ADJ-00007502

Complainant

Respondent

Anonymised Parties

Front Office Manager

A Leisure Centre

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010178-001

12/03/2017

This is an appeal of a Verbal Warning of 6 months duration issued by the Employer to the claimant on 20 February, 2017.

The Claimant commenced work on a part time basis in October 2014. She commenced her present job as Front Office Manager on 1 May 2016.The claimant appealed the verbal warning placed on her file on February 20 ,2017 due to expire on August 21,2017.The claimant has been on sick leave since reception of the sanction . The claimant also expressed a reservation that ambiguities in her role were also subject to review and this also concerned her.

The claimant told the hearing that she worked as a receptionist at a Leisure Centre .In January, 2017, she was approached by a member of staff, Mr A and requested to attend a meeting with the Chairman of the Board of Management, Mr Z. On January 27, 2017They were both requested to table a list of issues that needed attention at the meeting with the Chairman. The Claimant described her role as a mere scribe and believed that she was acting in her capacity as Staff Supervisor. She explained her discussions to the three Instructors with alleged grievances. Mr A compiled the list and the claimant embellished it .She handed the completed list to the Chairman and played no further part in proceedings. The list referred to issues the staff had with the newly appointed Manager, Ms B.

The Instructors and Mr A met with the Chairman for a 10 minute meeting on 1 st February, They decided to deal directly with the Manager in the first instance .The claimant learned that Mr A had lost his job by Monday, February 6, 2016 and she found herself invited to at first a titled Disciplinary meeting, latterly renamed an Investigation meeting with the Manager, Ms B and the Chairman at 2pm on 6 February.

“The purpose of the meeting is to investigate your recent conduct in the preparation of a certain document pertaining to the management of the Leisure Centre given to the Chairman. The meeting will also investigate the manner in which this document was prepared and how the views of other staff were purportedly represented in this document “

The claimant tried to explain what had happened and that the first contact to the Chairman was not initiated by her and that she was merely the conduit for the issues raised by the Fitness Instructors .The claimant was accompanied at the meeting by her Mother in law .The claimant contended that she had not been heard at the meeting as she believed that she was reprimanded by Ms B for contacting the Chairman in the first instance. She was dissatisfied with the meeting, where she submitted that she was not heard and she was called a liar.

She was informed that she would have to await a Board level deliberative process on this issue. She described having a difficult time at work in the aftermath of this meeting, where colleagues were cool with her and Ms B sought training for herself in the tasks that she alone had previously completed.

On February 20^th, the claimant attended a meeting with Ms B where she learned that she was to receive a verbal warning of 6 months duration and a period of probation .She was also requested to undertake a one to one meeting with Ms B to clarify her role .She had not been given an opportunity to address the Board .The claimant sought to rely on a clause in her contract of employment to justify her interaction with the Chairman.

The outcome of the Investigation Meeting found that a verbal warning was issued in response to :

1. Involving the Chairman unnecessarily when inferring that three instructors were close to resigning, which was not the case?

2 Drafting with Mr A, a list of issues, whereas the Chairman had made it clear that the Instructors should own their own issues in written form.

3 The issues should have been directed at the Manager.

4 Performance monitoring and identified improvement required over a period of 6 months ,which may be subject to the next stage of the disciplinary procedure

The letter was endorsed by the Board.

The claimant sought to rely on a clause in her contract of employment to justify her interaction with the chairman

If you have any grievance, which you consider genuine in respect of any aspect of your employment, you have the right to a hearing by the Board of the Company “.

The claimant is currently out of work on work related stress and described persistent isolation from the employer. She had attended an Occupational Health Physician. She wished to return to work but sought an apology from the employer in addition to the appeal of the sanction.

The Employer outlined that the claimant had worked well at the centre and there were no issues with her performance prior to the events of late January and February 2017 .The Verbal warning was issued to the Claimant in response to a specific incident ,where as a direct consequence of her conduct , where she and another attempted to undermine the authority of her immediate Supervisor and damaged the workplace morale of the Leisure Centre by involving several of her co workers .The Employer had understood from Mr A and the complainant that the Fitness Instructors were on the verge of a mass walk out and this caused them extreme concern .This was rebutted by the Fitness Instructors themselves . The list of issues relied on by Mr A and the claimant were drawn up and submitted by the claimant.

The Employer submitted that the Centre was in its infancy at two years in being and Disciplinary Procedures may not have been perfect. However, the employer believed that a verbal warning was fair and equitable, allied to some dialogue between The Manager and the claimant to provide clarification of the role held by her.

The Employer commissioned an external Documentation Review by a named Hr Practitioner who documented a meeting she held collectively with the Fitness Instructors on 31 March 2017 .This recorded some disquiet amongst the group which was self contained and not flagged with the claimant .The Report reflected the views stated by the Fitness Instructors as hoping that the incident could be forgotten about and they wished to have no further involvement .The Findings of the Investigation formed part of the Employers submission .These findings sought to address some opinions of the author on the root cause analysis of the Dispute .Neither Ms B nor the claimant were contributors to this exercise The report recommended the Employer should seek mediation as a means of moving forward in the case .

