ADJUDICATION OFFICER RECOMMENDATION

Adjudication Recommendation Reference: ADJ-00006155

Dispute for Resolution:

Date of Adjudication Hearing: 27/02/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Lansdowne House, Ballsbridge, Dublin 4

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 30^th November 2016. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. I proceeded to a hearing on 27^th February 2017 and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant was represented by SIPTU and the Respondent was unrepresented, with the HR and Depot Managers giving evidence on its behalf. All oral evidence, written submissions and supporting documentation presented by both Parties have been fully taken into consideration.

Background:

The Complainant seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to sanctions imposed by the Respondent, comprising of a final written warning which he seeks to have expunged from his file along with reimbursement of a two week unpaid suspension.

Summary of Complainant’s Case:

The Complainant has been employed by the Respondent since July 2005 as a Depot Operator. On 5^th August 2016, he was called to a meeting by his Depot Manager (hereinafter also ‘his Manager’) to discuss performance issues, accompanied by a Shop Steward. The Complainant contended that his Manager had been “very abusive” to him and had spoken to him “inappropriately” at the meeting. He had become upset and stressed and left the office briefly before returning to inform his Manager that he felt unwell and needed to go home and also to see a Doctor. He also informed both the Shop Steward and his Team Leader before leaving work early and had followed correct procedures in this respect. By letter dated 21^st October 2016 as furnished, his Doctor certified the Complainant as suffering from “work related stress and anxiety” and as being unfit for work from 5^th August 2016 until 9^th October 2016. No minutes of the meeting were taken or agreed, the record of which was disputed during an ensuing disciplinary process. In particular, his Manager gave a different account of what had materialised at the meeting and denied giving him permission to leave the site.

On 12^th October 2016, the Complainant received a phone call from his Manager at 11.30am, advising him that the Company Doctor had cleared him to return to work at 2pm on the same day. He was also advised that upon his return to work he was required to attend a meeting with the HR Manager and his Manager. Nothing was put in writing and no further detail was provided, and he assumed that the meeting was in relation to his return to work from sick leave. However, on arrival, he was informed that it was a disciplinary meeting for which no prior notice had been given and for which he had no time to prepare. He sought a short adjournment to consult with the Shop Steward who was also unaware of the meeting. Again no minutes were taken and the detail is in dispute. However, what is not in dispute is that at the meeting, the Complainant was issued with a final written warning to remain on his file for 12 months and a two week unpaid suspension period with immediate effect. This was formally communicated by the HR Manager in a letter dated 17^th October 2016 which also set out the Respondent’s account of what materialised on 5^th August 2016. It also confirmed that the Complainant was being disciplined for leaving the site without his Manager’s permission in accordance with Company procedures amounting to gross misconduct and was informed of the sanctions at the meeting. The Complainant appealed this decision by letter dated 14^th October 2016. In a letter dated 20^th October 2016 to the HR Manager who conducted the disciplinary hearing, he disputed the Respondent’s account of what had materialised at the meeting of 5^th August 2016. A meeting to discuss his appeal took place with another HR Manager on 1^st November 2016. It appears that the Complainant was interviewed on 25^th October 2016 regarding his appeal and other witnesses including his Manager were interviewed on a subsequent date before the meeting of 1^st November 2016. His appeal was unsuccessful as communicated at the meeting of 1^st November 2016 and by letter of the same date, also confirming that the Management’s account of what had materialised on 5^th August 2016 was preferred over his account. This account of the disciplinary process was not substantially put in issue on behalf of the Respondent at this hearing.

The Complainant’s Union Representative submitted that not only was there no basis for the disciplinary action in question as the Complainant had adhered to correct procedures, there had been a breach of fair procedures and natural justice in relation to the disciplinary procedures adopted. In particular, issue was taken with the holding of a disciplinary meeting on the day the Complainant returned to work from sick leave at short notice, without any notice that it was a disciplinary meeting and without providing the details of the allegations to be put to him at the meeting. It was also contended that the Complainant’s Manager exercised a direct bearing on the outcome and he was entitled to a hearing before a Manager not directly involved in the incident giving rise to the disciplinary meeting. Furthermore, the fact that Management’s intention to impose sanctions was communicated to him at the meeting suggested that this was pre-determined. Likewise the communication to him at the appeal meeting that his appeal had been unsuccessful also suggested a pre-determined outcome without any serious consideration of the points made by the Complainant. The absence of a written record of the meetings/hearings in question also meant that no independent examination of the Management’s decision-making process could be undertaken. Since the disciplinary process, the Complainant has remained off work on sick-leave.

