ADJ-00006120

Complainant

Respondent

Parties

A Technician

A Manufacturing Company

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-00008439-001

28/11/2016

The complainant had referred a dispute in relation to the company Pension Scheme to the WRC and an Adjudication Hearing under the Industrial Relations Act, 1969, took place on 29 June 2016. During the hearing evidence was given in relation to an error regarding the pension entitlement of another employee which resulted in an overpayment to that employee. The company had subsequently corrected that error.

The present dispute arises from meetings and conversations between the parties subsequent to the Hearing which resulted in disciplinary action being taken by the company and the issuing of a written warning.

The complainant contacted the retired employee following the hearing and heard that the employee’s pension had been reduced after one year of payment. As a result of that conversation it was agreed between them that the complainant would withdraw his case if the former employee’s pension was restored.

The complainant met with the HR Manager the next day and put this proposition to her. The Manager rejected the proposal. The complainant expressed his annoyance in this regard.

The complainant was summoned to a further meeting the following day at which the HR Manager was accompanied by the complainant’s line manager. The HR Manager requested that the complainant repeat what he had said the previous day and the complainant did so. Following further discussion the HR Manager accused the complainant of attempting to bribe her to which the complainant responded that she had just slandered him. The meeting ended shortly afterwards.

Two disciplinary meetings took place in the following weeks in relation to the charge of bribery and on 13 July 2016 the complainant was issued with a written warning in this regard. The complainant appealed this decision utilising the internal appeal procedure.   This appeal process was conducted by the General Manager and took the form of submissions from the parties concerned.

The outcome of the appeal was advised to the complainant at a meeting with the General Manager who informed the complainant that the offence of bribery had been changed to that of making an unacceptable offer but that the warning remained in force.

The complainant requested copies of the submissions from the Managers and only received them after invoking the data protection legislation. The complainant is of the opinion that these statements were co-ordinated and also contained false and exaggerated remarks.

The complainant had brought a case to the WRC claiming a higher level of benefit from the company pension scheme.

As part of his submission the complainant had cited the case of a colleague who had retired.   This person had received an overpayment of pension which was subsequently corrected.

The day following the WRC hearing the complainant met with the HR Manager and offered to drop his case provided the colleague’s pension was restored.

The HR Manager stated that such a trade could not be considered.

Some days later there was an exploratory meeting at which the HR Manager was accompanied by the Operations Manager. The complainant elected to represent himself. The complainant repeated his offer to the HR Manager. Both managers perceived this to be an attempt to influence the HR Manager by offering a bribe.

There followed a disciplinary process which extended over two days and at which the company were represented by the HR Manager and the Operations Manager and the complainant had representation.

The outcome was that a written warning was issued for “an attempt to influence the HR Manager by offering a bribe.”

The complainant appealed this decision and the appeal was heard by the General Manager who decided that the reason for the disciplinary action should be changed to “attempting to influence the HR Manager to accept an unacceptable deal.” The sanction of a written warning remained.

The company expressed the hope that the amendment would bring closure to the matter but the complainant stated that he would accept nothing short of a full apology.

There is no issue as to the background of this dispute. The original claim by the complainant has been dealt with by way of Adjudication Hearing / Labour Court Appeal.

It is clear that the complainant felt in some way responsible for the highlighting of the error in relation to his colleague’s pension. In the aftermath of the original Adjudication Hearing he spoke with his colleague and from that came the idea of the complainant agreeing to drop his claim in return for the company agreeing to restore the colleague’s pension to its original level.

It must be said that this was a naïve approach as the rules of a pension scheme govern what each member of the scheme is entitled to and the trustees of a scheme have a duty to ensure compliance with those rules. I accept, however, that the complainant genuinely believed that he might be able to bargain with the company on this point. In turn, the HR Manager was quite correct when she stated that she could not engage in a trade like that on behalf of the company and refused the offer. I accept that the complainant’s attitude at that meeting was emotional and angry.

In their submission the respondent states that an exploratory meeting took place on 5 July 2016 at which the complainant chose to represent himself. The complainant however said that he was summoned to a meeting with the HR Manager on 1 July 2016 and found the Operations Manager present also. The documentation supplied to the hearing contain minutes of what is termed an Exploratory Investigation dated 1 July 2016 which bears out the complainant’s contention that he was summoned without notice to this meeting and at one stage asked for someone to be with him. It was at this meeting that the HR Manager accused the complainant of attempting to bribe her. I have to find that the use of the use of the word bribe in this context was ill-advised. In addition, any employee facing a investigation which could lead to disciplinary action is entitled to adequate notice of such an investigation together with details of the alleged misconduct and the opportunity to avail of representation.

There then followed a disciplinary process conducted by the HR Manager and Operations Manager which took place over two days. The complainant rejected the charge of bribery and likened his approach to union / company negotiations. The management side sought mitigating circumstances from the complainant. On 13 July 2016 the complainant was issued with a written warning signed by both managers. There are serious procedural flaws in this process. It is one of the principles of natural justice that a person cannot be a judge in their own cause.   In this instance the HR Manager was the instigator of the complaint, specifically arranged a meeting in order that the Production Manager could be a witness to the matter giving rise to the complaint and then both managers conducted the disciplinary process and decided on the sanction to be applied. I note also that there was no mention as to how long the warning would stay on file.   Ideally the investigation process should also be separate from the disciplinary process and conducted by different personnel.

The internal appeal procedure was invoked by the complainant and was conducted by the General Manager. This procedure was termed as an independent internal appeal and the complainant took issue with this description. As long as such an appeal is conducted by a senior manager with no previous involvement in the matter, as in this case, then no issue arises. What is of concern is the manner in which the procedure was carried out. The complainant stated that he and the two managers were invited to supply statements but that he did not have sight of the other parties’ statements until the process concluded. If statements are to be the sole input from the parties concerned then they should be exchanged and the commented upon if required. Secondly the General Manager amended the charge of misconduct to “an attempt to influence the HR Manager to accept an unacceptable deal.” While this may have been a genuine attempt by the author to address the issue before him I doubt strongly if it could be classed anywhere as misconduct.   It is notable that the General Manager rejected the use of the term “bribery”. Also worthy of comment is the fact that it was accepted by management that no malice was intended by the complainant and that the complainant had apologised to the HR Manager, presumably in relation to his initial attitude. Finally I see that reference is made to a meeting between the complainant and the HR Manager on 5 July 2016 but no minutes were produced in respect of same and I am therefore unclear of its status.

I find that the procedures utilised by the respondent were flawed and for that reason alone I recommend that the warning / caution should be removed from the complainant’s file and deemed never to have been issued. I further recommend that the respondent reviews their Disciplinary and Grievance Procedures to ensure compliance with the principles set out in the Code of Practice dealing with such matters (S.I. No. 146 of 2000).

I do not doubt the bona fides of both parties in this dispute but if both sides adopt entrenched positions then what commences as a relatively small solvable issue grows legs and becomes far more serious. I would recommend that both parties review the obvious requirement to ensure a professional working relationship is maintained in the workplace.