initiation of each of a monitored ACP phase the complainant record of absence was transformed –and when the phase was over it reverted to its prior pattern. This is not coincidental it is alleged :--

  1. Entered Phase 1 (P1) on 02.06.2010

Entered P2 on 18.08.2010. Was absent in his monitoring period but did not hit the triggers.

  1. Entered P1 on 19.04.2011.

Entered P2 on 10.08.2011.

Phase 3 meeting held on 29.02.2012 but was not progressed to Phase 3.

  1. Entered P1 on 13.04.2012.

Entered P2 on 27.05.2012.

Phase 3 meeting held on 19.10.2012 but was not progressed to Phase 3.

  1. Phase 1 meeting held on 03.03.2013 but was not progressed to Phase 1.
  2. ...

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