ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000928

Dispute for Resolution:  

Date of Adjudication Hearing: 1st April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th December 2015, the complainant referred a dispute pursuant to the Industrial Relations Acts to the Workplace Relations Commission. The dispute was scheduled for adjudication on the 1^st April 2016. The complainant attended in person and was accompanied by his brother. A member of the respondent’s human resources department attended for the respondent. The complainant is a faculty administrator and the respondent is a university.

In accordance with section 13 of the Industrial Relations Act, 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.

Attendance at the Hearing: 

Complainant’s Submission and Presentation:

The complainant started employment with the respondent on the 10^th November 2008. He commenced a career break on the 1^st August 2014 and this was due to end on the 1^st August 2016. He outlined that his role was that of faculty administrator in one of the respondent’s faculties. This role is a senior administrative role, where he worked closely with the head of faculty.

The complainant outlined that he had had a good working relationship with the previous head of faculty. This was not the case with the new head of faculty, and this culminated in disciplinary process commencing on the 26^th February 2014. The complainant also made bullying complaints against the head of faculty. The outcome of the disciplinary process was a written warning given to the complainant, which he appealed. The complainant’s bullying complaint was not upheld by the respondent. The complainant seeks as redress that the disciplinary and bullying processes be declared invalid for want of due process, that the written warning be expunged and that an agreed third party be appointed to investigate his bullying claim.

At the adjudication, the complainant opened his submissions and referred to the accompanying appendices. He questioned whether it had been appropriate for the respondent to avail of the disciplinary procedure for what was characterised as a performance issue. He outlined that PMDS had not been put in operation. There was a conflict of fact over whether performance management had taken place prior to invoking the disciplinary procedure. The complainant outlined that a series of meetings had occurred but they related to specific issues. He said that he needed the head of faculty to take certain steps to give political authority to his role, for example when organising events and securing speakers. The head of faculty had abdicated her responsibility and delegated this task to a named academic.

The complainant outlined that the investigatory process undertaken by his line manager had been unfair as she was both the complainant and the investigator. The line manager had introduced issues not signalled in advance and made findings on those issues. She recommended in her report of the 14^th May 2014 that this matter be referred to the disciplinary process. The complainant gave a detailed rebuttal to the findings of the investigation report. He stated that its findings were unfair and inaccurate.

In respect of the disciplinary process, the complainant said that it had then been inappropriate for the Academic Secretary to carry out this process as she was responsible for quality, and this was the issue which the complainant had sought to raise. It was submitted that she would have to find against herself if she upheld his complaint; this posed a conflict. The complainant said that the head of faculty testified at the meeting of the 25^th July 2014 and that he put forward his responses. The report issued by the Academic Secretary does not explain why a verbal warning would not have sufficed. It determines that a formal written warning should be issued.

On the 15^th August 2014, the complainant appealed against the issue of the formal written warning, stating that the disciplinary finding should be quashed. He referred to breaches of due process and natural justice, including prejudice and the respondent’s failure to abide by procedures. The appeal was heard by the College Secretary. The appeal hearing took place on the 11^th September 2014 and the report issued on the 2^nd December 2014. None of the points of appeal were upheld.

In respect of the bullying complaint, the complainant outlined that this related to how the head of faculty managed her office. His letter of the 28^th February 2014 raises ten issues. He outlines that he was excluded from the work of important committees where the head of faculty did not brief him on the decisions made. These failures were later used against him as poor performance in the disciplinary process. These issues caused him great personal stress and had an adverse impact on him in carrying out his role. The complainant outlined that he had provided accurate estimates of postgraduate students coming to the faculty and distinguished his estimates from the inflated estimates given in other departments. This was often done to attract funding. The head of faculty wished to increase the predicted number of students. People in the office had remarked on her rude tone, in particular in addressing the complainant. He commented that the investigator assigned to his bullying complaint never interviewed witnesses and that no member of HR had attended the meeting between the head of faculty and the investigator. The investigator to the bullying complaint issued a report on the 10^th February 2015 where he concluded that the allegations of bullying were not sustained.

In his rebuttal, the complainant outlined there was no informal performance management process. He outlined that his role had always differed from the job description. Diary management, for example, was done by a named colleague and the head of faculty had made this an issue. This was later the subject of adverse findings by the Academic Secretary, who did not investigate the actual nature of his role.

Respondent’s Submission and Presentation:

The respondent outlined that the head of faculty, the complainant’s line manager, was the appropriate investigator because the issue related to performance management. The involvement of the Academic Secretary in the disciplinary hearing was appropriate as this was designated in the structure of the faculty.

The respondent outlined that it was normal for a disciplinary process to take the informal route even after the investigation had started. The head of faculty had sought to deal with the matter informally. In this case the matter then proceeded through the formal process. The Academic Secretary had concluded that a formal written warning should be issued. It was natural that the sanction would continue on the complainant’s return from career break. The warning would expire after 12 months, although this is not expressly stated. Under the policy, a verbal warning expires after nine months.

The respondent commented that the disciplinary process had been devised with the agreement of the unions to include performance management issues. The first stage was the investigation and this was the first step in addressing any performance management issues, even though this is not strictly speaking an investigation. The respondent refers to reasoning provided by the Academic Secretary in the report of the 13^th August 2014 to justify the issue of a formal written warning. The respondent stands over the appeal process as well as the investigation carried out under the Dignity & Respect Policy.

Findings and reasoning:

The complainant occupies a senior role in the administration of a faculty within the respondent and holds the post of faculty administrator. The respondent is a third level institution. This dispute arises from the relationship between the complainant and the head of faculty, referred to in this report as the line manager. The complainant was issued with a formal written warning on the 13^th August 2014. Separate to these events, the complainant availed of a career break and the respondent states that the written warning will rest on his file until the expiry of a full 12-month period, i.e. is reactivated on his return.

The complainant seeks redress pursuant to the Industrial Relations Acts, including that the written warning be quashed and that an agreed independent investigator be appointed to hear his complaint under the respondent’s Dignity & Respect Policy. The respondent denies the claim and states that it followed the relevant disciplinary and Dignity & Respect policies.

The respondent’s disciplinary policy provides that employees may avail of the redress provisions made available under the Industrial Relations Acts. There is no reference to such referrals in the Dignity & Respect Policy, but no issue is raised by the respondent regarding addressing this element of the claim.

It is apparent from the documentation that these complaints were ventilated in High Court proceedings and also before a supervisory function attached to the respondent. I view these processes as outside the scope of this adjudication and I have not considered the documentation and findings arising from these two sets of proceedings.

In reaching the recommendation provided below, I have taken account of the written and oral submissions of the parties. The complainant was in attendance as was the Staff Relations Manager of the respondent. The head of faculty, the Academic Secretary and the College Secretary did not attend the adjudication to give evidence of what occurred in the disciplinary process. The investigator charged with Dignity & Respect investigation also did not attend.

This is a case where the respondent has carried out both investigation and disciplinary processes. The respondent stands over these processes and their findings. The complainant states that they were not carried out in line with relevant policies and that the actions of the respondent were unfair and wrong. I do not believe that it is the role of this adjudication to replicate any of the processes already completed. I do not believe that I could, or should, make findings on the substance of the dispute. My role is restricted to assessing the application of the relevant respondent policies and whether the respondent had sufficient basis in evidence to reach its findings. I have not commented on every aspect raised in the submissions as to do so goes beyond what is necessary to reach the recommendations outlined below.

In respect of the first element of the complainant’s claim, it is perhaps best to start at the respondent decision to impose the sanction of a formal written warning. In the findings of the 13^th August 2014 the Academic Secretary states “I consider [the complainant’s] non-acceptance of his administrative responsibilities as faculty administrator and consequently an absence of senior administrative support for the [line manager] to be a serious matter and, therefore, I determine that the issue of a formal written warning under the College’s Disciplinary Procedures is appropriate.” According to the respondent disciplinary policy, it provides that a “Stage 1 – Verbal warning” is the normal sanction for performance issues. The policy states “If conduct or performance does not meet acceptable standards, the staff member will normally be given a formal verbal warning. He/She will be advised of the reason of the warning and that it is the first stage of the disciplinary procedure. The warning will be confirmed in writing to the employee and recorded in the employee’s file as a verbal warning.” Stage 2 provides for written warnings. It states “If the offence is a serious one, and if a further offence occurs or if the required improvement does not take place a written warning will be issued. He/She will be warned that action under Stage 3 will be considered if there is no satisfactory improvement.” Part 2 of the policy includes in its list of offences the example of “sub-standard work performance”.

