Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Childcare Facility

Representatives

The Complainant attended the Hearing in person and did not have representation.

The Respondent did not attend or was not represented at the Hearing.

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-00014833-001

04/10/2017

The Complainant is employed by the Respondent as a Childcare Worker at its childcare facility. The Respondent initiated disciplinary proceedings against the Complainant in accordance with its internal disciplinary procedures arising from two incidents that occurred in the workplace on 4 May, 2017 and 26 May, 2017. The Respondent carried out an investigation in relation to these incidents and it was found that her actions had breached the following policies:

·         Neglect of duties and responsibilities,

·         Inadequate supervision of child/children,

·         Action of omission which endangers the health and safety of children, other employees or members of the public.

The Complainant was subsequently issued with a written warning on 30 June, 2017 following the conclusion of the investigation in relation to these incidents. The Complainant disputed the findings of this investigation and informed the Respondent that she wished to appeal this sanction. The appeal hearing was scheduled to take place on 24 July, 2017 but was subsequently postponed.

The Respondent wrote to the Complainant on 17 August, 2017 indicating that the Board of Management wished to work with her to try and reach a satisfactory conclusion in relation to the matter due to the initial confusion regarding which incident she was being called to discuss and the ongoing delays with the disciplinary appeal. The Respondent identified two potential solutions to resolve the matter, namely: to continue with the disciplinary appeal meeting, or alternatively, the disciplinary sanction would be reduced from a written warning to a verbal warning, if the Complainant agreed to undertake supervised revision during working hours of best practice in sleep safety and supervision of children.

The Complainant subsequently informed the Respondent that she was not satisfied with the proposed solutions and that she wished to pursue the appeal. The Complainant commenced a period of maternity leave in October, 2017 and the matter remained unresolved between the parties. The disciplinary appeal hearing did not take place prior to the Complainant commencing this period of maternity leave.

The Complainant was informed by the Respondent by letter dated 10 January, 2018 that on further review the Board of Management had decided to expunge the written warning from her personnel file relating to the incidents that occurred on 4 May, 2017 and 26 May, 2017. The Respondent indicated in this letter that as a result of the practices identified by the Complainant the previous year, it has been decided that further training on policies, procedures and child safety would be rolled out to all staff over the coming months. It was also indicated to the Complainant that she would be included in this training on her return to work following maternity leave.

The Complainant is due to return to work in May, 2018 following the expiry of her maternity leave.

The Complainant claims that the sanction imposed on her arising from the incidents on 4 May, 2017 and 26 May, 2017 was unfair and disputes the findings of the investigation that she had breached the internal policies relating to the care of children.

The Complainant claims that the sanction of a written warning was disproportionate in relation to the alleged breaches of policy and that she should have been given a verbal warning prior to the written warning in accordance with the internal disciplinary procedures. The Complainant also claims that the Respondent failed to afford her reasonable notice prior to the disciplinary investigation meeting on 6 June, 2017.

The Complainant acknowledges that the Respondent has indicated by letter dated 10 January, 2018 that the written warning has been expunged from her personnel file and she stated that this obviates the requirement to proceed with an appeal in relation to the disciplinary sanction at this juncture. However, the Complainant contends that the manner in which this matter was dealt with by the Respondent was totally unsatisfactory from her perspective and has caused her unnecessary stress and upset during her period of maternity leave.  

The Complainant claims that she had informed the Respondent that she wished to appeal the disciplinary sanction imposed on 30 June, 2017 but the company failed to proceed with the disciplinary appeal meeting prior to her departure on maternity leave in October, 2017. The Complainant claims that the matter was left unresolved at that juncture which added to the resultant stress and she did not have any further communication from the Respondent until she received the letter dated 10 January, 2018.

The Complainant claims that this matter should have been dealt with in a more expedient manner by the Respondent and should not have been allowed to remain unresolved after she had commenced her period of maternity leave.

The Respondent did not attend the oral hearing in relation to this dispute.

The Respondent’s representative wrote to the WRC on 11 January, 2018 to confirm that the Complainant’s complaint (i.e. in relation to the written warning) had been managed within the company with the warning expunged from her file. It was indicated that the Complainant had been made aware of this by letter dated 10 January, 2018 and she had been requested by the Respondent to inform the WRC of this and withdraw her complaint. It was also indicated that the Respondent had deemed the matter to be closed, and therefore, would not be in attendance at the hearing on 18 January, 2018.

It is clear that the dispute which initially prompted the Complainant to refer this matter to the WRC for adjudication under Section 13 of the Industrial Relations Act 1969 related to the disciplinary proceedings which were initiated against her arising from two incidents in the workplace which occurred 4 May, 2017 and 26 May, 2017. The internal disciplinary process that was conducted by the Respondent in relation to these incidents resulted in the Complainant being issued with a written warning.

The Complainant was informed by the Respondent by letter dated 10 January, 2018 that the written warning had been expunged from her personnel file. The Respondent also indicated to the Complainant at that juncture that as far as the company was concerned the matter was closed and that this negated any requirement to adjudicate on the present complaint.

The Complainant acknowledged at the oral hearing that the written warning had been expunged from her personnel file and confirmed that she did not wish to pursue this particular issue any further through the Respondent’s disciplinary internal disciplinary procedures. However, the Complainant also confirmed that notwithstanding the fact that the written warning had been expunged, the present dispute was not fully resolved from her perspective, and therefore, she did not wish to withdraw the dispute under Section 13 of the Industrial Relations Act 1969.

The Complainant indicated that a key element of this dispute relates to the manner in which the Respondent dealt with the disciplinary process and the length of time that it took to take the decision to expunge the written warning from her personnel file. In particular, the Complainant contends that this matter should have been dealt with in a much more expedient manner and she claims that the very fact of this matter being left unresolved upon the commencement of her maternity leave was the cause of unnecessary stress and upset during the latter stages of her pregnancy.

I am satisfied that the issue regarding the manner in which the Respondent conducted the internal disciplinary process and the alleged unreasonable delay in dealing with this matter comes within the scope of the present dispute under Section 13 of the Industrial Relations Act 1969.

In considering this issue, I note that the Complainant informed the Respondent that she wished to proceed with the appeal in relation to the sanction of a written warning in mid-August, 2017. However, the appeal did not subsequently take place and the matter remained unresolved up to the point where the Complainant commenced maternity leave in October, 2017. The Complainant did not receive any further contact from the Respondent in relation to the matter until she received the letter dated 10 January, 2018 by post to confirm that the written warning had been expunged.

I find that there was an inordinate and unreasonable delay by the Respondent in dealing with this matter and it is clear that the lack of communication from the Respondent and the resultant uncertainty which arose was the source of unwarranted upset and distress for the Complainant during her period of maternity leave.

In the circumstances, I find that the Complainant is entitled to compensation for the distress she experienced as a result of the manner in which the Respondent dealt with the Complainant’s dispute under its internal dispute resolution procedures.

I recommend that the Respondent pay the Complainant a sum of €1,000 in compensation in full and final settlement of this dispute for the distress arising from the manner in which the Respondent dealt with the Complainant’s dispute under its internal dispute resolution procedures.

Industrial Relations Act 1969 – Trade Dispute – Section 13 – Disciplinary Action – Written Warning – Internal dispute resolution procedures - Compensation