ADJ-00004519

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00004519

Parties:

Complaint(s):

Date of Adjudication Hearing: 01/12/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complaint under the Industrial Relations Act 1969 was objected to by the respondent leaving only the complaint under the Protected Disclosures Act 2014 to be decided by me.             

The complainant has been in the employment of the respondent as a sales colleague since 1^st of August 2015 and remains so. He complained in May 2016 on three separate occasions concerning the appropriation and disbursement of monies by his manager and the fact that stock was missing. In this regard he was interviewed on the 19^th inst. by a manager from another store.        Separately he was suspended on the 9^th of June pursuant to a complaint made against him by a colleague (in his own behalf and that of five other colleagues) on the 8^th inst. and a separate complaint made by his manager on that day. Following an investigation (from which he was excluded) and disciplinary process he was issued with a verbal warning for misconduct arising from his assistance “in creating a divide within the store team by virtue of conversations with the sales team leader and had played a part in making the team feel uncomfortable by conversing with a colleague in the Polish language”.

The complainant made written submission and both sides made verbal submission to the hearing. 

Summary of Complainant’s Case: 

The complainant submits that his complaints raised through the respondent’s confidential hot-line whose slogan is “Internal theft could be happening here”, were made in good faith on the 16^th, 18^th and 19^th of May 2016 and amounted to protected disclosures within he meaning of the Act. Furthermore he made protected disclosures to the investigating manager in the course of the investigation into his previous telephone calls including the fact that confidentiality had been breached. It is submitted that the complaints brought against him by his manager and colleagues were directly linked to these protected disclosures, which ultimately led to his suspension and disciplinary sanction consequent upon them. In essence the complaints were made in retaliation for his having made the protected disclosure in the first place. The investigation of the complaints proved as much indicating both substantive and procedural flaw. He was not provided with details of the complaints made against him until after the investigation had concluded despite his having requested the same. He was not interviewed in the course of the investigation nor was he afforded the opportunity to be represented. In this regard the transcripts relating to the investigation were entitled “Grievance Hearing Minutes”. Four of the eight transcripts were anonymised despite the fact that no reference was made to request for anonymity which is provided in the respondent’s procedure. There were no terms of reference nor was he provided with a copy of the report which would be relied upon in any disciplinary hearing. The investigating manager conducted an interview with one of the two main complainants and two of the anonymised witnesses who were of relatively short service simultaneously. The disciplinary manager refers to “my investigation” in a letter of 19^th of July 2016. The role of the disciplinary manager is to make a decision concerning the application (or otherwise) of discipline based on the findings of fact arising from the investigation.

The disciplinary manager was unaware of the names of the anonymised witnesses. The disciplinary manager was advised that it was not an offence to speak in Polish and was asked to consider the complainant’s previous good record but gives no indication that he did so. He was refused an opportunity to appeal against the disciplinary sanction. The totality of which amounts to penalisation contrary to s. 12 (1) of the Protected Disclosure Act, 2014. 

Summary of Respondent’s Case:

The respondent submits that no causal link in this case and that therefore it is not well founded. The complainant made his disclosure in mid-May and the complaints made against him were filed on June 8^th by a colleague in his own behalf and that of others and by the manager on the 9^th of June. Complaints were also filed against a temporary manager and another member of staff.

The disclosure issue was investigated and finalised by way of mediation.

The temporary manager had contacted the hot line previously and he was issued with a final written warning as a result of the complaint against him. The other member of staff was dismissed and she had not contacted the hot line thus proving that even if the procedures were flawed as alleged they were applied evenly and equally. In those circumstances any causal link is broken. The simple question to be addressed is whether the respondent’s motivation in disciplining and sanctioning the complainant was justified on the basis of the complaints received in the circumstances described. The disciplinary manager confirmed to the hearing that he had no knowledge of either the parties or the issues prior to his appointment, that he acted in good faith and that there was no investigation report other than the notes provided by the investigator which were given to the complainant. 

Findings and Conclusions:

It is a matter of fact that the complainant made a protected disclosure within the meaning of the Act. It is further a matter of fact that a complaint was made against the complainant by his manager and a colleague in behalf of himself and five others. The question I must address in determining this matter is whether or not there was a causal link between the sanction applied arising from the complaint and that protected disclosure. The complaint made by a staff member in his own behalf and that of five others would suggest that at least in their minds there was a link between the previous investigation (referring to that arising from the protected disclosure) and the complaint. I note that the complaints made were general and that the letter of complaint makes suggestion as to how the matter might be resolved. Similarly the manager makes the link to the protected disclosure viz. “Since the investigation and the fact that there were many blatant lies, I’m scared to say no to Mr X, Ms Y and the complainant. I’m scared to confront them if there is an issue”.

Additionally it is a matter of fact that the confidentiality in respect of the disclosures made by the complainant in telephone and direct communication with the investigating officer was breached. That breach of confidentiality (regardless of where it emanated and I am aware that it may have had more than one source) ought to have ensured that the complaints made against the complainant in this case were treated with extreme caution and qualification by the respondent. 

I do not accept that the different sanctions applied to the temporary manager or the other colleague arising from the complaints evidence the fact that there was no causal link. From my reading of the complaints they were general but specifically levelled. In any event this is a case specific complaint and relates to the herein complainant only.

As a matter of fact the substance of the original complaints seems to me to have been general to the extent of being non-viable in the complainant’s case they were not put to him during the investigation phase. They were selectively put during the disciplinary hearing (he was not for instance accused of having lied to the protected disclosure investigation although the same might be implied from the manager’s complaint) and he was blatantly denied his right’s at natural justice and fair procedure throughout. In its letter of sanction it would appear to me that the respondent is almost clutching at straws. It gives no logical reason for the conclusions reached and in fact would appear to exonerate the complainant in respect of allegations 2 and 3 and essentially finds him guilty of having “numerous private conversations with your STL (sales team leader), which has in part led to unrest, tension and lack of trust and a fearful and hostile environment.” The disciplinary manager goes on to state that “I do not consider that there is any evidence that this has been done willingly or maliciously” – all of which seems preposterous to me.

The process of investigation and discipline were a sham in this case and there was therefore no justification whatsoever in imposing a disciplinary sanction against the complainant other than to penalise him for having made a protected disclosure under the Act.

In these circumstances therefore I am satisfied that the disclosure made in May was an operative consideration leading to the discipline and consequently that there was a causal link between the penalisation imposed and the protected disclosure made.

Decision:  

Section 41 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.

I find that the herein complaint is well founded and hereby require that the respondent pay the complainant compensation in the amount of €10,000 (say ten thousand euro) and that it remove the disciplinary sanction from his file. 

Dated:               17 May 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes