Representatives

David Miskell Mandate Trade Union

Ronnie Lawless IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00007969-001

03/11/2016

The Complainant began employment with the Respondent in October 2011. His role is as a Customer Assistant. The Complainant works on the Night Team and has done so since he commenced his employment. He works primarily in the chill department. The structure of the Night Team consists of 2 Night Managers and 18 night colleagues. The Complainant's Department has a Team Leader and 4 colleagues.

On 8 June 2016, the Complainant was asked by his Team Leader if he had completed a job and further requested that he face off certain products. It is alleged that the Complainant then replied "Yessa masser". When requested to explain these remarks, the Complainant replied that he (the Team Leader) was "acting the master, that's how the Negroes say it."

On the following day, 9 June 2016, a complaint was filed against the Complainant by his Team Leader. The complaint related to insubordinate behaviour, refusing to obey legitimate instructions given by Line Manager and breach of Dignity at Work towards a Team Leader. It was alleged that the Complainant was given instruction to pack items off a cage. It is further alleged that the Complainant said this was not his responsibility as the items were on a cage that was started by someone else. It is contended that the Complainant became quite argumentative at this point. It is further alleged that, when the Complainant was asked to proceed upstairs with members of management, on the basis that the work was always done this way, he replied "You're an idiot".

The Complainant was invited to an investigation meeting on 15 June 2016. At the investigation hearing the Complainant admitted to the allegations that were put to him. On 24 June 2016, after he admitted to the allegations and to the seriousness of his behaviour, the matter was referred to the disciplinary process. The Complainant was invited to a disciplinary hearing, which took place on 19 July 2016.

At the disciplinary hearing, the Complainant again admitted all the allegations and said that he was under pressure to finish his work and got frustrated with the Team Leader who told him to complete the task. On the basis of the evidence presented at the disciplinary hearing it was decided that the Complainant's behaviour was serious misconduct and due to the severe insubordination that occurred, a sanction of final written warning would issue.

The Complainant appealed the sanction due to its severity and an appeal hearing took place on 26 September 2016. The Complainant was represented by his Trade Union representative at this meeting. The Trade Union representative sought a lesser sanction to apply as it would be more corrective than punitive. On 28 October 2016 the outcome of the appeal process issued. The Appeal Officer found that the final written warning was justified and should be upheld.

The Complainant referred the matter to the WRC on 7 November 2016.

The Complainant's Trade Union representative acknowledged that the language used by the Complainant towards the Team Leader was inappropriate. However, it was stated that on the morning in question the Complainant was frustrated by the apparent confusion created by the Team Leader as to what was to be done.

It was submitted on the Complainant's behalf that, at approximately 6:20 AM on the morning in question an interaction took place between the Complainant and another colleague in relation to which cages were to be worked on. It was stated that at this juncture, the Team Leader intervened and told the Complainant to do the cages, in what he (the Complainant) considered to be an aggressive manner. It was suggested that the Team Leader was unaware that the Complainant had additional samples on his cage as opposed to a cage of just juices and sandwiches which were packed out together. It was stated that throughout the course of this confrontation, the Complainant referred to the Team Leader as an "idiot", on the basis that the stock was never packed out in that manner.

It was stated that the Complainant was frustrated with the situation as he felt he was showing initiative by packing out the sandwiches with the other stock as if he had spent time putting the sandwiches onto the juice cage then they would not have been packed out. The Complainant contended that he already had enough work to do was now being asked to do more.

In relation to the incident on 8 June 2016, the Complainant alleged that the Team Leader came into the canteen and asked him in a sarcastic tone "are you stay on break?". It is contended that this remark was made in front of other staff. It was further contended that, later on in the shift, while out on the floor, when queried by the Team Leader if the sandwiches were done the Complainant replied "yes". When the Team Leader further enquired if the juices had been faced off, the Complainant replied "no". It is contended by the Complainant that, in his view, the Team Leader was aggressive in his tone and, as a result, he (the Complainant) replied with the "yes master" comment.

It was contended on the Complainant's behalf that his explanations for the incident were not listened to by the company during the course of the investigation and appeal process. It was further contended that the sole focus of the process was on the fact that he said what said and that the context in which the comments were made was not addressed.