It was acknowledged that the relationship between the Parties had become ‘toxic’ with little chance of recovery. It was submitted that if the Complainant returned to work with the final written warning remaining on his file, he was at serious risk of losing his job given the difficult relationship prevailing between the Parties. It was accepted on behalf of the Complainant that there was a difficult history between the Parties although contended that he had a clear record for the past four years. It was not in dispute that whilst out on sick leave, he had received six weeks full pay and six weeks half pay. There were no recent medical reports from either side confirming his current prognosis or whether or not he was or would be fit to return to work. The Complainant sought a recommendation that the final written warning be expunged from his file along with reimbursement of the two week unpaid suspension. When asked whether the Complainant was seeking any resolution of the underlying issues between the Parties, currently relating to his productivity and performance, his Union Representative confirmed that this was not being sought at this juncture.

Summary of Respondent’s Case:

The Depot and HR Managers on behalf of the Respondent submitted that there was an ongoing dispute regarding the Complainant’s productivity and performance. They contended that he had repeatedly and consistently performed 50% under the average ‘pick rate’, being the rate at which goods are collected by an operator for dispatch. Whenever his productivity was brought to his attention, the Complainant refused to accept same on the basis that there was no agreed ‘pick rate’. In response to this, it was contended that work studies had been conducted and had been verified with the Union and it was only the Complainant that was raising this issue. It was contended that the disciplinary action in question was justified in circumstances where he had walked out of the meeting of 5^th August 2016 with his Managers to discuss his performance and had left the site without his Manager’s permission contrary to Company procedures as confirmed in the Disciplinary Procedures furnished. The Managers also stood over the disciplinary process adopted. It was confirmed that the Complainant had been paid his full sick-pay entitlement in accordance with the Company Sick-Pay Scheme when it had a discretion against a history of habitual sick leave. The Managers were also of the view that the employment relationship had irrevocably broken down, and indicated that it was likely to come to a natural end shortly for unrelated reasons.

Findings and Conclusions:

Firstly, the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations, and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” Therefore my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am not satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases for a Company of its size. In particular and given the serious ramifications of a final written warning and suspension, the Complainant and/or his Union Representatives should have been given reasonable notice of the disciplinary meeting of 12^th October 2016 and the nature of same. In circumstances where there was a dispute as to the facts giving rise to the disciplinary action, statements from those who witnessed what materialized on 5^th August 2016 should have been obtained and furnished to the Complainant in advance of the disciplinary meeting. The communication of sanctions at the disciplinary meeting would tend to indicate predetermination as alleged. It is also good practice to retain minutes of such meetings. I do not consider these deficiencies to be cured by the appeal hearing in circumstances where the Respondent’s version of what occurred was preferred over that of the Complainant without affording him the opportunity to challenge same and without providing any reasons for so finding.

Having witnessed the demeanor and interactions between the witnesses, I am also satisfied that there is a long-running history of difficulties between the Parties and at the time of the disciplinary process in question, there was a dispute about the Complainant’s productivity levels. Whilst not excusing same, I am satisfied that the shortcomings in the process arose from his Managers’ frustration at the current impasse regarding his performance. I am also satisfied that the Respondent acted reasonably in honoring the Company Sick-Pay Scheme in the circumstances. Finally, I note that the employment relationship between the Parties is unlikely to improve given its difficult history and further, that the relationship may come to a natural end for unrelated reasons.

Recommendation: (strictly pertaining only to the particular facts of this Dispute)

Based on the aforesaid reasoning, I recommend that the Respondent expunges the written warning from the Complainant’s file forthwith, being his main concern. Having considered the underlying circumstances and fact that the Respondent has honoured its Sick-Pay Scheme, I do not propose recommending reimbursement of the two week unpaid suspension. Overall and acknowledging that both sides have valid arguments, I consider this to be a fair and equitable resolution to this dispute.

If the employment relationship does not come to a natural end in the short-term as anticipated, the Respondent might consider having the Complainant medically assessed and explore alternative means of addressing the ongoing difficulties between the Parties such as independent mediation.

Dated: 05/07/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Industrial Dispute - Fairness of Disciplinary Process - Sanctions