I acknowledge that the Academic Secretary assesses the performance issues as “serious” and that the complainant was a senior member of staff. It is not, however, clear what consideration was given to the alternative, lesser sanction of a verbal warning. This is, after all, what the policy states should be the normal sanction in a performance case. While the complainant is a senior member of staff, this does not take the findings made against him outside of the range of “normal” sanction. Having regard to the respondent’s policy, it follows that the sanction of a formal written warning should not stand. No consideration is given, nor any conclusion reached, as to why a Stage 2 sanction was not appropriate in this case.

This case relates to the performance of an employee in carrying out their duties. The complainant is a senior member of the administrative team and his line manager raises issue with how he carries out this role and the level of support given to her. The complainant does not accept that he has a case to answer. It is, of course, essential that a line manager be able to address performance issues arising with the employees who report to them. This is a core element of line management and important for all employees and an organisation as a whole. I do not believe that PMDS is an appropriate way for a line manager to deal with such issues, as PMDS is a general performance evaluation/career development initiative applicable to all employees.

As we have seen, the respondent deals with performance as an “offence” under the disciplinary policy and this is listed alongside conduct/misconduct issues. There is no provision for Performance Improvement Plans to address deficiencies in performance outside of the disciplinary policy. This is of significance in the circumstances of this case. The complainant’s line manager was dissatisfied with the performance of one of her reports and in line with the disciplinary policy, she met with the complainant and later drafted a detailed investigation report. The report of the 26^th May 2014 goes through various issues in detail, stating the line manager’s concerns and the response given by the complainant. Despite the thoroughness of the report, it remains a report where the complainant and investigator are the same person. The disciplinary procedure provides that at the disciplinary hearing “the outcome of the investigation will be presented by the investigator to the Chair of the Disciplinary hearing in front of the staff member against whom the complaint is made, and their staff representative.” The line manager and complainant attended the disciplinary hearing and presented their cases to the hearing. The disciplinary findings were issued on the 13^th August 2014. My concern regarding the investigator/line manager being one of the same is exemplified in the opening sentence of the disciplinary findings where the report states “[The line manager’s] Investigation Report demonstrates her concerns at not being administratively supported in a professional and competent way.” This encapsulates the difficulty posed by an investigator self-corroborating their own complaint in performing both the roles of investigator and the line manager raising a performance issue. For the sake of clarity, I am not making any criticism of the actions of the line manager in this case as I have not heard from her. It, however, follows from the above reasoning that I recommend that the findings of the disciplinary hearing be set aside.

The last issue to address is the respondent’s treatment of the bullying complaint against the line manager. I was provided with the respondent’s Dignity & Respect Policy as well as the correspondence and documentation produced in the course of the investigation. The complainant states that he did not have the opportunity to comment on the line manager’s response to his complaint and that there were procedural failures, including the failure to call witnesses and no written record was kept of a meeting between the investigator and the line manager of the 10^th September 2014. The complainant made an originating complaint to which the line manager issued a response. In turn, the complainant submitted his reply. The matter was assigned to an investigator, who was provided with terms of reference to investigate the claim and I find that he did so in accordance with the Dignity & Respect Policy. The investigator provides a comprehensive assessment of the evidence presented to him and gives reasoning as to why he did not interview “third parties”, i.e. the potential witnesses identified by the complainant. He states that the written record was an aide memoire for the investigation, but I note that he did provide a written record of his two interviews with the line manager in his draft report. Following the issue of this draft report, the complainant provided a response, to which the investigator made comments, including one retraction. The investigator’s report issued on the 10^th February 2015. From my reading of the documentation, the investigator complied with the requirements of the Dignity & Respect Policy and with fair procedures in carrying out the investigation. No objection was made to his appointment and the investigation is thorough and reasoned. The Dignity & Respect Policy provides that an investigator may call witnesses if they deem it appropriate (page 26) and the investigator gave his reasons why he spoke only to the complainant and the line manager. He also provides a record of his two meetings with the witnesses interviewed. I conclude that there is no basis to recommend the appointment of another investigator to address the complaint pursuant to the Dignity & Respect Policy. I base this conclusion on the independent and complete nature of the investigation concluded on the 10^th February 2015.

Recommendations:

Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the dispute in accordance with the relevant redress.

I recommend that the formal written warning issued by the respondent to the complainant on the 13^th August 2014 be set aside and removed from the complainant’s file.

I do not recommend that the complainant’s complaint pursuant to the Dignity & Respect Policy be re-opened as the investigation concluded by the respondent on the 10^th February 2015 is complete and carried out in accordance with the Policy and fair procedures.

Dated:   01 February 2017