The Employer was keen for the claimant to resume work and had sought guidance and support from their Occupational Health Advisors.

Findings and Conclusions:

I have given careful consideration to both oral and written submissions in this case. I accept that the claimants work was not a concern to the employer before the events which unfolded in late January and early February 2017. However, the claimant was out of the workplace on medically certified sick leave attributed to the circumstances surrounding this case for over three months by the date of hearing. It was very clear to me that both parties continue to retain a high level of disappointment over the events as described, however I accept that the claimant is the only party not at work.

During my investigation of this dispute, I found that the work climate destabilised due a real apprehension that the core team of Fitness Instructors were about to resign, thus causing an immediate knock on affect on the integrity of the business. I am conscious that some of this destabilisation arose while Ms B was away in Dublin for three days .I have to conclude that the claimant may have over placed her trust in the suggestions made by Mr A .I found this to be regrettable and a situation that should have been easily managed on an informal basis .However , the stage became over populated and the core concern for   company integrity was permitted to   become personalised and reduced to an Inter professional conflict between Ms B and the claimant and was   not sufficiently  supported by fledgling   employment policies and procedures .The role played by the Board of the Company was precipitous and unnecessary in this regard . A Board of A Company is expected to have an executive function rather than an Operational one. However, issues like this are never one persons fault and it will take collaboration to put things right.

I have read the “ list of issues “ associated with the core concerns of the Fitness Instructors, Mr A and the claimant and I was surprised to observe the enormous harm that has been generated by this document to both parties .Given that they have since clearly been rendered null and void and have generated such hurt ,I recommend that they should be shredded immediately .Instead , I believe that the parties would benefit from a proper staff communication forum to encourage an open and overt communication style supported by agreed minutes .

I have considered the sanction of verbal warning and I have reviewed the reference to grievance and disciplinary procedures contained in the complainant’s contract.

Grievance Procedure: At first instance, it permits a hearing by the Company Board with the next step being external third parties, such as WRC .This is a totally inadequate grievance procedure with limited opportunity for real Dispute Resolution.

Disciplinary Procedure: At first glance, refers to the potential for an infringement of a term of contract or company rule, depending on gravity to a series of warnings.

As these were the sole references to Policies presented to me , I have reflected on their linkage to the events as described by the parties .I have taken some guidance from the   Statutory Code of Practice on Grievance and Disciplinary Procedures

“ Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in affair and consistent manner , grievances are handled in accordance with the principles of natural justice and fairness ….the maintenance of good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed “

The Code goes on to state that these are fundamental documents to the working relationship and should be circulated and understood in all workplaces .The procedures are bound to comply with the general principles of natural justice and fair procedures to include

1 That employee grievances are fairly examined and processed

2 That details of any allegation or complaint are put to the employee concerned

3 That the employee concerned is given the opportunity to respond in full.

4 That the employee concerned is permitted representation.

5 That the employee concerned has the right to a fair and impartial determination of the issues concerned.

Both parties accepted that the claimant was invited to an Investigatory meeting on February 7.This was against the backdrop of Mr A having had his employment terminated. The report of the issue compiled by Ms B on 14 February indicated awareness that Mr As’ employment could be terminated and the claimant should receive a written warning.

I am not satisfied that the claimant was on notice that a Disciplinary Procedure was being invoked in her case. The only reference to investigation in the Disciplinary Procedure is associated with dismissal .I have found that the claimant inadvertently entered a process where the issues were not fairly or impartially determined as the guardians of the Investigation meeting were essentially judges in their own cause. The fact that the issues then went on to be collectively debated and decided on by the Board who appear to have some benefit of reportage from Ms B and the Chairman , but none from the claimant is an error of cardinal status . The claimant was not provided with an internal appeal.

While I have found serious shortcomings in the procedural framework relied on by the employer, inclusive of the interim report compiled for the company, I find that both parties expressed a genuine desire for the claimant to come back to work and move forward in the best interest of the success of the company.

In light of the substantial procedural shortcoming associated with the issuing of the verbal warning, I find that the warning should be revoked.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have concluded my investigation into the dispute and I have heard the parties on their preferred options for resolution of the Dispute.   A hallmark of the first steps of resolution in this dispute will be the claimants return to work .In order to assist this ,I recommend that

1. Both Ms B and the claimant should enter a mediation process to move forward from this issue and address a mutually acceptable system of work at the centre where both roles are mutually understood and respected .This should commence immediately and be overseen by the Chairman of the Company.

2 The claimant should be facilitated in this by the provision of Counselling as recommended in the Occupational Health Report .The Claimant should also be restored on the pay roll to permit a dignified return to work within 4 weeks of this recommendation.

3 The Employer should commission a workable set of Grievance and Disciplinary Procedures supported by a Staff Communication Forum.

4 The Verbal Warning of February 20, 2017 is revoked and confirmed in writing to the claimant.

Appeal of Verbal Warning