The Complainant did not deny what he said but attempted to explain what happened on the morning and the fact that it arose from a confrontation between him and the Team Leader which led to a misunderstanding of the work to be done. The Complainant is of the view that the Team Leader should have clarified in more detail what was to be done before reacting in the manner in which he did.

While the Complainant acknowledges that he made the comment to the Team Leader, he stated that it was in response to what he felt was an aggressive tone by the Team Leader towards him and in addition he referred to the comments made in front of other staff in the canteen.

It was submitted on behalf of the Complainant that in light of the circumstances, a less punitive approach would have been more appropriate in the circumstances, with the possibility of mediation to ensure that both the Complainant and the Team Leader could work effectively going forward. It was further stated that account should have been taken of the Complainant's six years of service and his good work record.

Consequently, on that basis, it was requested, on the Complainant's behalf, that his complaint should be upheld and that the warning issued as a result of the disciplinary process should be rescinded.

The submission on behalf of the Respondent stated that the Team Leader covers all of the departments but spends a great deal of time in the fresh section. In the absence of a manager, the Team Leader helps cover the department in a managerial capacity. The Team Leader supports managers and colleagues implement training, monitors productivity, helping to resolve issues, assisting with rostering, and helping to deliver any store changes. It was submitted that this is also a role of authority and supervision and is an important/valuable role in that regard.

It was submitted by the Respondent that, throughout the entire disciplinary process, the Complainant had accepted that he was insubordinate to his superior. It was also stated that the Complainant had shown no remorse whatsoever for his actions.

The Respondent stated that the "Colleague Handbook" clearly shows that insubordination is regarded as serious misconduct which may result in dismissal.

The Respondent contends that, given the circumstances of the case, they acted fairly and reasonably in the matter. Consequently, the Respondent requested that the sanction emanating from the disciplinary process would be upheld and that the Complainant's complaint would be dismissed.

Having reviewed all the evidence presented in relation to this complaint, I am satisfied that the facts of the case are not in dispute. The Complainant acknowledges that he made the comments that led to the instigation of the disciplinary process, from which a sanction of final written warning emanated.

The basis of the Complainant's submission is that the context in which the comments were made was not taken into account during the disciplinary process and, as a result, the sanction of the final written warning was too punitive.

In support of the Complainant's case, it was contended that he had also shown remorse for the comments made. However, following a detailed review of the minutes of the various meetings that took place during the disciplinary process, as presented in evidence to the hearing. I find little evidence to support this contention.

On the contrary, there is evidence contained in the meeting records to suggest that the Complainant was rather defiant in his attempts to justify his comments to the Team Leader. At one point during the meeting of 15 June 2016, the Complainant confirmed that he had called the Team Leader "an idiot". It appears on the record of the meeting, that the Complainant tried to justify his comment on the basis that the Team Leader had made "an idiotic statement".

The above is one of many examples which belie the Complainant's contention that he was remorseful for his behaviour. This view is further confirmed by the Complainant's response to a question as to whether he could understand why the Team Leader might have been upset at been spoken to in that manner. The Complainant stated that he could not understand why the Team Leader was upset because "it comes easy to him".

Irrespective of how an employee might feel about the competence or otherwise of a line manager, it does not justify inappropriate and disrespectful behaviour towards that manager. There are clearly processes in place whereby grievances with one's superior can be raised and addressed. Taking the matter into one's own hands in the manner in which the Complainant did on this occasion is not acceptable.

In addition, I find that the tone and tenor of the Complainant's interactions with the Team Leader which was further reinforced, rather than ameliorated, during the disciplinary process, to have been particularly disrespectful.

Consequently, taking all of the above into consideration I am satisfied that the sanction of a final written warning, which resulted from a disciplinary process carried out in a fair and reasonable manner, was both justified and proportionate in the circumstances.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend that the final written warning sanction, imposed as a result of the disciplinary process, should remain on the Complainant's personnel file for a 12 month period commencing 8 August 2016, which was the date the sanction was originally communicated to the complainant.

Disciplinary Process

Final Written Warning

Insubordination