ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003821

Dispute for Resolution:

Date of Adjudication Hearing: 25/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.  

Background

This dispute arose from the operation of the respondent disciplinary process. The complainant had been subjected to a ‘severe warning’ which in this company is not the final warning.

He appealed to the WRC on the basis that the charges against him were made on a selective basis and that there had been unfairness in the conduct of the procedure.

Preliminary Issue

The respondent submitted a copy of the company Grievance and Disciplinary Policy and questioned whether the complaint was within jurisdiction for the following reason.

The Procedures states that;

‘It is the intention of both parties that the outcome of the disciplinary machinery shall be final’

And later;

‘In exceptional circumstances the trade union reserve [sic] the right to refer the outcome of the disciplinarymachinery to the Labour Court under section 20(i) of the Industrial Relations Act.

The respondent submits that no case has ever been referred to the then Rights Commissioner service and that an Adjudication Officer of the WRC recently declined to hear a case in the same circumstances.

The respondent indicated that it could not continue participation in a hearing of the substantive matter as to do so would out it in breach of the collective agreement with all its trade unions.

The union argued that it was not bound by this procedure in circumstances where the company Disciplinary Procedure had been breached by the respondent.

Decision on the Preliminary Matter

As a general principle of good industrial relations, considerable deference should be shown to internal processes subject to their being operated to a good standard and in a fair way.

In this case the complainant had issues about the selective nature of the charge made against him. He also raised certain fair procedure issues about the independence of the decision makers. However he also declined to avail of an offer to have an appeal heard by an independent decision maker.

The respondent felt it sufficient to submit the provisions of the collective agreement on Grievance and Discipline to essentially ‘estop’ any further examination of the matter.

That will not suffice. A complainant at a hearing of the WRC adjudication service is entitled to a proper hearing of all aspects of their complaint, including whether it is or should be ‘estopped’ and any grounds for doing so. The principles of a fair hearing apply to any preliminary stage of the hearing also, notably that both sides of that argument should be heard.

That said, I find that the complainant’s criticism of the independence of the decision maker are not well founded. All that is required is that the decision maker is not himself a party to the issue in dispute. Thus, when a manager gives an instruction which is not carried out, that manager does not become a party to the dispute in such a way as to exclude him from conducting disciplinary proceedings into any alleged refusal to carry it out.

To take such a view would paralyse most workplaces and it is not in accordance with the Superior Courts’ view of the requirements of ‘fair procedure’ placed on decision makers in the workplace. (In particular see dicta of Peart J in Kelleher v An Post, High court, [2013] IEHC 238, 2012 No. 9604P and earlier cases referred to there).

A little learning about fair procedure requirements can be a dangerous thing as it appears to have been in this case.

Therefore, I do not find that the decision making process was flawed to the extent that it can be set aside for the purposes of bringing it within jurisdiction. As to the selectivity of the charges against the complainant the respondent did advise informally that it saw a distinction between the various individuals involved and this is properly a matter for the respondent to decide this.

An employee charged with a breach of discipline can bring whatever argument he wishes to the hearing in his defence or in mitigation, and his being subjected to selective treatment may be one such argument.

Finally, as noted above, it appears as if the respondent made an offer to facilitate the complainant with an appeal and to consult on the decision maker. The complainant had insisted on calling as witnesses those who he says were also culpable of the same charges. This is not the purpose of witnesses whose function is to assist with the clarification of the facts where they are in dispute.

Finally, I wish to address the company procedure quoted above insofar as it had a bearing on this case. It requires urgent review to say the least of it.

There is a requirement for precision in such agreements that is lacking here. It is far from clear what the practical meaning of the phrase ‘It is the intention of both parties’ etc may be and what its implications are for an individual complainant submitting a complaint such as in this case. If the authors of the agreement meant that there should be no appeal they should have said so; their intentions may not be persuasive to a future complainant who is aggrieved by the outcome of the internal procedures.

This is especially the case when it is followed by the equally unclear ‘exceptional circumstances’ required to justify a reference to the Labour Court.

Taken together, they fail to provide the certainty required in such agreements.

And while a reference to the Labour Court under section 20 (1) may have made some sense in March 1994 when the agreement was concluded it makes none today, on either score (i.e. the Court and the legislation). The appropriate first, external stage is now the WRC Adjudication Service, especially given the substantial extension of the Court’s jurisdiction since the enactment of the Workplace Relations Act 2015.

In any event, a respondent has the right to object to a hearing under the Industrial Relations Act.

Therefore I make two findings on the matter.

Firstly, I do not find ‘exceptional circumstances’ such as would justify a referral outside the company, and especially as the respondent has now offered an independent appeal which I recommend should be accepted. The witnesses referred to by the complainant should be invited to make such written submissions as the complainant feels necessary, without the necessity for oral evidence.

Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above I do not uphold CA-00005594-001 and make the following Recommendation.

I recommend the ad hoc appeal offered by the respondent should be accepted subject to consultation with the complainant about who will conduct the appeal. I also recommend that any statements from co-workers allegedly involved in the same incident should be made in writing to the decision maker.

Secondly, I recommend to the parties an immediate review and re-writing of the sections of the respondent ‘Outcome of Disciplinary Machinery’ along the lines discussed above in order to remove the uncertainty in the current draft and bring it into line with current WRC processes.

Dated:   22 February 2017