ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000430

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00000404-001	23/10/2015

Date of Adjudication Hearing: 03/03/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

On 20 Nov 2014, I settled an industrial relations claim with my employer relating to on-call payments. On 22 Dec, I was advised of allegations that I had not attended four incidents for which I claimed on-call payments & travel expenses and was suspended. The investigator concluded on 1 April 2015 that there was a 'distinct lack of evidence to factually underpin the allegations'. Despite this, a disciplinary hearing was convened (May) & I was issued with a final written warning and suspension from the on-call roster on the basis of wildly different allegations unconnected to the allegations. An appeal was heard on 25 June and dismissed on 27 August.

The complainant submits that despite being cleared and exonerated following investigation of detailed and specific allegations of “gross misconduct” he was issued with a final written warning and suspended from the on-call rota for a period of three months on the basis of allegations which were not put to him or indeed investigated as part of the process. In other words this was a fundamentally flawed process in breach of natural justice, the LRC Code of Practice on Grievance and Disciplinary Procedures and the respondent’s own Grievance and Disciplinary Procedure.

The complainant seeks a decision that the sanction be vacated and removed from the record and that it be formally acknowledged by the respondent. Furthermore that he receive compensation for loss of on-call overtime payments in respect of both his period of administrative suspension and the three month disciplinary suspension.

Respondent’s Submission and Presentation:

The respondent submits that whereas the complainant was the subject of an investigation into alleged gross misconduct “did not constitute gross misconduct” in respect of two of the allegations and that the third allegation “was not upheld by the Council. However the Complainant’s actions with respect to matters that emerged as part of the investigation process were found to constitute misconduct. This position was outlined to the complainant on the 11^th of May at the disciplinary hearing and a sanction of final written warning and suspension from the on-call rota for a period of three months was imposed and advised in a letter of the same date. It is submitted that the evidence presented to the investigation by the complainant clearly indicated that he failed to discharge his duties as general services supervisor is justification for the disciplinary action taken.

Decision:

In coming to a decision in this matter I wish to compliment the work of the investigator for a thorough, comprehensive and balanced report. I agree with the complainant that the report should have ended the matter. The lines had been clearly drawn, the issues (which were of high import) clearly identified, notified to the complainant on the 22^nd of December 2014 and could if proven have led to his dismissal. The report could not have been clearer and therefore the only reasonable conclusion to be drawn was that the allegation were not proven and therefore not well founded (the complainant had an absolute right to his unblemished disciplinary record). If there were residual matters arising from the evidence adduced under investigation then they should have been considered separately (it seems to me that the respondent was singularly myopic in this regard) and approached with extreme caution having particular regard to the right’s of all of the claimant.

In the event, the respondent disregarded the right’s of the claimant and therefore I have no hesitation whatsoever in declaring that this complaint is well founded.

In considering the appropriate remedy I am mindful of the fact that the complainant was removed from his position (albeit with pay) for a considerable period of time, that the respondent waited until 22^nd of December 2014 to level the allegations despite the exhortation of a senior engineer that this should have been done at the beginning of December.

Accordingly the appropriate remedy is that the sanction imposed should be vacated and that the respondent should pay the complainant €4,000 (say four thousand euro) in compensation.

Dated: 21^st June 2016