ADJ-00004351

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004351

Complaint Dispute for Resolution:  

Date of Adjudication Hearing: 28/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 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 Hearing:

Complainant’s Submission and Presentation:

The complainant was involved in an altercation involving a number of co-workers. In the course of it strong language was used and this became the subject of a complaint by one of them.

In due course the respondent initiated disciplinary proceedings following an investigation

The complainant makes a number of complaints. He says that there were flaws in the procedure in that the workplace policy under which the complaints were processed was not made clear.

But he says that the sanction was not only disproportionate to the offence but was very significantly different to his co-worker who was substantially accused of the same offence, The complainant was given a final written warning with a twelve month expiry, while his colleague was given an oral warning.

The duration of the warning was reduced to nine months on appeal and by the time of the hearing it had expired.

Respondent’s Submission and Presentation:

The respondent says that the procedures followed were fair at all stages and that no issue of a breach arises.

In relation to the substantive matter of the penalty it says that there was no equivalence in the misconduct of the second colleague. While both used strong language not acceptable in the workplace the complainant went a good deal further in making what were seen by the company and by the person making the original complaint as intimidating and threatening remarks.

To make it worse these related to bringing matters to the attention of management and it could not accept that the complainant had the right to threaten any co-worker in that regard.

The respondent says it acknowledges and took into account the complainant’s expression of regret and that it saw his behaviour as falling with the range of termination of his employment; a sanction it did not apply.

Conclusions and Findings

There is, on the face of it, a significant difference between the two sanctions in this case.

Even allowing for a workplace context in which certain permissions may be given to use strong language it is clear that there had been an unusually heated exchange. The respondent says that, in the case of the current complainant, it went beyond the stage of heated strong language, and that the most serious aspect of the matter was the attempted interference with the right of an employee to report issues to the management.

The respondent also stressed that it had responsibilities, notably under the Dignity at Work policy to ensure that standards of proper conduct were adhered to, independent of any tolerance employees may show to each other in the use of strong language.

I have to address two questions; one is whether, looked at objectively the sanction on the respondent was too severe. In answering that question some deference is required to the judgment of an employer as to what is reasonable in the context of its particular employment. On that basis I cannot see any evidence that the respondent acted unreasonably or improperly in applying it.

So what account needs to be taken of the lesser penalty imposed on the other employee. If the second employee had not been involved would it justify disturbing the decision?

The respondent made a very detailed assessment of the relative behaviour of the two employees and the environment in which they work. It found the lesser penalty justified on the facts. I can find no flaw in its processes in reaching this decision; there was no evidence of special treatment or procedural unfairness.

Any recommendation in the matter is somewhat academic as the sanction has expired.

Accordingly, I do not propose to disturb the decision of the respondent and I recommend that it stands as initially decided and now expired.

Decision:

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 complaint CA-00006273-001.

Dated:   14 February 2017